HRH the Prince of Wales v Associated Newspapers Ltd

On an interim application under CPR 31.22, the court may restrict publication or disclosure of documents referred to in a public hearing where there is an arguable case that they contain sensitive confidential information. The court must begin with the strong principle of open justice and require very good reasons for departing from publicity. Relevant considerations include the document’s role and centrality in the proceedings, the risk of a chilling effect on third parties, specific evidence of likely damage, and the desirability of avoiding private hearings. Where the documents have played only a minor role and the protected information can remain confidential without prejudicing the forthcoming hearing, a temporary restriction may be justified.

His Royal Highness the Prince of Wales sought summary judgment in claims alleging breach of confidence and copyright infringement concerning private journals circulated to selected recipients and later supplied to Associated Newspapers Ltd. The immediate application concerned the identities of journals listed in a confidential schedule and information identifying recipients of one journal.

The parties had agreed to preserve some information pending the summary judgment hearing but disagreed about whether the material was arguably confidential and whether an order should be made under CPR 31.22 after the documents had been referred to in public hearings. The issue was whether temporary protection was appropriate pending determination of the substantive application.

1. Interim protection granted. The court ordered, under CPR 31.22, that publication or disclosure of the information in pages 1 and 2 of Confidential Exhibit 2 and the identities of the journals in Confidential Schedule 1 be restrained until judgment on the summary judgment application or further order.
2. The claimant had established at least an arguable case that the names of the journal recipients, the covering private letter, and the identities of particular journals taken from his private office were sensitive private confidential information. The fact that the relevant visits and the existence of private journals were publicly known did not place the identities of the particular journals in the public domain.
3. The approach in Lilly Icos v Pfizer (No 2) [2002] EWCA Civ 2; [2002] 1 WLR 2253 required very good reasons before departing from the normal rule of publicity. The court considered the documents’ role and likely future role in the proceedings, their limited centrality at the interim stage, the possible chilling effect on third parties, the need for specific evidence of damage, and the desirability of keeping hearings public.
4. Those factors favoured protection. The documents were closely connected with the subject matter of the confidence claim, the information was arguably confidential, preservation until the forthcoming hearing would cause no identified damage to the defendant, and third parties were unlikely to obtain the documents. The judge hearing the summary judgment application could make a further order after considering the complete evidence and submissions.

First instance decision. The judgment concerned interim directions and confidentiality protection pending the claimant’s summary judgment application.