Matalia v Warwickshire County Council

This is an appeal against a final injunction restraining Amit Matalia, the appellant, from publishing or disclosing the contents of 11-plus tests used by the respondent Council and taken by candidates in the years 2013 to 2015. The injunction applies, in the case of each test, for three years from September in the year in which the test was sat. The legal basis for the injunction is the restraint of breach of confidence.

In 2013, as in other years, there was more than one dateon which candidates could sit the test administered by the Council. The dates were 7, 14 and 17 September, and the numbers of candidates sitting the test on those dates were 1,671, 267 and 67 respectively. The judge found that Mr Matalia obtained details of some questions in the 2013 tests from hisnephew and perhaps other candidates, who had sat the tests on the first date. Mr Matalia published those details on a publicly-accessible website before the second date. The judge found that information about the contents of the tests was clearly confidential and that it would have been obvious to Mr Matalia, and to any other reasonable person, that the Council did not want information about the contents of the test to be made public.

Any reasonable person knows that unauthorised disclosure of the contents of an examination or test yet to be taken, in a way that may come to the attention of candidates, risks undermining the purpose and integrity of the examination or test, and that such information is therefore confidential. An injunction to restrain such disclosure is not therefore on the face of it surprising.

Mr Matalia applied for permission to appeal on a wide variety of grounds. He was granted permission to appeal on limited grounds. Lewison LJ granted permission on a ground that wrapped up a number of points, principally that the information had not been imparted to him in confidence and that the information published was in fact insufficient to compromise the tests. Following an oral hearing, Patten LJ gave permission to appeal on a further ground, that no duty of confidence was owed to the Council which therefore did not have standing to bring the claim.

There are six grammar schools in Warwickshire which award places on the basis of the candidates’ performance in 11-plus tests. The Council administers the tests for the schools and, in the relevant years, commissioned the Centre for Evaluation and Monitoring at Durham University (the University) to provide the test papers. It is common ground that the University retained copyright in the papers and licensed their use by the Council. The test for each year comprised two papers, each containing between 100 and 125 questions. The time allowed for each paper was 45 to 60 minutes. No past or present papers are ever made publicly available.

The judge heard evidence of the reasons for the test being taken on more than one day, and it is not necessary to repeat that evidence for the purpose of this appeal. The same test is used for each sitting to ensure consistent testing against the same standard, and to avoid the additional time and cost of commissioning separate tests for each occasion. There was no evidence that candidates were told not to disclose the contents of the tests.

On 9 September 2013, the Council was told that information about the content of the test sat for the first time on 7 September 2013had been posted on a website, of which Mr Matalia was the registered owner. The relevant page, headed “Warwickshire 11+ Review 7^th September, 2013 also (14^th and 17^th September 2013)”, provided information, much of it of a general nature, about the test but with an express disclaimer of accuracy and a statement that it should be used “as a guide only”. The full text was set out by Newey J and it included:

“A. Comprehension regarding Lemurs in Madagascar. Around 2 pages of text and perhaps 20 questions. Easy enough to finish.

…

A.

Longer maths. 4 long questions with subsections (perhaps 15 minutes).

i)

A question relating to luggage dimensions and time differences: London and Hong Kong.

ii)

Cinema tickets, time calculations and prices.

iii)

Prices of items in a sale, including original prices. E.g price was £4.85 after a 75% discount. What was the original price?

iv)

Swimming suggestions – swimming lengths in a certain time. Required conversions and ratio/proportion knowledge.

Some questions were difficult and many may not complete the questions.

B.

Synonyms (words included thrifty, frugal, insolent). Enough time to complete the questions.”

The relevant test included a comprehension question on a passage concerning lemurs in Madagascar with a total of 23 questions. The “Matching Words” section required candidates to give “thrifty” as a synonym for “frugal”. The judge found that the section on the website headed “Longer maths” also “contained truth”. He referred to an email dated 10 September 2013 in which the University told the Council that there were “4 maths Qs (6 marks) where day 2 candidates may be at an advantage – although the exact Qs are not revealed”.

