D v L

Publication of a covert recording of a private conversation concerning private matters is prima facie a breach of confidence. The recording is protected independently of the information it contains. An injunction may therefore restrain use of the recording even where the recorder may describe the conversation or the information has entered the public domain.

Recording for a justified purpose may impose an obligation restricting use to that purpose. Injunctive relief remains discretionary and requires a balance with freedom of expression. Relevant considerations include the recorder’s purpose, any threatened publication, the harm likely to result and the claimant’s conduct.

D and L had lived together for several years. As their relationship broke down, L covertly recorded private conversations with D. The recordings referred to D’s sexual proclivities. L said that she had made them for protection in possible domestic violence proceedings.

In property proceedings between the parties, aspects of that information were disclosed in evidence, recorded in the judge’s public judgment and reported in the press. His Honour Judge Norris QC restrained L’s use of certain documents but refused to restrain publication of identified extracts from the recordings.

D appealed from the Chancery Division. The central questions were whether the judge had misdirected himself by failing to distinguish confidence in the recordings from confidence in their informational content, and whether an injunction should nevertheless be refused in the exercise of equitable discretion.

1. Appeal dismissed unanimously. Lord Justice Waller, giving the leading judgment, held that the judge had misdirected himself by failing to distinguish an obligation concerning information disclosed during a relationship from an obligation arising through the covert recording of a private conversation. Lord Justice Carnwath agreed. Lord Phillips MR agreed in a separate judgment.
2. Equity may impose confidence either because information was imparted within a confidential relationship or because it was improperly or surreptitiously obtained. A covert recording is more than its informational content. The recorded words may have greater impact and cause greater distress than a person’s account of the same conversation. Publication of such a recording may therefore be restrained even though the recorder is free to describe the conversation or the information is already public.
3. The correct starting point was that L had secretly recorded a private conversation about private matters without D’s consent. Recording in shared space and for protection in possible domestic violence proceedings could make the conduct less objectionable. Those circumstances did not entitle L to use the recording for another purpose. Equity could impose an obligation limiting use to the purpose which might justify its creation.
4. The court was nevertheless required to balance confidence against freedom of expression under Article 10 of the Convention on Human Rights. Restricting use of the recording did not prevent L from giving her own account. If D later misled the public by denying the truth, circumstances might arise in which L could seek release from an injunction.
5. The discretionary injunction was refused. L had made the recordings for protection, had neither published nor threatened to publish them, and the identified extracts added little to information already public. D’s offensive and threatening communications also provided substantial grounds for withholding equitable relief. Lord Phillips MR relied on substantially the same considerations.

The appeal was dismissed with costs.

• Court of Appeal (Civil Division): By [2003] EWCA Civ 1169, dismissed D’s appeal unanimously and ordered him to pay the costs of the appeal.
• Chancery Division: His Honour Judge Norris QC restrained L’s use of certain documents but refused an injunction against publication of identified extracts from covert recordings. He had separately directed under rule 39.2(3)(c) of the Civil Procedure Rules 1998 that part of D’s oral evidence be treated as having been given in private.