A national newspaper obtains documents or information from a disgruntled employee (or whistleblower) which the employer considers to be highly confidential. The employer gets wind of the threatened publication and applies for an urgent interim injunction. What factors will the court take into account when deciding whether or not to grant the injunction? The above scenario was recently considered by the High Court in the context of documents which belonged to a bank, which contained client information and legal advice relating to financial transactions. This e-bulletin discusses that case and the points of interest which arise.

In Barclays Bank plc v Guardian News and Media Limited [2009] EWHC 591, the documents in question belonged to Barclays and had been leaked by a Barclays employee to a Member of Parliament who passed them on to the Guardian. The documents contained client information and legal advice relating to financial transactions which Barclays was proposing to set up for the purpose of minimising tax liability. The documents were posted on the Guardian's website for four hours before Barclays obtained an interim injunction in the middle of the night to have them removed. Blake J had to decide whether the injunction should continue until trial (or further order).

The Guardian accepted that the documents were confidential in nature and had been disclosed in breach of confidence. However, it objected to the continuation of the interim injunction on the basis that the level of dissemination that had already occurred had removed any confidentiality in the documents. It also argued that, even if the court considered that the documents were still confidential, this was a case where the Guardian's rights to freedom of expression were engaged and this required the court to apply the statutory regime in section 12(3) and (4) of the Human Rights Act 1998 ("HRA").

Section 12 of the HRA prohibits a court from granting an injunction before trial which might affect a defendant's right to freedom of expression (under Article 10 of the European Convention on Human Rights) unless it is satisfied that the applicant is likely to establish at trial that publication should not be allowed. In making this assessment the court is required to have particular regard to the extent to which (a) the material has, or is about to, become available to the public and (b) it would be in the public interest for the material to be published.

The court held that the interim injunction should continue. In arriving at this decision the judge noted the following:

  • General availability of material on the internet means that the material is likely to lose its confidential character. However, very limited dissemination and only partial dissemination (for example on a remote or expert website that is not generally available to the public without a great deal of effort) may not result in such a loss of confidentiality.
  • On the evidence before him, the claimant did have a sufficiently realistic chance of persuading the trial court that the limited dissemination to date had not destroyed the confidentiality of the material contained in the documents.  
  • In relation to section 12 of the HRA, the strong public interest in the debate which the documents were relevant to, and of the right to freedom of speech generally, were very important. However, this did not mean that journalists should have a complete freedom to publish in full confidential documents leaked in breach of fiduciary duty. It was also particularly important that the courts protect legal professional privilege.  

Although the court held that the injunction should remain in place until trial, the judge noted that there was no reason why the Guardian should not be able to make use of the contents of the documents to inform its opinions, to express them and to stimulate public debate (even if that meant using selective quotations from the documents themselves to illustrate the point).

Comment

This judgment is interesting for a number of reasons:

  • It is a reminder that it is still possible, in certain circumstances, to obtain an interim injunction to prevent the disclosure or publication of confidential information even where there has already been limited dissemination. Much will depend on the extent of the dissemination.
  • It highlights the importance of the claimant acting quickly: the longer the claimant takes to apply to court to stop the publication the less likely the court will be to conclude that the information is still confidential.  
  • It also illustrates that the court will often strive to find a way to strike a balance between the competing policies of confidentiality and freedom of expression. In this case although the court continued the injunction, it made it clear that the Guardian was still entitled to use the information to inform its opinions and stimulate public .