Fortescue Metals Group Ltd & Anor v Argus Media Limited & Anor

An interim restraint application under section 12 of the Human Rights Act 1998 is a discrete exercise requiring a provisional assessment of the likely outcome at trial on the evidence then available. It does not determine, or rehearse, the final issues. The applicant bears a general burden of persuasion, but the burden on a public interest defence remains at trial with the defendant. The court must conduct an evaluative, multi-factorial balancing exercise, including the public interest in maintaining confidences and the particular consequences of disclosure. An appellate court is unlikely to interfere absent an error of law.

The claimants sought an interim injunction restraining the defendants in a dispute concerning confidential information. The application engaged section 12 of the Human Rights Act 1998 and involved the interaction between breach of confidence and Article 10 of the ECHR. Mr Justice Miles dismissed the injunction application in his main judgment. The present judgment addressed the consequential costs order and the claimants’ application for permission to appeal, based on alleged errors concerning the burden of proof, competition and pricing information, and the applicable Article 10 principles.

1. Costs. The interim application was a discrete proceeding. Under section 12 of the Human Rights Act 1998, the court had to reach a provisional view of what would happen at trial on the materials then available. It was not a dress rehearsal for the trial and did not make final or binding determinations. The defendants were therefore entitled to all their costs, including costs reserved from earlier hearings and the disclosure application.
2. The court ordered interim payments on account of costs under the Civil Procedure Rules 1998, taking a broad-brush view of reasonableness, proportionality, the evidence, the length of the hearing, the importance of the issues and the limited information available before detailed assessment. The sums ordered were £80,000 for the first defendant and £140,000 for the second defendant, payable within 14 days.
3. Permission to appeal. There was no realistic prospect of success. The judge had expressly recognised that, at trial, the defendants bore the burden on the public interest defence. The general burden of persuasion resting on an applicant under section 12 did not impose an additional or undue burden on the claimants.
4. The assessment of competition and pricing information formed part of an overall evaluative and multi-factorial balancing exercise. The judge had considered the competition argument and given it appropriate weight. Absent an error of law, an appellate court was unlikely to interfere with that evaluation.
5. The principles concerning breach of confidence and Article 10 had recently been authoritatively set out in Prince of Wales and Brevan Howard. No clarification or reconsideration by the Court of Appeal was required. Permission to appeal and a stay were refused.

The judgment itself was a first-instance decision on costs and permission to appeal following dismissal of the claimants’ interim injunction application. Permission to appeal was refused.