Clearcourse Partnership Acquireco Limited & Ors v Manoj Jethwa

For an interim non-disclosure order engaging section 12(3) of the Human Rights Act 1998, the claimant must show that success at trial is more likely than not. A duty of confidence may arise where a person overhears a private discussion through a wall, even without actively eavesdropping, if the circumstances make its confidential nature apparent. Oral confidential information may be identified by subject-matter where its precise wording cannot be recalled, but an injunction must define the restrained information with certainty. Misuse of private information requires a reasonable expectation of privacy followed by a balance between privacy and competing rights. Personal data copied and retained without consent or another lawful basis may establish a data protection claim. The injunction was therefore continued, but confined to defined commercial and negotiating topics.

The claimants sought continuation of an interim non-disclosure order granted without notice after the defendant allegedly threatened to disclose private conversations overheard during business acquisition negotiations. The proceedings concerned breach of confidence, misuse of private information and alleged breaches of the GDPR and UK GDPR in relation to a CCTV screenshot of two claimants.

The defendant denied making a disclosure threat, disputed the confidentiality and privacy of the conversations, and argued that the screenshot involved no unlawful processing. The central issues were whether the claimants satisfied the enhanced interim test, whether the information was confidential and private, whether the screenshot involved unlawful processing, and how precisely any injunction should be framed.

1. Interim threshold. Section 12(3) of the Human Rights Act 1998 applied. The claimants had to show that they were more likely than not to succeed at trial: Cream Holdings v Banerjee [2005] 1 AC 252 at [22]. They satisfied that threshold in relation to each cause of action.
2. Breach of confidence. A reasonable person in the defendant’s position would understand that a conversation behind closed doors between parties on opposite sides of commercial negotiations was private and confidential. A duty of confidence can arise where private information is overheard through a wall, even if the recipient made no specific effort to eavesdrop. The four pleaded subject areas had the necessary quality of confidence, and a threat of disclosure was established on the interim evidence.
3. Identification of information. A claimant need not identify a particular document where the information was communicated orally and cannot now be recalled precisely: Imerman v Tchenguiz [2010] EWCA Civ 908 at [78]. The subject-matter may suffice, but the injunction must still identify the protected information clearly.
4. Misuse of private information. The conversations behind closed doors gave rise to a reasonable expectation of privacy. Applying the two-stage approach summarised in ZXC v Bloomberg LP [2022] UKSC 5; [2022] 2 W.L.R. 424 at [45]-[62], and the circumstances identified in Murray v Express Newspapers Plc [2008] EWCA Civ 446; [2009] Ch. 481 at [36], disclosure would make no contribution to a debate of general interest. The defendant’s freedom of expression rights were limited. The observation in LJY v Persons Unknown [2017] EWHC 3230 at [29] concerning blackmail and free speech was consistent with that conclusion.
5. Data protection. The screenshot contained personal data. The defendant had copied and retained it without consent or another applicable legitimate interest. The general CCTV warning did not establish consent to the distinct copying and storage of the claimants’ images.
6. Relief. The injunction was continued until trial or further order. The broad reference to private conversations was too vague and potentially overbroad. The order was modified to cover the four identified areas and expressly included the matters described as Items A and B, with a carve-out permitting use relevant to the defendant’s legal claims.