Barclays Bank Plc v Guardian News Media Ltd

Confidentiality may survive limited or partial dissemination, particularly where material remains difficult for the general public to access. General internet availability is likely to destroy confidentiality, but the question depends on the information, the confidentiality interest and the likely audience.

In deciding whether to restrain publication, the court must separately assess confidentiality and proportionality under Human Rights Act 1998, section 12. Freedom of expression permits responsible journalism, comment and selective quotation to promote public debate. It does not ordinarily justify publication of complete leaked documents containing confidential commercial information or legally privileged advice where the public debate can proceed without them.

Barclays Bank applied for continuation of an injunction concerning seven confidential internal documents relating to proposed tax-avoidance transactions. The documents had been leaked, supplied to a Member of Parliament, used by the Sunday Times, and then published in full on the Guardian’s website for approximately four hours before an interim order required their removal.

The Guardian accepted, for the application, that the documents were confidential and had been disclosed in breach of confidence. It argued that dissemination had destroyed confidentiality and that restraint would disproportionately interfere with freedom of expression and legitimate public debate about banking and tax avoidance. The central issues were whether confidentiality remained and whether continued restraint was justified.

1. Confidentiality. Applying the probability-of-success approach in Cream Holdings [2004] UKHL 44, the claimant had a sufficiently realistic prospect of establishing confidentiality and breach. General availability on the internet would probably destroy confidentiality, but limited or partial dissemination on an obscure or specialist site might not. The assessment depends on the nature of the information, the confidentiality interest and the likely audience.
2. The Guardian’s website was widely accessible and publication there was extensive. Nevertheless, the claimant had a realistic prospect of showing at trial that confidentiality had not yet been destroyed, including because further publication might have resulted from the Guardian’s own wrongful publication.
3. The question whether confidentiality had ceased was distinct from the proportionality of granting an injunction. An order requiring delivery up of all copies and prohibiting any reference to the documents would have been unrealistic and disproportionate.
4. Freedom of expression protected the Guardian’s ability to use the documents to inform opinion, express views and stimulate debate about the conduct of major financial institutions. However, it did not confer an unrestricted right to publish leaked confidential documents in full. The sensitivity and extent of the proposed publication were material, and legal professional privilege was a significant interest requiring protection.
5. Publication of the complete documents was not necessary to advance the public debate. Restraint of full or partial publication was therefore likely to be proportionate. The injunction was continued in modest terms, preventing publication or supply to third parties other than public authorities, and incitement of third-party publication, subject to an exception for publication in the United Kingdom national media and liberty to apply.

This was a first-instance application. Ouseley J had granted an interim injunction requiring removal of the documents from the Guardian’s website and restraining disclosure pending further order. The application for continuation was determined by Blake J.