Long Beach Ltd & Anor v Global Witness Ltd

A court should publish its full reasons for refusing injunctive relief unless there are cogent reasons for withholding material from the public. This follows from common law principles and, where applicable, Articles 6 and 10 of the European Convention on Human Rights. The position differs where material is confidential and unpublished: withholding it may avoid pre-empting a decision whether to publish. Once confidentiality has been breached, it is ordinarily lost. Comity requires respect for a foreign court’s order, but does not prevent reference to an order made against a person outside that court’s jurisdiction where the order forms part of the basis for the domestic application.

The claimants applied for injunctions requiring Global Witness Ltd to remove from its website allegations, information and documents concerning the claimants’ affairs. The material had already been published and was said to derive from proceedings in the High Court of Hong Kong.

The application was dismissed on 13 July 2007. This judgment determined whether the court’s principal judgment should omit references to the specified documents, the published material derived from them and an order of the High Court of Hong Kong.

1. The application to prevent reference in the open judgment to the specified documents and published information was rejected. The court was required to give full reasons for refusing injunctive relief, subject only to cogent reasons for withholding material from public access.
2. The cases relied on by the claimants, Cream Holdings Ltd v Bannerjee and Lord Browne of Madingley v Associated Newspapers Ltd, concerned confidential information that had not been published. In those circumstances, confidential judgments could avoid pre-empting a defendant’s decision whether to publish further information. The present case concerned material already published, so the same justification did not apply.
3. The court noted that, as stated in Cream Holdings Ltd v Bannerjee, confidentiality once breached is lost for ever. The information in issue was therefore very likely no longer confidential, and publication of the principal judgment was unlikely to affect any claim for damages.
4. Comity required respect for the order of the High Court of Hong Kong. It did not require this court to observe an order made against a defendant who was not subject to that court’s jurisdiction. Since the Hong Kong order formed one of the bases of the domestic application, it would be difficult or impossible to give full reasons without referring to it.
5. Publication of the full judgment was also required, on the assumption that Article 6 applied, unless cogent reasons existed for non-publication. Excision of the relevant material would additionally restrict the defendant’s and others’ Article 10 rights. No good reason existed for excluding any part of the principal judgment from public access.