Harrods Ltd. v Times Newspaper Ltd. & Ors

Disclosure in a breach of confidence claim must be confined to documents relevant to the factual issues identified by the pleadings and to evidence admissible at trial. Confidence cannot be invoked to shield iniquity. A defendant who has solid grounds for that defence may obtain disclosure needed to establish it, but may not conduct a general inquiry into the claimant’s affairs.

The permissible breadth of disclosure reflects the scope of the injunctive relief sought. Where a claimant abandons a proposed restraint against future publication of the same or similar confidential information, disclosure must be narrowed to the information relevant to the remaining claim.

Harrods Ltd claimed damages and an injunction for breach of confidence arising from Sunday Times articles about its employment practices. The defendants denied confidentiality and pleaded that publication was justified in the public interest because it corrected a false public image and false denials, and disclosed unlawful employment practices.

Warren J ordered further disclosure concerning the departure of numerous directors and senior executives. He also permitted an appeal on whether a defendant may support a public interest defence with information unknown at the time of publication.

In the Court of Appeal, Harrods undertook not to require the defendants to prove their broader allegations that its public image and denials were false. It also sought to abandon any claim to restrain future publication of information other than the information already published. The resulting issue was whether the disclosure order remained justified and, if so, to what extent.

1. Appeal allowed and disclosure order varied. Disclosure must be directed to the factual issues arising from the pleadings. Its scope depends upon what evidence would be admissible at trial. Documents irrelevant to those issues cannot be ordered merely because they might portray a party unfavourably.

2. The judge’s original order was supportable on the pleaded case. The truth of the defendants’ general thesis about Harrods’ employment practices and public image was then in issue. Harrods’ undertaking that it would not require the defendants to prove the pleaded falsity of that image and the associated denials altered the case. Disclosure could therefore no longer be justified by the need to prove that broader thesis.

3. The observation in Campbell v MGN Limited [2004] UKHL 22 that the press will normally be entitled to correct a false image did not resolve whether a defendant must prove falsity in this context. Falsity had been accepted in Campbell and was not in issue there. The Court of Appeal did not decide that question because of Harrods’ undertaking.

4. Gartside v Outram [1856] 26 LJ Ch 113 established that equity will not protect confidence invoked to shield iniquity. It also supported disclosure where the defendant had solid grounds for that defence and required information from the claimant to prove it. The authority did not permit a wild or roving investigation. The inquiry remained linked to the relief sought, and its width reflected the width of the proposed injunction.

5. The original disclosure order was therefore justified while Harrods sought to restrain future publication of the same or similar confidential information. The defendants were entitled to an opportunity to establish that future publication would expose iniquity and would not be protected by confidence. Once Harrods abandoned the broader restraint, disclosure beyond documents relevant to the information already published was unnecessary. Disclosure was restricted to documents concerning Mr Simonin and Mr Decouvelaere.

6. The court did not determine the general question whether a defendant may rely on information unknown at the time of publication. That issue ceased to be dispositive after the claim and issues were narrowed.

1. Court of Appeal (Civil Division): Allowed the appeal and varied the disclosure order so that disclosure was restricted to documents concerning Mr Simonin and Mr Decouvelaere.

2. High Court, Chancery Division: Warren J ordered disclosure concerning specified former directors and senior executives. He granted permission to appeal on whether a defendant to a breach of confidence claim may rely on information unknown at the time of the alleged breach.

3. Master: Master Price adjourned the issue concerning reliance on information unknown at publication for determination by a High Court judge.