In the afternoon of 9 September 2013, the Council emailed Mr Matalia, telling him that, if he did not remove all details of the test, it would apply for an injunction against him. In his reply, Mr Matalia refused to remove the details. On 11 September 2013, the Council applied, without notice to Mr Matalia, for an interim injunction requiring him to remove the details, which was granted by HH Judge Barker QC. Personal service could not be effected until 13 September 2013, by which time Mr Matalia had removed the details from his website. Mr Matalia said that he did so before he knew of the injunction but the judge thought that unlikely.

The interim injunction was continued by HH Judge Cooke at a hearing on 7 October 2013, before which Mr Matalia made a witness statement in which he gave an explanation as to how he had come to know of the information he published. He stated that he happened to be at one of the schools at which the test was taken on 7 September 2013, because his younger son was due to start there the following week, and he overheard comments from children who had just taken the test, as well as later receiving a call from a parent who disclosed some of the contents of the test. Newey J found that this gave “at best, a misleading picture”.

In the course of his cross-examination before Newey J, Mr Matalia accepted that his nephew sat the test on 7 September 2013 and that he learnt about the comprehension question about lemurs from him. It transpired that Mr Matalia’s nephew had earlier taken the 11-plus test for another area, and that Mr Matalia had posted some details of that test on his website. Mr Matalia gave evidence that the information published about the test used by the Council largely reflected predictions he had already posted on his website. The judge rejected this evidence and found that the screenshots on which Mr Matalia relied were not genuine but were created only in the course of the proceedings.

Before the trial, Mr Matalia refused to give any undertakings, saying in an email to the Council that, quite apart from expecting to win, “it is financially advantageous for me to go to trial and the publicity and media details will be invaluable for my sites.” He also stated that he understood that “there is a surprise waiting for [the Council] for this year’s 11+ exams. I won’t spoil the fun….I did not ask for help, have no involvement, direct or indirect and no contact numbers. I understand the content on my site last year will be insignificant in comparison.”

Newey J granted a final injunction prohibiting Mr Matalia from (i) re-publishing or disclosing before 1 September 2016 the information that had appeared on his website, or (ii) publishing, re-publishing or disclosing the contents the 11-plus tests taken in September 2013, 2014 and 2015 until 1 September 2016, 2017 and 2018 respectively.

The judge recorded counsel then appearing for Mr Matalia as being “inclined to accept that information about the contents of Warwickshire’s 11 Plus test was initially confidential”. The judge continued that “that was clearly the case”. The Council’s principal witness had referred in evidence to the “extreme care that is taken to ensure that the content of the papers is not disclosed before students take them”.

At [34], the judge said:

“It appears to me, too, that it would have been obvious to Mr Matalia, and to any other reasonable person, that the Council did not want information about the contents of the 11 Plus test to be disseminated.”

Counsel for Mr Matalia submitted that, while the test might have been confidential originally, it ceased to be after the sitting on 7 September 2013. The judge rejected this submission at [35]:

“Mr Hyams argued that, while the test might have been confidential originally, it ceased to be so after the 7 September 2013 sitting. In my view, however, the contents of the test did not become “so generally accessible that … it cannot be regarded as confidential”. It is doubtless the case that some of the children who sat the test on 7 September will have told their parents, and perhaps others, something about it, but there is no good reason to think that any, let alone much, information about the contents has become generally known or available. The materials that Mr Matalia has produced certainly do not demonstrate that information about the contents of the test is widely known or available, and Miss Taylor said in evidence that she has not seen test content published on other websites or forums to such a degree or with such accuracy. Further, Miss Taylor explained that it is her personal experience that children do not in normal circumstances remember much specific content, and Mr Pratt thought that the fierce competition for grammar school places would reduce the chances of children or parents passing on information to anyone yet to sit the test.”

At [36] the judge held that the posting of information about the test by Mr Matalia on his website was “plainly unauthorised”. The judge continued:

“There may well be room for argument about whether the Council would, even theoretically, have been entitled to complain about a child telling a parent something about the test or the parent then discussing it with another parent. Posting material on a public website is, however, very different. Mr Matalia, and any reasonable person, would have realised that the Council did not want, and was not authorising, that.”

