British Broadcasting Corporation v Harpercollins Publishers Ltd & Anor

Under section 12 of the Human Rights Act 1998, an interim injunction restraining publication requires a real prospect that the applicant will probably succeed at trial. A serious issue to be tried is insufficient.

An equitable duty of confidence protects information only while it retains its confidential character. Where information has become so generally accessible that it is public knowledge, the court will not restrain its future publication merely because the defendant previously disclosed it in confidence. Nor will an injunction be granted simply to deprive a defendant of a benefit or punish a past breach where no further unlawful harm would be prevented. Contractual restraints may raise separate questions.

The BBC sought interim injunctions against Ben Collins, HarperCollins Publishers Limited and Collins Autosport Limited. The injunctions were intended to prevent publication of an autobiography identifying Mr Collins as the driver who played The Stig in Top Gear, and to prevent publication of other allegedly confidential programme information.

The BBC relied on contractual obligations, equitable confidence and, briefly, tortious liability. The hearing was conducted privately under CPR 39.2(a). By the conclusion of the hearing the judge announced that no injunction would be granted. The central questions were whether the identity remained confidential, whether publication would probably be restrained at trial, and whether an injunction could prevent the defendants benefiting from an earlier disclosure.

1. Outcome. No interim injunction was granted against any defendant. The application failed in relation to the identity of The Stig and in relation to the proposed wider injunction concerning other Top Gear information.

2. Section 12. Section 12(3) of the Human Rights Act 1998 required the BBC to show that it would probably establish at trial that publication should not be allowed. The lower threshold of a serious issue to be tried, associated with American Cyanamid Co v Ethicon [1975] AC 396, was not the applicable test. The test in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 was applied.

3. Equitable confidence. Applying the approach in A.G. v Guardian Newspapers (No. 2) [1990] 1 AC 109, Mr Collins was likely to owe an equitable duty of confidence because he understood that The Stig’s identity was confidential. The duty was likely to continue at least until the information ceased to be confidential. The contractual arrangements and surrounding communications supported that conclusion.

4. The press coverage between 19 and 29 August 2010 made the identity so generally accessible that it had lost its confidential character. The court therefore would not restrain future equitable publication. The analysis of Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 1 in Vestergaard Fransden A/S v Bestnet Europe Ltd [2010] FSR 2 was accepted. Schering Chemicals did not establish a general power to restrain publication of information that was no longer confidential.

5. An injunction to prevent benefit from an earlier misuse would be justified only where it prevented further damage caused by unlawful conduct. It was not a proper use of injunctive power merely to punish a past breach or deprive a defendant of a commercial benefit where the relevant harm had already occurred or could lawfully occur. The authorities discussed in Vestergaard, including Terrapin v Builders Supply Co (Hayes) [1967] RPC 375, Roger Bullivant Ltd v Ellis [1987] FSR 172 and Universal Thermosensors Ltd v Hidden [1992] 1 WLR 840, were understood on that basis.

6. The claims against the publisher failed for the same equitable reasons. The contractual claim against the service company did not justify an injunction because preventing that company from publication would confer no practical benefit on the BBC. The court left several contractual construction issues open, including the meaning and scope of the confidentiality clauses.

7. The proposed general injunction was not pursued because the manuscript had not been disclosed and the order would lack sufficient clarity and precision.