London Regional Transport & Anor v Mayor Of London & Anor

An interim injunction which would have irreversible practical consequences requires a court to assess the strength of the claim as well as the balance of injustice. Where publication would affect freedom of expression, the applicant must also satisfy the applicable statutory threshold.

An express contractual duty of confidence does not displace the equitable public-interest balance. The court must protect genuine commercial confidences, but may permit proportionate publication of responsible information on a matter of substantial public concern. Adequate redaction is material: it may remove commercial sensitivity while preserving the public value of the information.

London Regional Transport and London Underground Ltd sought to prevent the Mayor of London and Transport for London from publishing a redacted version of the Deloitte & Touche report on the value-for-money assessment of the proposed London Underground public-private partnership.

Burton J had initially granted a short interim injunction. Sullivan J later discharged it, subject to an undertaking that only the specified redacted version would be published. The claimants sought permission to appeal from that order, contending that the confidentiality agreements required restraint and that the judge had wrongly balanced confidentiality against the public interest and freedom of expression.

The central issue was whether publication of the redacted report should remain restrained notwithstanding contractual confidentiality obligations.

1. Permission to appeal was refused unanimously. Robert Walker LJ, with whom Sedley LJ and Aldous LJ agreed, held that Sullivan J had applied the correct approach to an interim injunction which was effectively final in its consequences. The strength of the claim had to be considered with the balance of injustice, as well as the requirement in section 12(3) of the Human Rights Act 1998.

2. The claimants' reliance on express confidentiality terms did not establish a distinct or stricter rule. A contractual confidence is subject to the same equitable and public-interest analysis as other confidential information. The court applied the balancing principle stated in A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, while recognising that disclosure must go no further than the public interest requires.

3. The redacted report contained Deloitte & Touche's serious analysis of a matter of major public concern. The redactions removed bidder identities, figures and other material capable of harming the procurement process. There was no persuasive case of residual genuine commercial sensitivity, and no need for further redactions. The public interest in informed democratic debate therefore outweighed enforcement of a bare contractual obligation of silence.

4. Sedley LJ added that proportionality supplied a structured method for deciding whether a restriction on article 10 rights was necessary in a democratic society. He considered that public authorities could not use contractual or litigation powers to stifle article 10 rights where no meaningful breach of confidence was threatened. On either the equitable analysis or the human-rights analysis, restoring the injunction would be unjustified.

The order discharging the injunction remained in force. Permission to appeal was refused with costs, subject to detailed assessment.

• Court of Appeal (Civil Division): Permission to appeal was refused in London Regional Transport & Anor v Mayor Of London & Anor [2001] EWCA Civ 1491.
• High Court, Queen's Bench Division (Sullivan J): Discharged the interim injunction, subject to an undertaking limiting publication to the identified redacted report; refused permission to appeal.
• High Court: Burton J had granted a short interim injunction restraining publication pending the later hearing.