Ministry of Defence v Griffin

A former member of the UK Special Forces who has entered a binding confidentiality agreement cannot decide for himself whether proposed disclosures fall outside the agreement or are justified by the public interest. He must first use the contractual clearance procedure and seek express prior authority in writing. The Ministry of Defence must exercise its judgment lawfully and non-arbitrarily, and an adverse decision may be challenged by judicial review. At the interim stage, the court should not anticipate the outcome of either the clearance application or any later judicial review. A contractual confidentiality obligation may protect information more broadly than an equitable duty of confidence.

The Ministry of Defence sought continuation of an interim injunction against Benjamin Griffin, a former UK Special Forces soldier. It alleged breaches of confidentiality agreements and, more narrowly, of an equitable duty of confidence arising from unauthorised public disclosures concerning his service.

The agreements required prior written MOD authority before disclosure of information relating to the work of, or support for, the UK Special Forces. Mr Griffin had not sought that authority and contended that he should be entitled to judge for himself whether disclosure was confidential, damaging or required by the public interest. The central issue was whether the contractual clearance procedure had to be followed before further publication.

1. Interim relief granted. The injunction was continued until trial or further order. The MOD was likely to succeed at trial in enforcing the contractual clearance procedure.
2. The confidentiality undertaking covered the information described in its terms. It was not limited, at the construction stage, to information which the defendant himself considered confidential or sensitive. The contractual procedure nevertheless allowed the MOD to conclude that information could be disclosed because it was trivial, genuinely in the public domain, or publication was required by a legitimate public interest.
3. The contractual allocation of judgment to the MOD was central. The defendant was not entitled to bypass it by making his own assessment of confidentiality, damage or public interest. The MOD’s decision had to be reached lawfully, rather than arbitrarily or routinely, and could be challenged by judicial review.
4. The court should not anticipate the result of a hypothetical clearance application or judicial review. The appropriate sequence was an application for express prior authority in writing, followed, if necessary, by advice on and pursuit of judicial review. Public-interest arguments about earlier disclosures could not justify bypassing that sequence.
5. The contractual obligation was distinct from an equitable duty of confidence. A freely negotiated contract could protect categories of information which equity, without the contract, might not protect. The negative covenant could therefore be enforced without treating the application as an ordinary balance-of-convenience case.
6. The court proceeded on the assumption that Article 10 was engaged and applied section 12(3) of the Human Rights Act 1998. The relief sought was procedural rather than a blanket prohibition on publication, and the safeguards of the clearance process and judicial review were relevant.

First-instance decision on the MOD’s application to continue an interim injunction. The injunction had previously been granted without notice by Openshaw J and subsequently renewed, most recently by Sullivan J.