Barclay & Anor v Barclay & Ors

On an urgent application to restrict publication of confidential information, the court should apply the approach applicable to an interim injunction. Under section 12(3) of the Human Rights Act 1998, the central question is whether the claim would be likely to succeed at trial, while short-term relief may be granted where there is a sufficient prospect of success to justify it. Confidentiality may subsist in information known to more than one person, and disclosure in a public hearing does not necessarily destroy confidentiality. Any order should be limited to the period needed for fuller evidence and argument.

The claimants relied on a skeleton argument containing redacted material concerning commercially sensitive discussions and contemporaneous messages. The defendants applied, on short notice, for continuation of orders withholding the material from the public and restricting its reporting. The court considered whether the information was confidential, whether the defendants had rights or obligations of confidence in it, and whether any confidentiality had been lost because the information appeared on transcripts of a public hearing.

The application was treated as analogous in substance to an urgent interim injunction application. The central issue was whether temporary reporting restrictions were justified pending fuller consideration.

1. Application granted in limited form. The court continued a reporting restriction over the more limited redacted passages, but limited the order in time so that the defendants could support their application with evidence and the claimants could respond.
2. The appropriate approach was to apply section 12(3) of the Human Rights Act 1998, as interpreted in Cream Holdings v Banerjee [2005] 1 AC 253 and ASG v GSA [2009] EWCA Civ 1579. The court asked whether the claim would be likely to succeed at trial, while recognising that interim relief could be granted where there was a sufficient prospect of success to justify short-term protection.
3. There was a strong case that the information was confidential. Its commercial nature and the description of it as highly confidential and valuable supported that conclusion.
4. It was not established that the claimants had the only rights in the information. Confidential information may be subject to shared rights and obligations. The defendants’ case that at least some of them owed or enjoyed obligations of confidence was not shown to be unsustainable or unlikely to succeed on fuller examination.
5. Disclosure of information in a public-hearing transcript does not necessarily mean that the information is known to the world or that confidentiality has been lost. The court declined to determine that issue finally on the limited material available.
6. The order therefore operated as short-term protection pending a fuller review of the evidence and arguments.