Brevan Howard Asset Management LLP v Reuters Ltd & Anor

Where information has been imparted and received in confidence, the Article 10 inquiry is not merely whether publication concerns a matter of public interest. The court must decide whether, in all the circumstances, the public interest justifies breaching the duty of confidence. It must balance the importance of preserving confidence, including candid commercial disclosure, against the public interest in publication and assess whether restraint is necessary and proportionate. Public interest is not confined to exposing iniquity, but sufficiently significant public interest is required to outweigh confidentiality. An appellate court should not interfere with that evaluative decision absent an error of law or principle, or a conclusion outside the range reasonably open to the judge.

Brevan Howard Asset Management LLP sent confidential commercial information to 36 prospective professional investors. Reuters Limited and a financial journalist obtained information apparently derived from those documents and intended to publish it.

Brevan Howard brought proceedings in the High Court and sought an interim non-disclosure order. Mr Justice Popplewell granted the order on 23 March 2017. Reuters appealed, contending that the judge had applied an outdated public-interest test, failed to conduct a proper Article 10 proportionality assessment, and gave insufficient weight to the public interest in financial journalism. The central issue was whether publication should be restrained pending trial.

Appeal dismissed. The Court held as follows.

1. The decision whether to grant the interim injunction involved a balancing and proportionality assessment. Different judges could legitimately reach different conclusions. The appellate court could intervene only for an error of law or principle, or where the conclusion was plainly wrong and outside the range of conclusions reasonably open to the judge. That approach was consistent with Lord Browne v Associated Newspapers Ltd [2008] QB 103 and JIH v News Group Newspapers Ltd [2011] 1 WLR 1645.
2. The binding approach in Associated Newspapers Limited v HRH Prince of Wales [2006] EWCA Civ 1776 required the court to ask whether, having regard to the nature of the information and all the circumstances, it was legitimate for the owner to keep it confidential or whether the public interest required the duty of confidence to be breached. It was not enough that the information itself was a matter of public interest.
3. There was no separate requirement that publication expose iniquity, correct a false impression or reveal hypocrisy. Lion Laboratories Ltd v Evans [1985] 1 QB 526 established that significant public-interest considerations were not confined to iniquity. References to publication being vital or exceptional described the weight needed to overcome the important public interest in preserving confidence, and did not create a separate legal test.
4. The present case concerned information imparted and received in confidence, unlike the privacy cases of Campbell v MGN Ltd [2004] UKHL 22 and Couderc v France (2015) 40 BHRC. Commercial confidentiality was capable of justifying restriction even where information was true. The judge was entitled to attach substantial weight to confidentiality because candid disclosure to potential investors served the wider public interest. The comparisons with London Regional Transport v Mayor of London [2001] EWCA Civ 1491 and Northern Rock plc v The Financial Times Ltd [2007] EWHC 2677 (QB) did not require a different result.
5. The judge had considered the public interest in hedge funds, institutional investors, responsible journalism, the Editors’ Code, the cross-undertaking in damages and Reuters’ global reach. He made no material error in doing so. Once it was likely that Brevan Howard would establish at trial that publication should be restrained, the restraint was proportionate and damages were inadequate. The interim injunction was therefore properly granted.

• Court of Appeal (Civil Division): dismissed the appeal on 7 July 2017. [2017] EWCA Civ 950
• High Court of Justice, Queen’s Bench Division: Mr Justice Popplewell granted an interim non-disclosure order on 23 March 2017. No citation is stated in the judgment.