Deloitte & Touche Llp & Anor v Dickson & Ors

A disciplinary scheme’s express powers to publish information do not necessarily exclude an incidental power to issue other press notices. Where the scheme confers power to do things conducive to its objectives, publicity may fall within that power, subject to libel and confidentiality constraints.

An express confidentiality provision covering information obtained during disciplinary investigations applies to all information supplied under the scheme, not only material that is inherently sensitive. The public interest may nevertheless justify disclosure. The court must balance confidentiality against freedom of expression, considering the nature of the information, the public importance of disclosure, likely harm, accuracy and the distinction between disclosure to a regulator and publication to the public.

The claimants sought an injunction and declarations concerning a proposed press notice issued by the Joint Disciplinary Scheme. The notice announced that the Executive Counsel had completed investigations and laid complaints against Deloitte and its chairman, summarised the complaints, and stated that a disciplinary tribunal would be appointed.

The claimants alleged that publication exceeded the powers conferred by the scheme and would breach confidentiality. The defendants relied on the scheme’s incidental powers and on the public interest in publication. The central issues were whether the notice could lawfully be issued, which parts contained confidential information, and whether any confidentiality was outweighed by the public interest.

1. Power to publish. The express provisions of the Joint Disciplinary Scheme requiring or permitting publication at particular stages did not imply a prohibition on publication at other stages. The Executive Committee’s power under paragraph 5d(xii) to do things conducive to attaining the scheme’s objectives included issuing a press notice concerning the progress of an investigation. The proposed notice was therefore not ultra vires.
2. Scope of confidentiality. Regulation 52 imposed a wide express obligation covering information supplied to the disciplinary authorities during an investigation. It was unnecessary to show that the information was intrinsically sensitive or commercially valuable. The Executive Counsel’s conclusions, decision to lay complaints and statement of future procedural progress were not information supplied by the claimants. Those matters could therefore be published. By contrast, factual information derived from the claimants’ files and interviews, including information about Deloitte’s recommendations and Mr Scicluna’s involvement, was prima facie confidential.
3. Public interest. Confidentiality may yield to a countervailing public interest. The court conducted a balancing exercise between the claimants’ interest in preserving confidence and the public interest in freedom of expression and confidence in the regulation of accountants and auditors. Relevant considerations included the nature and importance of the information, the likely damage to the communicator, the accuracy of the proposed publication, and whether disclosure was to a regulatory body or to the public generally.
4. Application. The confidential material was narrow and its publication would make the notice more accurate and reduce the risk of public speculation that the claimants were implicated in Mr Ives’s wrongdoing. The balance favoured publication. The claim therefore failed, and the further arguments concerning VNU’s liability, prior publication and libel need not be determined.