Doncaster Metropolitan Borough Council v British Broadcasting Corporation

An interim injunction restraining publication of confidential information requires evidence of a threat to publish, together with identification of the information said to be confidential or private. Access to confidential material, without evidence of threatened publication, is insufficient. Applications without notice must comply with the procedural safeguards in the Civil Procedure Rules 1998, the Practice Direction and, where freedom of expression is engaged, section 12 of the Human Rights Act 1998. Those safeguards protect the respondent’s right to know and answer the case advanced against it.

Doncaster obtained an out-of-hours, without-notice order restraining the BBC and others from publishing any information from a Serious Case Review or its executive summary concerning serious offences committed by two children. The BBC had access to the documents and intended to broadcast a programme about the matter. Doncaster had not identified particular confidential information, notified the BBC of any objection, or provided evidence of a threat to publish confidential or private material. The application before Mr Justice Tugendhat was whether the order should be continued.

1. Application refused. The order restraining the BBC from publication was not continued.
2. An injunction restraining publication of confidential information requires evidence of a threat to publish confidential or private information. The mere fact that the BBC had access to the Serious Case Review or executive summary was insufficient. The application also failed to identify the particular information said to be confidential.
3. The court did not need to determine the public-interest issue. The passages relied on by Doncaster were either already in the public domain or were minor matters. There was no evidence that the BBC threatened to publish other confidential information.
4. Applications for interim injunctions must follow CPR 25.3 and the Practice Direction. Notice should be given to the respondent. If notice is not given, the applicant must explain why. The requirement is expressed more stringently by section 12(2) of the Human Rights Act 1998 where freedom of expression may be affected, unless there are compelling reasons for proceeding without notice.
5. The Practice Direction requirements for urgent and without-notice applications, undertakings, service of the application and order, and prompt issue of a claim form were not complied with. These requirements are essential safeguards against unfairness and injustice, rather than technicalities.
6. Section 12(3) and (4) of the Human Rights Act 1998 required consideration of the likelihood that publication should be restrained, the importance of freedom of expression, public availability, the public interest in publication and any relevant privacy code. The attention of the duty judge was not drawn to those provisions.
7. An injunction order should exclude matters already in the public domain. Counsel must draw the judge’s attention to departures from the normal requirements of a draft order, as illustrated by Memory Corporation v Sidhu (No 2) [2000] 1 WLR 1443.
8. The refusal of the injunction did not authorise anyone else to publish confidential information. Any future application would need to identify the confidential or private information and provide evidence of a threat to publish it.