Pharmagona Ltd v Taheri & Anor

Where an interim injunction may restrict freedom of expression, Human Rights Act 1998 section 12(3) requires the applicant to show a likelihood of establishing at trial that publication should be restrained. The ordinary American Cyanamid approach is insufficient in such a case, subject to the flexible application recognised in Cream Holdings Ltd v Banerjee. A proprietary interest in confidential information does not by itself justify restraint. The court must assess the evidence of likely disclosure, proportionality, delay and the public interest. Disclosure to investigating public authorities may require an express exception, even where publication to the world at large is restrainable.

The claimant pharmaceutical company sought an interim injunction restraining two former employees from using or disclosing alleged confidential information, together with delivery up or destruction of copies. The defendants alleged that the claimant had engaged in unlawful conduct and said that they had disclosed or might disclose information to public authorities in the public interest.

The application followed related proceedings in which the defendants had been subject to disclosure orders and judgment had subsequently been entered against them. The central issues were whether the application engaged section 12 of the Human Rights Act 1998, whether the claimant had shown a sufficient risk of disclosure and likely success at trial, how any public interest defence affected the relief, and whether delivery up or destruction should be ordered.

1. Applicable test. The application was treated as one for an interim injunction. Although the ordinary approach is under American Cyanamid Co v Ethicon Ltd. (No1), the application engaged Article 10 because the relief could affect freedom of expression. Section 12(3) of the Human Rights Act 1998 therefore required the claimant to show that it was likely to establish at trial that publication should not be allowed. Following Cream Holdings Ltd v Banerjee, that ordinarily meant more likely than not, but the court retained flexibility where urgency or an inadequate opportunity to consider competing arguments required it.
2. Article 10 and proportionality. A restriction must be lawful, pursue a legitimate aim and be necessary in a democratic society. Protection of confidential information is a legitimate aim, but the claimant still had to establish proportionality. The heightened caution applicable to prior restraints supported the application of section 12(3).
3. Risk of disclosure. The evidence, including the first defendant’s apparent refusal to give an undertaking and his position that he should remain free to use the material, established a real risk that both defendants would use the confidential information. The delay and the absence of recent proved disclosures made the issue difficult, but did not defeat the application.
4. Public interest. The defendants had not shown a public interest defence permitting publication to the world at large. However, the public interest in assisting investigations was sufficient to require a proviso allowing disclosure of information or documents requested by the Civil Aviation Authority or another public authority. The defence had to be related to particular disclosures and have focus and utility.
5. Orders. An injunction restraining use of the claimant’s confidential information was granted, subject to the public-authority proviso. Orders for delivery up or destruction were refused. The parties were invited to agree the precise terms, failing which written submissions were to be made.