Advertising Standards Authority Ltd v Mitchell

On an interim application to restrain threatened disclosure of confidential information, the claimant must show a likely prospect of establishing at trial that the information is confidential, was received in circumstances importing an obligation of confidence, and is threatened with misuse. The court must consider possible defences or justifications, including prior publication and public interest, and retains a discretion whether to grant relief.

Where freedom of expression is engaged, Human Rights Act 1998, section 12 imposes additional safeguards. An obvious mistaken disclosure of legally privileged material ordinarily requires intervention.

The Advertising Standards Authority sought interim injunctions against Robert Mitchell after an investigating officer mistakenly emailed him confidential complaint material, draft recommendations and legally privileged legal advice intended for the ASA’s solicitor. The application sought to restrain use, publication, communication or disclosure and to require disclosure of what had been done with the material.

The application was heard without Mr Mitchell’s attendance, although he had received notice and responded. The issues included jurisdiction, notice, the risk of misuse, the likely merits of the breach of confidence claim, public interest and freedom of expression.

1. Relief granted. The court granted an appropriately worded injunction until the return date of 14 June 2019.
2. The court was likely to have jurisdiction because the evidence indicated that Mr Mitchell was domiciled or at least present in the jurisdiction, had received the material there and could properly be served there. Notice was sufficient in the circumstances, including under Human Rights Act 1998, section 12(2), and the Civil Procedure Rules.
3. For interim restraint, the claimant had to show that it was likely to establish at trial that publication should not be allowed. “Likely” ordinarily meant more likely than not, subject to limited exceptions where there was little time for consideration or publication would have extremely serious consequences: Linklaters LLP v Mellish [2019] EWHC 177 (QB) and Cream Holdings Ltd v Banerjee [2005] 1 AC 253.
4. The likely elements of breach of confidence were confidential information, circumstances importing an obligation of confidence, and a threat or intention to misuse. Possible defences included prior public disclosure and compelling public interest. The court had to assess the evidence available at the interim stage and retained a discretion whether to grant relief.
5. The public-interest inquiry required proportionality, including likely damage and the rights and interests of third parties: HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57. The ASA was likely to establish that complainant anonymity, confidential regulatory processes and privileged legal advice justified restraint.
6. Where privileged documents were disclosed by obvious mistake, the court should ordinarily intervene: Lord Ashburton v Pape [1913] 2 Ch 469, Al Fayed v Commissioner of Police for the Metropolis [2002] EWCA Civ 780, ISTIL Group v Zahoor [2003] EWHC 165 and Lachaux v Independent Print Ltd [2017] EWCA Civ 1327.
7. The order did not prevent criticism of RBS or use of specified material for the ASA complaint or related litigation. It was not a “super injunction”, which properly refers to the rare category of order prohibiting identification of the injunction or the applicant’s interest in it.