After dealing with issues raised on behalf of Mr Matalia that are not relevant on this appeal, the judge concluded at [40]:

“I consider, moreover, that the circumstances are such that I ought to grant an injunction. Mr Matalia did not take down the information he had posted when first asked to do so, but only after Judge Barker had granted an injunction. It is true that on 13 September 2013 Mr Matalia expressed willingness to agree not to publish information about the test, but only on a conditional basis, and by April 2014 he was speaking of a forthcoming “surprise” in relation to the 2014 test and refusing to agree to any undertaking. He continues to maintain that he has done nothing wrong, and it appears from his evidence that he is in a position to reveal more information about the 11 Plus papers. Injunctive relief is called for. The fact that the disclosures Mr Matalia has thus far made may not have compromised the 2013 test, at least seriously, does not in any way, to my mind, obviate the need for an injunction.”

The judge went on to consider, and to reject, an alternative basis for the Council’s claim, under section 222 of the Local Government Act 1972. This is the subject of a respondent’s notice but, on account of the view I have formed of Mr Matalia’s appeal and if the other members of the Court agree, it will be unnecessary to consider it.

As earlier mentioned, there are two grounds of appeal which Mr Matalia has permission to advance. It is logical to take first the question of the standing of the Council to bring a claim for breach of confidence, for which permission was granted by Patten LJ on the renewed oral application for permission to appeal.

In his judgment giving permission to appeal on this ground, Patten LJ said:

“So far as the other grounds which Mr Matalia has sought permission on this morning, the first, ground 1 in the grounds of appeal, is an argument that any duty of confidence was owed not to the respondent Council but to Durham University which set the examination papers. That argument is based on the terms of the contract between Durham and the County Council which indicate in clause 4.2 and clause 4.3 that the intellectual property rights in the paper, and most obviously the copyright in the paper, were retained by Durham University and the University agrees (see clause 4.3) that they will assist the County Council as the licensee of the copyright to enforce those intellectual property rights, where appropriate. Mr Matalia wants to argue that it is implicit in that arrangement that any duty of confidence is owed not to the copyright licensee but to Durham University. Although I have considerable doubts whether that can be implied either as a matter of law or contract from the terms of the agreement, it seems to me that it is a short point in respect of which I am prepared to give Mr Matalia permission to appeal.”

The Council, which (as is usual) was not represented at the hearing before Patten LJ, objected at the start of the hearing before us to reliance being placed on what was said before Patten LJ to be terms of the contract between the Council and the University. The document on which counsel for Mr Matalia relied was an unsigned draft contract, which had been disclosed by the Council but not referred to at the trial. The Council denied that any contract in these terms had ever been made and there was no evidence of the terms of a concluded contract relating to the 2013 tests. No questions were addressed to the Council’s witnesses as to the terms agreed with the University and it was not an issue before the judge. Newey J had proceeded on the basis, not contested by the Council, that, as he recorded in his judgment at [1], “the university retains the copyright in the material, but the content and intellectual property rights are licensed to the Council”.

Following argument at the start of the hearing, we ruled that it was not open to Mr Matalia to rely on any suggested contractual terms that had not been the subject of evidence and submissions before Newey J. The appeal could proceed only on the basis stated by the judge, that the University retained copyright in the tests and granted a licence to the Council. On this basis, Mr Bragiel (who had not appeared below) on behalf of Mr Matalia was prepared to proceed on the basis that the Council had the benefit of an exclusive licence. I should add here that, on the view I take of the applicable law as set out below, it makes no difference whether the licence was exclusive or non-exclusive.

