Browne v Associated Newspapers Ltd

Interim restraint of publication under Human Rights Act 1998 requires an assessment of whether the claimant is likely to obtain permanent relief at trial. The court must examine each category of information separately, first asking whether there is a reasonable expectation of privacy and then balancing Articles 8 and 10 with close attention to proportionality, public domain and public interest. Business use of corporate resources and disclosure of corporate information by a senior executive will generally not attract a personal privacy expectation where shareholders or directors have a legitimate interest in the conduct. By contrast, private expressions made within an intimate relationship may remain protected even when they concern work. A claim framed as confidence or privacy cannot provide an easier route around the rule in Bonnard v Perryman where its true purpose is reputational protection.

The claimant, the Group Chief Executive of BP, sought to restrain publication by the defendant newspaper of allegations supplied by his former partner. The allegations concerned their relationship, alleged use of BP personnel and resources, alleged disclosure of confidential BP material, discussions about BP strategy, and the claimant’s views about BP colleagues. The claim relied on privacy and breach of confidence rather than defamation, although some allegations were said to be false and potentially defamatory.

Interim injunctions had previously been granted and continued in narrower form. The court had to determine whether the claimant was likely to obtain permanent injunctive relief, applying Human Rights Act 1998 and balancing privacy and freedom of expression.

1. Applicable threshold. The court applied s.12(3) of the Human Rights Act 1998 as interpreted in Cream Holdings v Banerjee. The ordinary threshold was that the claimant show he was more likely than not to succeed at trial, subject to the exceptional circumstances identified in that authority. The assessment had to be made on incomplete evidence, but the question was likelihood of success, not whether a contrary trial conclusion would be perverse.
2. Privacy and expression. Articles 8 and 10 had no automatic precedence. The court had to undertake an intense focus on the specific rights claimed, consider the justification for interfering with each, and apply proportionality to both. Each category of information required separate analysis, including whether a reasonable expectation of privacy existed and whether public domain or public interest limited it.
3. Reputational allegations. The policy of Bonnard v Perryman could not readily be avoided by pleading confidence or privacy. Where the true object was protection of reputation, the claimant ordinarily had to overcome the higher threshold applicable to defamatory publication where justification was intended. The alleged misuse of BP resources and disclosure of corporate information therefore did not justify interim restraint: there was no reasonable expectation of personal privacy, the matters were for shareholders and board members to assess, and the allegations could disclose wrongdoing.
4. Protected private communications. The claimant’s private expressions about BP colleagues to his partner were protected because the protection arose from the intimate relationship and circumstances of communication, not merely from the subject matter. Similar protection applied to private conversations and dinner-party discussions, subject to a genuine public interest in exposing serious wrongdoing or preventing serious public deception.
5. Application and disposal. The alleged hypothetical BP strategy was protected because it was a private remark with no real prospect of implementation and no sufficient public interest. The bare fact of the relationship was no longer reasonably private, alternatively having become generally accessible. The injunction remained in force on a substantially narrower basis.