Warwickshire County Council v Matalia

A licensee with an enforceable right to protect confidential information may seek an injunction independently of any co-licensee. Breach of confidence is not limited to publication. Unauthorised collection or collation of confidential information may itself constitute misuse, and indirect collection through persons who possess the information may be actionable. It is also unlawful to encourage third parties to breach a duty of confidence where the encouragement procures the unlawful act. The confidentiality of examination content is not lost merely because candidates may discuss it or because related material appears on websites. Where threatened misuse or encouragement would compromise the integrity of current or future examinations, injunctive relief may be granted.

Warwickshire County Council, a licensee responsible for administering Warwickshire grammar-school 11+ examinations, sought an injunction against Amit Matalia. The examinations were devised and owned by the University of Durham Centre for Evaluation and Monitoring and licensed jointly to the claimant and another education body.

The defendant operated websites which encouraged parents to obtain and submit recollections of examination content. The issues were whether the claimant had standing, whether the defendant threatened to breach confidence, whether encouragement of a breach was unlawful, whether such conduct had occurred, and whether an injunction should be granted.

1. Standing. The claimant had standing to protect the confidentiality of the examinations. The existence of a co-licensee which did not itself intend to sue did not require both licensees to act jointly and made no material difference to the claimant’s enforceable rights.

2. Breach of confidence. Applying the criteria in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, the examination content had the necessary quality of confidence, it was held in circumstances importing an obligation of confidence, and unauthorised use would cause or threaten detriment by undermining examination integrity. The fact that candidates might tell their parents what they remembered did not destroy confidentiality.

3. Unauthorised obtaining, collecting or collating of confidential information may constitute breach even without publication. The principle in Imerman v Tchenguiz and others [2010] EWCA Civ 908 supported restraining unauthorised steps to obtain, copy, communicate or use confidential information. The defendant’s exhortations to parents to debrief children therefore amounted to a threatened breach.

4. The public-domain exception did not assist the defendant. The relevant question was whether the information was so generally accessible that, in all the circumstances, it could no longer be regarded as confidential. Discussion or speculation on a moderated website did not establish that the organised collection of recollections was in the public domain.

5. It was unlawful to encourage a breach of confidence. The court applied the procurement principle recognised in CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] 1 AC 1013. The defendant’s website postings contained unequivocal encouragement to parents to breach duties of confidence enforceable by the claimant.

6. The claimant was entitled in principle to an injunction restraining threatened breaches concerning current examinations, extending in principle to future examinations. The precise form of the injunction was to be settled after the parties had considered the judgment.