Matalia v Warwickshire County Council

The appellant published on a public website material said to reflect the contents of 11-plus tests administered by the respondent local authority on multiple dates in September 2013. The Council (which had commissioned and licensed the test papers from the University) obtained interim and then final injunctions restraining publication of the materials and disclosure of the test contents for specified periods. The appellant appealed on multiple grounds, but permission was limited to (i) whether the Council had standing to enforce confidentiality given the University’s retained copyright and (ii) whether the three Coco limbs of breach of confidence were satisfied where the appellant’s sources were pupils who had not been told the test was confidential.

The Court of Appeal (Richards LJ giving the approved judgment; Lindblom LJ and Black LJ concurring) dismissed the appeal, holding that the Council had standing to enforce confidentiality in the circumstances and that the judge was entitled to find that the information had the necessary quality of confidence, was received or acquired in circumstances importing an obligation of confidence, and was disclosed without authorisation to the detriment of the Council’s legitimate interests in administering the tests.

1. Disposition: The appeal is dismissed and the judge’s grant of final injunctive relief restraining publication or disclosure of the specified test contents was upheld (see paras 1–3, 13–19, 58).
2. Standing/party entitled to enforce confidence: A claimant need not be the creator or copyright owner of information to have standing to enforce confidentiality. Where a public body commissions and is the intended user/administrator of examination papers, it has a substantial and legitimate interest in preserving their confidentiality and is the obvious party to enforce that confidence against unauthorised disclosure (paras 20–33). Douglas v Hello! Ltd was recognised as an exceptional decision turned on its facts and does not establish a rule that only the copyright owner may enforce confidentiality (paras 24–31).
3. Law of confidence — scope and principle: The equitable duty of confidence extends to cases where a defendant comes into possession of confidential material without the claimant’s consent; the key is whether the recipient knows or ought to know the information is confidential (paras 41–47). Authorities such as Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109, Imerman v Tchenguiz [2010] EWCA Civ 908 and related authorities were applied and followed to this effect (paras 42–46).
4. Application of Coco test: The three Coco elements (quality of confidence; circumstances importing obligation; unauthorised use to detriment) were considered and found satisfied. The judge’s factual findings — that the material published was confidential, that publication was unauthorised and that publication risked detriment to the integrity and administration of the tests — were open to him on the evidence and not amenable to appellate interference (paras 35–57).
5. Confidentiality does not automatically cease after partial disclosure: The court confirmed that partial disclosures by some candidates do not necessarily render information generally accessible; confidentiality subsists until the material becomes generally known (paras 16, 35, 57).
6. Remedies: An injunction is an appropriate remedy where the defendant persisted in publication, refused undertakings, and appeared able and willing to reveal more material (paras 9, 12, 18, 58). The court did not need to decide an alternative statutory basis under Section 222 of the Local Government Act 1972 (para 19).

• Court of Appeal (Civil Division): Appeal heard 18 January 2017; judgment approved and delivered 13 July 2017; appeal dismissed (Richards LJ; Lindblom LJ; Black LJ).
• High Court (Birmingham District Registry, Newey J): First instance: trial judge granted final injunction restraining publication of test contents; decision appealed to the Court of Appeal (reference at head: 3BM30478).