Northern Rock Plc v The Financial Times Ltd. & Anor

An interim injunction restraining publication of confidential information engages freedom of expression under article 10. The court must make a qualitative assessment of the extent to which the information is already public. It must also consider whether publication is in the public interest, rather than merely whether the information itself is of public interest. Duties of confidence may justify restraint where detailed commercial information remains substantially unpublished and further disclosure may cause harm. Where extracts have already been widely disseminated, an injunction may be futile. At the interim stage, the applicant must show prospects of success sufficiently favourable to justify relief.

The claimant sought interim relief against publication by The Financial Times Limited and persons unknown of confidential financial information contained in a briefing memorandum. Some extracts had previously appeared in the Daily Telegraph and other media. On the hearing date, extensive sections were published on the FT.com FT Alphaville website. The claimant relied on contractual duties of confidence and sought to restrain further publication pending trial. The central issues were the effect of prior publication, the public interest in disclosure, and the threshold for interim restraint under section 12 of the Human Rights Act 1998.

1. Interim injunction granted in part. A short-lived injunction was necessary to permit proper consideration of interim relief pending trial. It restrained further publication of information published only through FT Alphaville, subject to the proviso stated in the order. Restraint was refused in relation to material already published through the Daily Telegraph and other media because an injunction would be futile.
2. An injunction restricting publication engages article 10. The restriction must be no more than necessary in a democratic society to prevent disclosure of information received in confidence. Whether information is already available to the public requires a qualitative assessment. The court must consider the nature, extent and manner of prior publication, rather than simply count the number of publications.
3. The public interest in publication is distinct from the public interest in breaching a duty of confidence. The fact that information concerns a matter of public interest does not itself justify publication. The court must assess whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached. Detailed commercial statistics and projections were materially different from the limited and redacted information considered in London Regional Transport v The Mayor of London [2001] EWCA Civ 1491.
4. Under section 12(3) of the Human Rights Act 1998, the court should not grant interim restraint unless the applicant’s prospects of success at trial are sufficiently favourable to justify the order in the particular circumstances. The court need not determine the balance of probabilities at the interim hearing. The evidence was insufficient for a final determination, but the claim was not so weak that temporary relief was unjustified, applying Cream Holdings Limited v Banerjee [2004] UKH 44.
5. The confidentiality interest was strong in relation to the detailed, unredacted material published on FT.com. There was no demonstrated public interest requiring its immediate publication, and further disclosure might cause harm not already caused.