Browne v Associated Newspapers Ltd Rev 1

A confidential relationship does not make every item of information obtained during it private. A reasonable expectation of privacy must be assessed separately for each item, considering its nature, the relationship and the circumstances in which it was obtained. Where privacy and freedom of expression conflict, neither right has automatic priority. An applicant seeking interim restraint ordinarily must establish that publication will probably be prohibited at trial after the competing rights have been balanced.

An injunction requires evidence of intended publication and sufficiently precise terms. A court should ordinarily preserve disputed confidentiality in its public judgment even when refusing interim restraint. A deliberate lie to the court can affect the balance governing newspaper publication without making disclosure of intimate details in the judgment necessary.

Lord Browne of Madingley, the Group Chief Executive of BP, sought to restrain Associated Newspapers Limited from publishing information supplied to the Mail on Sunday by Jeff Chevalier, his former intimate partner. The proposed publication concerned their relationship, alleged use of BP resources for Chevalier’s benefit and alleged disclosure of confidential BP information. Lord Browne deliberately misled the court about the circumstances of their first meeting and later retracted his account.

Underhill J initially granted a wide injunction. Following an inter partes hearing, Eady J maintained protection for some information but permitted publication of other categories in [2007] EW HC 202 (QB). He also decided that his public judgment should include details concerning the lie. Lord Browne sought permission to appeal, restoration of the wider injunction and removal of those details from the public judgment. The central issues concerned the assessment of privacy within a confidential relationship, the threshold for interim restraint and the separate question of what the court itself should publish.

1. Permission to appeal was granted and the appeal was allowed in part. Details of how the claimant and his former partner met had to be excised from the judge’s public judgment. The court nevertheless refused to restrain the newspaper from publishing those details. The remaining challenges to the injunction were dismissed.

2. The reasonable expectation of privacy test applied separately to each item of information. A confidential relationship was an important circumstance, but did not protect everything learned during it. The nature of the information and the circumstances of its acquisition also mattered. Trivial domestic details could attract protection, and business information was not automatically excluded from article 8 (Campbell v MGN; McKennitt v Ash).

3. Neither article 8 nor article 10 had automatic precedence. The court had to examine the comparative importance of the particular rights, the justification for restricting each and proportionality (In re S (a child)). Section 12(3) of the Human Rights Act 1998 placed the burden on the applicant to establish sufficiently favourable prospects of success after that balance. Although the threshold was flexible, the ordinary requirement was probable success at trial, and no departure was justified here (Cream Holdings Limited v Banerjee).

4. The judge’s evaluative conclusions could be disturbed only for an error of principle or a plainly wrong result. He was entitled to find no reasonable expectation of privacy concerning alleged use of corporate resources and disclosure of corporate information. Independently, the interests of shareholders and directors justified his conclusion that the claimant had not established likely success. The alleged conduct’s relative gravity was for those responsible for corporate supervision to assess. BP’s size and numerous shareholders supported press publication rather than communication solely to BP.

   The bare fact of the relationship could be published because it was necessary to make the corporate allegations intelligible. Whether circulation among friends or colleagues alone removed confidentiality was left open.

5. An injunction required evidence of intended publication of particular information or an identifiable class. Its terms had to make the prohibited conduct sufficiently certain. Speculative restraint was impermissible, and the judge properly confined relief to specific categories.

6. A public judgment should ordinarily avoid disclosing disputed confidential information where disclosure would pre-empt the defendant’s publication or undermine a possible damages remedy. The claimant’s lie did not make publication of the intimate meeting details necessary for explanation or sanction. Those details nevertheless attracted article 8 protection, while the fact and content of the serious, persistent lie were relevant to the competing public interest. The claimant failed to establish the requisite likelihood of preventing newspaper publication.

   Corresponding references in the witness statements were also to be excised. Submissions were invited on the precise excisions and consequential amendments to Annex B. The court did not rely on the defamation injunction rule or decide its relationship with breach of confidence.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 295 , permission to appeal was granted. The appeal was allowed concerning disclosure of the meeting details in the public judgment, but otherwise dismissed. An injunction restraining newspaper publication of those details was refused.
2. High Court, Queen’s Bench Division: Eady J continued the initial injunction on 12 January 2007. Following an inter partes hearing on 23 January, he maintained protection in part and refused it in other respects on 9 February, in [2007] EW HC 202 (QB). He also refused requested excisions from his public judgment and stayed his order pending appeal.
3. High Court: Underhill J granted a wide interim injunction on 6 January 2007 restraining publication of relationship details and confidential or private information obtained during the relationship.