Long Beach Ltd & Anor v Global Witness Ltd

On an application for interim injunctive relief concerning publication of allegedly private and confidential material, the claimant must show that publication is unlikely to be permitted at trial. The court must give particular regard to freedom of expression, including the public interest in journalistic material. Where documents referred to in open court disclose matters suggesting possible misconduct by public officials, there may be a powerful public interest in their publication and public scrutiny. Confidentiality will not ordinarily be enforced to conceal material alleged to reveal misconduct. An order of a foreign court made ex parte against a person not subject to that court’s jurisdiction does not bind the person in England, although it is entitled to appropriate respect.

The claimants sought interim injunctions requiring Global Witness Ltd to remove from its website documents and information obtained through Norwich Pharmacal proceedings in Hong Kong. The material concerned the second claimant’s credit-card expenditure and the first claimant’s ownership and dealings involving offshore companies. The claimants relied on confidentiality, privacy, article 8 of the Convention and alleged misuse of documents. They also initially relied on section 25 of the Civil Jurisdiction and Judgments Act 1982 in aid of the Hong Kong proceedings, but abandoned that basis after the court questioned whether Global Witness was subject to the jurisdiction of the Hong Kong court.

The central issue was whether the claimants were likely to establish at trial that publication should not be allowed, having regard to freedom of expression and the public interest in the publication.

1. Application dismissed. The claimants had not shown that they were likely to establish at trial that publication should not be allowed.
2. Under section 12(3) of the Human Rights Act 1998, the claimants had to show a probable entitlement to final injunctive relief. Section 12(4) required particular regard to the importance of freedom of expression and, where the material was journalistic, to its availability to the public and the public interest in publication. The guidance in Cream Holdings v Bannerjee was applied.
3. The specified documents had been referred to in open court in Hong Kong. On the evidence, the claimants had not established that they were likely to show at trial that the documents remained protected by confidentiality. The court proceeded on the basis that the reference was sufficient to remove confidentiality if the disclosure had occurred in open court in England.
4. Comity required respect and even deference towards the Hong Kong judgments and orders. It did not make them binding on Global Witness, which had not been a party to the earlier proceedings and was not subject to the Hong Kong jurisdiction. The English court was entitled to determine the application under English law and to refer publicly to the Hong Kong order where withholding it would give a misleading account of the relevant events.
5. There was a clear and overwhelming public interest in publication. The material suggested that the second claimant was the concealed beneficial owner of an offshore company, that the company had oil dealings connected with companies involved in sham transactions, and that substantial personal expenditure had been paid for by that company. The court considered that the public interest in scrutiny of possible misconduct by a public official outweighed the remaining confidentiality, privacy and article 8 interests.
6. The principle that the courts will not enforce confidentiality to conceal material alleged to show misconduct was applied from Initial Services Ltd v Putterill, whose approach had subsequently been approved by the House of Lords in British Steel v Granada Television. Publication of the entirety of the credit-card statements was not excessive merely because the allegations could have been made by publishing less material; there was a public interest in showing precisely what expenditure had been paid for by the company.