Matalia v Warwickshire County Council

A claimant may enforce the confidentiality of information where it has a substantial and legitimate interest in maintaining that confidentiality. Ownership of the information is unnecessary.

An equitable duty of confidence may arise whenever a recipient knows, or objectively ought to know, that information is confidential. The duty does not depend on the information having passed through an unbroken chain of persons subject to duties of confidence.

Information remains confidential unless it has become generally accessible. Limited or imprecise disclosure can be actionable where it creates a real risk of advantage, impairs the integrity of a testing process or otherwise causes detriment.

The Council commissioned a university to prepare 11-plus tests which it administered for grammar-school admissions. The same papers were used at sittings on different dates. After obtaining information from a candidate who had attended the first sitting, the appellant published details of several questions on a publicly accessible website before later sittings.

Newey J found that the contents were confidential, that publication was unauthorised and detrimental, and that the Council had a sufficient interest to enforce confidentiality. He granted a final injunction restraining disclosure of the tests for specified periods.

The appellant challenged the Council’s standing and contended that no duty bound him because the candidates who supplied the information had not themselves been placed under an express duty of confidence. He also argued that the disclosed information was too limited to possess the necessary quality of confidence or cause detriment.

1. Appeal dismissed. The Council had standing to protect the confidentiality of the tests. Confidential information is not property, and there was no principled basis for making enforcement depend upon ownership or an analogous proprietary interest. The Council had commissioned, provided and administered the tests. It therefore had a substantial and legitimate interest in preserving their confidentiality and was the obvious person to enforce it.

2. The absence of an unbroken chain of duties of confidence did not prevent liability. The essential consideration was whether the appellant possessed information which he knew, or objectively ought to have known, was confidential. An equitable obligation can arise even where information was acquired without being disclosed in breach of another person’s duty. The tests’ confidential character, the Council’s interest in preventing disclosure and the absence of authority to publish were obvious.

3. It was unnecessary to decide the precise duties owed by children who had taken the test. A child’s possible freedom to discuss questions with a parent did not make the parent free to publish them while other candidates were yet to sit the test. The particular circumstances of a communication within the parent-child relationship could support imposing a duty upon the parent.

4. The information published was not trivial. Evidence showed that at least one question had been compromised and that information about several mathematics questions might advantage later candidates. A single raw mark could materially affect a candidate’s standardised score and ranking. The conclusion that the testing process as a whole had not been compromised did not preclude a finding that the disclosures possessed the necessary quality of confidence or caused detriment.

5. The information had not become so generally accessible that it ceased to be confidential. The judge had adequately considered evidence of disclosures by candidates, parents, tutors and other websites. There was no basis for interfering with his findings or with the final injunction.

Lady Justice Black and Lord Justice Lindblom agreed with the judgment of Lord Justice David Richards.

• Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the final injunction and the findings that the Council had standing and that the appellant had breached confidence. [2017] EWCA Civ 991

• High Court of Justice, Birmingham District Registry: Newey J granted a final injunction restraining publication or disclosure of the contents of the relevant 11-plus tests for specified periods. No neutral citation is stated in the judgment.