Reference:  EWHC 1566 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 21 Jun 2011
Summary: Third party disclosure - breach of confidence - injunction - freedom of expression - fair trial
Instructing Solicitors: MPS/SOCA for the Claimants; Simons Muirhead & Burton for the Defendants
The Claimants, the Commissioner of Police and the Metropolis and the Serious Organised Crime Agency (Cs) sought an injunction to restrain a breach of confidence by the Defendants, TNL and Michael GIllard (Ds), in respect of leaked information which had been referred to by the Ds in a publication.
In a separate action D1 had been sued for libel by the subject of the information (the libel claimant). D1 wished to rely on the information it had already obtained from the Cs for the purpose of pleading a defence in the libel action and sought disclosure of further information and documents for the same purpose.
Was D1 entitled to 3rd party disclosure pursuant to CPR 31.17 from the Cs for use in its defence of the libel action?
The Cs had obligations under HRA 1998 and other statutes to keep certain types of information confidential. Where there had been a disclosure or there was a threatened disclosure, the law enforcement agencies have the right to ask the court to make orders prohibiting such disclosure. D1 had the right to freedom of expression and the right to a fair trial of the libel proceedings.
It was not possible fo the court to be satisfied that disclosure of any documents which were the subject of the breach fof confidence action was necessary to dispose fairly of the libel claim. The Cs ought not to be required to disclose documents for use in the libel action simply because they had brought the breach of confidence proceedings. The libel claimant had disclosure obligations and anything disclosed by him would not need to be disclosed by the Cs.
The only good reason for ordering disclosure was if it ought to be given by the Cs in compliance with the requirements of standard disclosure in the breach of confidence proceedings.The Cs were seeking to protect the rights of individuals under Arts 2 and 8 ECHR as well as their own rights to confidence and were seeking to ensure public safety and to prevent crime.
In order for the court to be in a position to balance the rights of the publishers with the Convention rights of individuals, D1 would have to proceed with the libel action without using the disputed documents and make an application under CPR 31.17 at a later stage.
Where Convention rights are engaged, applications under CPR 31.17 should not be made until the court in a position to carry out the balancing exercise of competing rights. The exercise had be carried out having regard to the specific facts, and on the facts of this case it was impossible for the court to decide by looking at the documents sought whether the publishers’ Article 10 rights required that the documents be deployed in the libel action.