THE CHIEF CONSTABLE OF KENT POLICE & Anor v DARYLL STURGESS TAYLOR

Information is confidential where its nature makes confidentiality obvious, even if the circumstances of its imparting add little. In an appropriate case, unauthorised retention of copies is itself a breach of confidence. The claimant need not prove actual use or a threat of use where the information is highly sensitive and its continued possession creates a real risk of disclosure.

The equitable jurisdiction to protect confidential information includes power to order disclosure concerning the handling and storage of the information, and, in suitable circumstances, independent permanent deletion. Such relief must be proportionate to privacy interests and may include safeguards limiting the independent expert’s role.

The claimants brought a Part 8 claim in confidence against the defendant. The defendant had been given access, through a secure file-sharing platform, to videos concerning a vulnerable minor in unrelated proceedings. He downloaded some of the material, acknowledged that access constituted a serious privacy violation, but refused to delete the copies or provide information about his dealings with them.

The claimants sought prohibitory and mandatory injunctive relief, including disclosure of the locations and uses of the material and independent permanent deletion. The central issues were whether the elements of breach of confidence were established despite the accidental disclosure, and whether the court had power to grant the additional equitable relief sought.

1. Claim established. The videos contained highly sensitive personal information concerning a minor and were obviously confidential. The three elements identified in Coco v AN Clark (Engineers) Ltd [1968] FSR 415 were satisfied, with the modern law applied flexibly in light of Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 and Imerman v Tchenguiz [2010] EWCA Civ 908; [2011] Fam 116.
2. Where information is obviously confidential, the circumstances in which it was imparted need not independently establish the obligation of confidence. The sensitive information concerning the minor attracted a high level of confidentiality and privacy protection, having regard to Article 8 rights.
3. Unauthorised retention of copies may constitute a breach of confidence without proof of actual use or a threat to use. A refusal, without proper justification, to delete or deliver up sensitive confidential information is sufficient to justify prohibitory relief.
4. Both the owner of the videos and their custodian and sender had standing to seek injunctive relief.
5. The equitable jurisdiction to protect confidentiality included power to order disclosure about downloading, copying, storage and disclosure of the material. The court also had jurisdiction to order independent permanent deletion where the defendant’s refusal to cooperate, technical sophistication and the sensitivity of the information made that relief necessary.
6. The deletion order was modified to protect the defendant’s privacy. The independent expert’s task was confined to deleting or verifying deletion of the videos, with an undertaking not to disclose other material or damage the devices. The claimants were ordered to pay the costs of the deletion exercise, while the defendant was ordered to pay the assessed costs of the claim.