Bains & Ors v Moore & Ors

An interim order requiring delivery up and deletion of confidential material is a mandatory injunction where it substantially grants final relief. The court must therefore apply the heightened test of a high degree of assurance that the claimant will establish the relevant right at trial, while also considering the risk of injustice and freedom of expression.

A claimant seeking relief for breach of confidence or misuse of private information will ordinarily need to show that the relevant duty was owed to that claimant. A novel claim to protect information belonging to third parties should be properly pleaded and ordinarily should not be resolved on an interlocutory application. Relief should be confined to material sufficiently connected with the claimant’s own arguable rights.

The claim concerned alleged infiltration of an anti-asbestos campaign network, acquisition of confidential and private information, and onward disclosure by the defendants. The claimants sought extensive interim delivery up, deletion and preservation orders before serving Particulars of Claim. They also sought permission to add further claimants and release from an undertaking so that documents could be shown to proposed claimants.

The principal issue was whether the court should grant the wide delivery-up order sought, including material relating to third parties, and whether the proposed additional claimant had shown a sufficient basis for joinder.

1. The application for delivery up succeeded only to the limited extent already offered by the second and third defendants. The wider draft order was refused. The court treated the proposed relief as a mandatory interim injunction because it substantially reproduced final relief, including permanent deletion. The applicable test was a high degree of assurance that the claimants would establish their right at trial; the result would have been the same under the test in Cream Holdings v Bannerjee [2005] 1 AC 253 or the principles in Zockoll Group Ltd v Mercury Communications Ltd [1998] FSR 354.
2. The court had to give particular regard to freedom of expression under section 12 of the Human Rights Act 1998 and Article 10 of the Convention. The order could not properly extend beyond information in respect of which the claimants had an arguable personal or confidential entitlement.
3. Having regard to Fraser v Evans [1969] 1 QB 349, the judge was far from satisfied that the claimants were likely to succeed in respect of information which was not subject to a duty of confidentiality owed specifically to one of them. The proposed order was insufficiently confined and included material relating to third parties. The information already disclosed was sufficient to enable Particulars of Claim to be drafted.
4. The court declined to resolve the proposed extension of the law on title to sue in interlocutory proceedings. Any such development required properly pleaded Particulars of Claim and might more appropriately be determined at trial. The warnings in Caterpillar Logistics Services (UK) Ltd v Huesca de Crean [2012] EWCA Civ 156 supported early and precise pleading.
5. The claimants were released from their undertaking to the limited extent necessary to show disclosed documents to the proposed additional claimants. Permission was granted to join Mr Furuya, because his evidence made it more than speculative that he could formulate a claim with a sufficient prospect of success. The applications concerning Mr Paek and Mr Flanagan were adjourned.