Brevan Howard Asset Management LLP & Ors v Reuters Ltd & Ors

On an application for an interim non-disclosure order affecting freedom of expression, the applicant must show that it is more likely than not to obtain a permanent injunction at trial. The threshold is flexible but enhanced because prior restraint of publication engages the importance of a free press. In a breach of confidence claim, the court must balance the claimant’s interest in confidentiality against the defendant’s Article 10 rights. The relevant question is whether there is a public interest in breaching the confidence, not merely whether the information is of public interest. Confidential commercial information supplied to potential investors may warrant restraint where publication would be damaging and the public interest in disclosure is comparatively weak. The court granted the interim order.

Brevan Howard Asset Management LLP sought an interim non-disclosure order against Reuters Ltd, a Reuters journalist and persons unknown. Reuters proposed publishing information probably derived from confidential investment documents supplied electronically to potential professional investors.

The application concerned breach of confidence and engaged Article 10 of the European Convention on Human Rights and section 12 of the Human Rights Act 1998. The central issues were whether the information was confidential, whether Reuters was subject to a duty of confidence, whether publication would constitute an actionable breach, whether the public interest justified publication, and whether damages would be an adequate remedy.

1. Application granted. The claimant was more likely than not to establish at trial that publication should be restrained. That was the appropriate approach under s.12(3) of the Human Rights Act 1998, as explained in Cream Holdings v Bannerjee [2005] 1 AC 253.
2. The information probably had the necessary quality of confidence. It was sensitive commercial information, supplied to a limited class of potential investors under password protection and express confidentiality restrictions. The information was probably derived from those documents.
3. Reuters and the journalist were probably subject to a duty of confidence. The circumstances of receipt indicated confidentiality, and, in any event, correspondence had put them on notice of the confidential character of the information. The approach in Vestergaard Frandsen A/S v Bestnet Europe Ltd [2013] 1 WLR 1556 was applied.
4. Publication of information derived from confidential documents could be restrained even though Reuters did not possess the original documents. Detriment was not a necessary ingredient of the cause of action, although likely commercial damage supported the application. The ingredients of breach of confidence summarised in Terry v Persons Unknown [2010] EMLR 16 were applied.
5. The public interest defence required a fact-sensitive proportionality assessment. The question was whether the public interest justified breaching the duty of confidence. The court applied the approach in Attorney-General v Observer Ltd [1990] 1 AC 109 and Associated Newspapers Limited v HRH Prince of Wales [2002] Ch. 57. The importance of preserving confidentiality in candid disclosures to potential investors outweighed the comparatively weak public interest in publication.
6. The Article 10 principles concerning the importance of press freedom, narrow interpretation of restrictions and the dangers of prior restraint were relevant to the assessment. They were drawn from Sunday Times v United Kingdom (No 2) (1992) 14 EHRR 229 and The Observer and the Guardian v United Kingdom (1992) 14 EHRR 153.
7. Lion Laboratories Ltd v Evans [1985] 1 QB 526 established that there was no bright-line iniquity rule. A public-interest defence could succeed without iniquity, but publication in the present circumstances was not justified.
8. Damages were probably inadequate because the loss caused by publication would be difficult to quantify. An interim restraint was therefore appropriate.