PQR & Anor v Pressdram Ltd

Interim relief for breach of confidence requires a realistically enforceable duty of confidence owed by the relevant person. Confidentiality does not arise merely because disciplinary or regulatory material is marked private, or because a body would prefer that it not be disclosed. The court should consider whether the information has an inherent quality of confidence and whether it was imparted in circumstances making confidentiality clear. Where the recipient was expressly told that the material could be used as he saw fit, those requirements are unlikely to be met. Without a duty of confidence, the claimant cannot satisfy section 12(3) of the Human Rights Act 1998. Any separate public-interest or public-domain issues may therefore remain hypothetical.

The claimants, anonymised as PQR and STU, sought an interim injunction restraining Pressdram Ltd from publishing in Private Eye information contained in an opinion of the Scottish Legal Complaints Commission. The opinion concerned a complaint about the handling of allegations that the solicitor and his firm had acted despite a potential conflict of interest.

The application was made on the basis of breach of confidence. Defamation was not relied upon. The central issues were whether the complainant or the publishers owed an enforceable duty of confidence and, if so, whether publication should nevertheless be permitted in the public interest.

1. The injunction was refused. The claimants had no likelihood of success at trial because no enforceable duty of confidence was established, as required by section 12(3) of the Human Rights Act 1998.
2. The statutory regime did not determine the confidentiality issue. Although the legislation appeared to contemplate confidentiality within the disciplinary process, it did not itself impose a corresponding obligation on complainants or other recipients. Such an obligation would need to be imposed expressly, whether in equity or contract, at the outset of the process.
3. Applying the approach in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, the court considered whether the information possessed an inherent quality of confidence and whether it had been imparted in circumstances making confidentiality clear. Neither requirement was satisfied. References to material as private or confidential, coupled with expressions of preference that it not be disclosed, did not create a legally enforceable duty.
4. The opinion had been sent to the complainant without any confidentiality requirement. In response to his query, he had been told that he was entitled to use it as he saw fit. That was a substantial obstacle to any claim that he owed a duty in contract or equity. The position was confusing and potentially unfair, but that did not create a legal obligation.
5. Had a duty existed, the judge would probably have concluded that the public interest did not justify overriding it. This was a hypothetical observation, informed by Prince of Wales v Associated Newspapers Ltd [2008] Ch 57. The judge also considered that the information was not shown to be so generally accessible that it had ceased to be confidential, applying the approach in Att-Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109.
6. The decision concerned interim confidentiality relief only. If the defendant published allegations, it might face a claim in libel. Privacy, anonymity and any protection pending an appeal were left for further consideration.