Confidence – contract – interim injunction – public domain – public interest
Northern Rock’s advisers prepared a Briefing Memorandum for distribution to financial institutions. The Memorandum was sent only to recipients who signed a letter agreeing to keep its contents confidential. The Financial Times posted ten pages of the Memorandum (a longer document) on its website at FT Alphaville. The national and international media picked up the posting and republished certain of the detail of the Memorandum. Similar detail was also available from other sources.
Whether to grant an interim injunction preventing further publication of the Briefing Memorandum for seven days pending a return date.
Citing the Prince of Wales case, there was an important public interest in the observance of contractual duties of confidence. Whilst the financial difficulties of Northern Rock were of very great public interest, public interest could sometime justify publication of information which is the subject of a confidentiality agreement (LRT v Mayor of London), there was no public interest in the publication of the detailed commercial information in the Memorandum posted by the FT. Whether or not prior publication should lead to the refusal of an injunction required a qualitative and not just a quantative assessment. Continued publication of the detail at the FT website might do further harm. Therefore, applying the Cream Holdings criteria, a short lived injunction was needed pending a full hearing.
This judgment shows a sophisticated approach both to public domain and public interest considerations, rather than the broad-brush approach that is perhaps too often used by judges who have limited experience of media injunctions and limited time within which to make their decisions. The public domain proviso extended to all publications down to the end of the hearing including publications consequential on the FT’s coverage.