Blacker (The Lord Harley) v The Law Society

An interim injunction requires a serious issue to be tried before the court considers the balance of convenience and adequacy of damages. A claim based on a regulator’s voluntary freedom-of-information code does not, without more, give a regulated person a private damages claim. Articles 6 and 8 of the Convention are not engaged merely because regulatory files may disclose professional information, particularly where no private information is contained in the proposed disclosure. Regulatory files belong to the regulator, and the subject of regulation has no proprietary right to their delivery up. A claim disclosing no reasonable grounds should be struck out; alternatively, summary judgment may be entered where the claimant has no real prospect of success.

The claimant, a solicitor, sought injunctive relief restraining the Law Society from releasing redacted documents following a freedom-of-information adjudication. He also sought delivery up of six closed regulatory files and three files concerning ongoing complaints, and claimed damages for alleged breaches of the Data Protection Act and Convention rights.

The Law Society applied to strike out the claim under CPR Part 3.4(2), alternatively for summary judgment under CPR Part 24.2. The central issues were whether the claimant had a serious issue to be tried, whether Articles 6 or 8 were engaged, and whether he had any right to the regulatory files.

1. Interim relief. The claimant’s application for an injunction failed. Under American Cyanamid Co v Ethicon Ltd [1975] ACT 396, the court first asks whether there is a serious issue to be tried and then considers the balance of convenience, including whether damages are an adequate remedy. There was no serious issue, so it was unnecessary to decide the second-stage factors. The absence of any undertaking in damages would ordinarily have been fatal in any event.
2. Voluntary code and Convention rights. The Law Society was not subject to the Freedom of Information Act 2000, but had adopted a voluntary code reflecting the Act. That adoption did not create a damages claim for a solicitor dissatisfied with the code. Any challenge would, if available, be a matter of public law. Article 6 was not engaged because no civil or criminal proceedings concerning the files were involved. Article 8 was not engaged because the files contained no private information about the claimant.
3. Ownership of files. The closed files had been created and held by the SRA in the performance of its regulatory functions. They were the SRA’s property, and the claimant had no proprietary right to delivery up. The same applied to the three ongoing files, which were not intended for disclosure. There was a strong public interest in regulators retaining confidential regulatory files.
4. Final disposal. The claim disclosed no reasonable grounds and was struck out under CPR Part 3.4(2)(a). Alternatively, summary judgment would have been granted under CPR Part 24.2(a)(i), since the claimant had no real prospect of succeeding. The Law Society’s application succeeded.