Browne v Associated Newspapers Ltd Rev 1

A prior confidential or intimate relationship does not make every item learned during it private. The court must assess each item in its full context, including the relationship, the nature of the information and how it was obtained. If privacy is engaged, the competing rights under articles 8 and 10 of the European Convention on Human Rights require an intense, proportionate balance.

On an interim restraint application, section 12(3) of the Human Rights Act 1998 places the burden on the claimant to show sufficiently favourable prospects of establishing at trial that publication should be prohibited. Usually this requires probable success, subject to a flexible standard. An injunction must identify the information or class of information with sufficient particularity and cannot be speculative.

The claimant, the chief executive of BP, sought to restrain the Mail on Sunday from publishing information provided by his former partner. The information included alleged use of BP resources for the partner’s benefit, alleged disclosure of BP information to him, the fact of their past relationship, and details concerning a lie told to the court about how they met.

Underhill J granted a wide interim injunction. Eady J continued it only in part and refused to restrain publication of the corporate allegations and the bare fact of the relationship. He also proposed to publish details of the lie in his public judgment. The claimant appealed from [2007] EWHC 202 (QB).

The central issues were the article 8 and article 10 balance, the section 12(3) threshold for pre-trial restraint, the permissible scope of the injunction, and whether the court itself should publish the details of the lie.

1. The appeal was dismissed save for a limited order requiring excision from Eady J’s public judgment. The court upheld the refusal to restrain publication of the allegations concerning BP resources and information, and the bare fact of the relationship. It also refused an injunction concerning the details to which the claimant’s lie related.
2. The court held that the existence of a pre-existing confidential relationship is important, but not conclusive, when deciding whether information is private. The reasonable-expectation-of-privacy inquiry must be applied separately to each item, having regard to the relationship, the information and the circumstances in which it was acquired.
3. Where article 8 is engaged, it must be balanced against article 10 without either article having automatic priority. Under section 12(3) of the Human Rights Act 1998, the claimant bore the burden of showing sufficiently favourable prospects of success at trial. The ordinary threshold was probable success, although the statutory standard remains flexible.
4. It was open to Eady J to find no reasonable expectation of privacy in allegations that a senior executive used corporate resources and personnel for a partner’s benefit. The interests of a large public company, its shareholders and directors could support publication. Publication of the bare fact of the relationship was also permissible because it was necessary background to intelligibly report the otherwise publishable allegations.
5. An injunction restraining publication must be based on evidence of an intended publication of identified information or an identified class. It must state with sufficient certainty what the defendant may not publish. A broad injunction against all confidential or private information obtained during a relationship would be speculative and leave the newspaper uncertain.
6. Following Cream Holdings v Banerjee [2004] UKHL 44, the court held that it should not itself publish in a judgment information that had not yet been published by the media, where doing so could pre-empt publication and a possible damages remedy. Eady J therefore erred in refusing to excise the details of how the claimant and his former partner met. But the claimant’s deliberate lie about that matter was relevant to the article 8/article 10 balance, and he could not show that publication would probably be prohibited at trial. The court ordered excision from the judgment but refused an injunction.

• Court of Appeal (Civil Division): Appeal from Eady J allowed only to require excision of specified details from the public judgment; otherwise dismissed: [2007] EWCA Civ 295.
• High Court, Queen’s Bench Division: Eady J continued the interim injunction only in part, refusing restraint over the corporate allegations and the bare fact of the relationship: [2007] EWHC 202 (QB).
• High Court: Underhill J had granted a wide interim injunction on 6 January 2007.