ABC & Ors v Telegraph Media Group Ltd

An interim injunction restraining publication which engages freedom of expression will normally require the applicant to show probable success at trial. The threshold under section 12(3) of the Human Rights Act 1998 is nevertheless flexible. A lesser likelihood may suffice where premature disclosure risks grave and irreversible harm.

Where information was received in confidence, the court asks whether, in all the circumstances, the public interest requires breach of that confidence. This is a proportionality assessment. A freely negotiated confidentiality obligation forming part of a legally advised settlement attracts particular weight, especially where it preserves legitimate reporting to police, regulators or statutory bodies. The media’s public-interest role remains important but does not automatically override the public interest in enforcing such settlements.

The claimants were two group companies and a senior executive. Five employees had made allegations against the executive. Their complaints or employment proceedings were resolved through settlement agreements containing mutual confidentiality provisions. Each employee received independent legal advice, and the agreements preserved legitimate disclosures to police, regulators and statutory bodies.

After the respondent newspaper obtained information about the allegations and settlements, the claimants sought an interim injunction for breach of confidence and inducement of breach of contract. Haddon-Cave J refused relief in [2018] EWHC 2177 (QB), holding that the public interest in publication outweighed the asserted confidentiality.

The appeal concerned whether the claimants had sufficiently favourable prospects of defeating a public-interest defence at trial to justify prior restraint under section 12(3) of the Human Rights Act 1998.

1. Appeal allowed. The court granted an interim injunction, limited to the particularised allegations of individual misconduct and the negotiation and terms of the settlement agreements. It also ordered a speedy trial. The judge’s discretion had been undermined by material omissions, so the Court of Appeal exercised the discretion afresh.

2. Section 12(3) of the Human Rights Act 1998 ordinarily requires an applicant seeking interim prior restraint to show that success at trial is more likely than not. Cream Holdings Ltd v Banerjee [2004] UKHL 44 establishes a flexible standard, however. The required likelihood depends upon the circumstances. A lesser degree may suffice where disclosure threatens particularly grave or irreversible consequences. The risk of immediate, substantial and possibly irreversible harm brought the case within that qualification.

3. The judge had been entitled to begin with the source of the information. The appellate court was equally able to determine whether the evidence supported an inference that it had been disclosed in breach of confidence. The court concluded that the claimants were likely to establish that substantial and important information had been imparted in breach of confidentiality and acquired with awareness of the breach or its likelihood. The most serious allegations had not entered the public domain.

4. The governing public-interest test was whether, in all the circumstances, it was in the public interest that the duty of confidence should be breached. The assessment was one of proportionality. It required consideration of the nature and credibility of the information, freedom of expression, the press’s watchdog role, the consequences of disclosure and the public interest in maintaining duties of confidence.

5. The public interest in reporting workplace misconduct and debating standards expected of powerful people was substantial. The judge had nevertheless omitted the legitimate role of non-disclosure agreements in consensual settlements. These agreements had been freely entered into with independent legal advice, contained legitimate disclosure exceptions and showed none of the alleged vices of bullying, improper pressure or suppression of reports to public authorities. Confidentiality could also protect employees.

6. There was a sufficient likelihood that the claimants would defeat the newspaper’s public-interest defence at trial. The unresolved factual and policy issues were best determined on evidence at an expedited trial. Delay to publication was undesirable, but a speedy trial reduced that concern.

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 2329, allowed the appeal, granted a more narrowly framed interim injunction and ordered a speedy trial.
2. High Court, Queen’s Bench Division: Haddon-Cave J refused the claimants’ application for an interim injunction in [2018] EWHC 2177 (QB).