Advertising Standards Authority Ltd v Mitchell

An interim confidentiality injunction may be continued where the claimant shows a sufficient risk of wrongful use or disclosure and is likely to establish at trial that publication should be restrained. The court may consider subsequent conduct, non-compliance with disclosure orders and evidence bearing on the recipient’s duty of confidence when assessing that risk. A person’s residence for jurisdictional purposes is a specific statutory concept and may exist in more than one place at the same time. Allegations that the claimant misled the court must be supported by sufficiently detailed evidence.

The Advertising Standards Authority Limited sought continuation of injunctions restraining Robert Mitchell from using, disclosing or communicating an email and attachments mistakenly sent to him during an investigation into a complaint about an advertisement. An interim order had been made at an earlier hearing, with disclosure obligations requiring Mr Mitchell to identify third-party recipients and provide verified information.

At the continuation hearing, Mr Mitchell was absent but supplied written representations and a late witness statement. The issues included whether there remained a sufficient risk of wrongful disclosure, whether Mr Mitchell was resident in England and Wales for jurisdictional purposes, and whether his alleged non-compliance and criticisms of the ASA affected the relief.

1. The injunction was continued. The court accepted that there was sufficient evidence of a risk or threat of wrongful use or disclosure. Applying the principles set out in the earlier judgment, the ASA was likely to succeed at trial in establishing that publication of the information should not be allowed.
2. The standard confidentiality footer on the email, identifying the material as intended for the addressee and potentially confidential or privileged, strengthened the case that Mr Mitchell owed a duty of confidence. His prior notice of the ASA’s complaint-handling procedures provided limited additional support.
3. Mr Mitchell’s conduct after the interim order, including social-media activity and non-compliance with disclosure and verification requirements, strengthened the case for restraint. Assisting another person to breach an injunction would constitute contempt of court.
4. For jurisdictional purposes, residence under the Civil Jurisdiction and Judgments Act 1982 is a specific test. A person may be resident in more than one place at the same time. The evidence continued to support the conclusion that Mr Mitchell was likely to be resident in England and Wales.
5. General allegations that the ASA had misrepresented Mr Mitchell’s position or misled the court were unsupported by explanatory detail. The court found no reason to doubt that the ASA had complied with its duty of full and frank disclosure.
6. Mr Mitchell was ordered forthwith to remedy the deficiencies in his purported compliance with the earlier disclosure order.

The judgment records an earlier interim application in the same proceedings. An injunction was granted for seven days at the hearing on 7 June 2019, with reasons later handed down in [2019] EWHC 1469 (QB). The present hearing continued the injunction until trial or further order.