The submission on behalf of Mr Matalia was that the Council did not have standing to maintain the claim against him because it was neither the owner of the contents of the tests nor did it have a sufficient interest in such information to enforce an obligation of confidence in respect of it. Mr Bragiel submitted that, while confidential information is not property and an action for breach of confidence is sui generis, literary or commercial information, as opposed to private information, is loosely but aptly described as “intellectual property” and requires to be analysed in an analogous way. He submitted that, save in those cases where an obligation of confidence is imposed by contract or by an express communication of information in confidence, the authorities establish that the person entitled to enforce an obligation of confidence is the owner who originated the information or, in the case of information created by two or more persons, a joint owner or any party with a sufficient interest in it. The only case where even an exclusive licensee has been held entitled to enforce an obligation of confidence is Douglas v Hello! Ltd [2007] UKHL 21; [2008] 1 AC 1, an exceptional case that turned on its own special facts.Mr Bragiel submitted that this accorded with legal principle, which had always recognised a fundamental distinction between rights in the nature of proprietary rights, enforceable against the whole world, and contractual rights such as licences. A licence is no more than a permission to do that which would otherwise be an unlawful interference with property, but does not itself confer any property or interest on the licensee.

It followed, Mr Bragiel submitted, that the University, as the creator of the tests and the continuing copyright owner, was the only party that was entitled to enforce any obligations of confidence in the tests. The University had not imposed any express obligation of confidence in the tests for the specific benefit of the Council nor, unlike Douglas v Hello! Ltd,could it be said that the Council had acquired from the University the benefit of a specific contractual obligation of confidence imposed on another party.

In my judgment, these submissions proceed on a fundamental misunderstanding of the equitable right to enforce confidence in information. As Mr Bragiel accepted, information is not property. There is no principled reason why a right to enforce confidence should be treated as analogous to the enforcement of property rights. Mr Bragiel excepted from his analysis cases based on a right to privacy, but the right to protect private information long pre-dated the acceptance in English law of a right to privacy and formed part of the equitable right to protect confidential information, as it still does. Giving the judgment of the court in Imerman v Tchenguiz [2010] EWCA Civ 908; [2011] Fam 116, Lord Neuberger MR said at [67]:

“However, given that the domestic law on confidentiality had already started to encompass privacy well before the 1998 Act came into force, and that, with the 1998 Act now in force, privacy is still classified as part of the confidentiality genus, the law should be developed and applied consistently and coherently in both privacy and “old fashioned confidence” cases, even if they sometimes may have different features. Consistency and coherence are all the more important given the substantially increased focus on the right to privacy and confidentiality, and the corresponding legal developments in this area, over the past 20 years.”

Mr Bragiel submitted that, even where information has been imparted in confidence by the claimant to the defendant, the claimant does not have standing to maintain an action for breach of confidence unless either there is an agreement (often, though not necessarily, a contract) imposing an express duty of confidence or the claimant is the “owner” of the information. For this rather surprising proposition, Mr Bragiel relied on a passage in the judgment of HH Judge Hodge QC (sitting as a Judge of the High Court) in Jones v IOS (RUK) Ltd [2012] EWHC 348 (Ch). At [40], Judge Hodge said that the claimant

“must be the person who is entitled to the confidence, and to have it respected. In my judgment, that requires the claimant to show that he has sufficient interest in the information to entitle him to maintain an action to restrain its unauthorised dissemination or use. In my judgment, however, it is not appropriate to approach the issue whether this requirement is satisfied in terms of an inquiry as to whether the relevant information is the claimant’s “property”. As Lord Denning MR observed in Fraser v Evans at 361B-C:

“The jurisdiction is based not so much on property or on contract as on the duty to be of good faith.”

Indeed as the Court of Appeal recognised in Coogan & Phillips v News Group Newspapers Ltd [2012] EWCA Civ 48 (decided after I had reserved judgment) at paragraphs [33]-[39], confidential information is not strictly “property”; although it is “property-like”, and it is not inappropriate to include it as an aspect of intellectual property”.

That passage is entirely contrary to Mr Bragiel’s submission. It is not any the less so because Judge Hodge went on to say that the appropriate inquiry “in the context of the present case”, which was very different from the case before us and concerned commercial information connected with pricing and a tender process, was whether the claimant’s company had made a sufficient contribution to the creation of the information, in the furtherance of its own commercial interests, to justify the imposition of an enforceable duty to keep it secret.

Whether a duty of confidence arises in favour of a claimant will always depend on the precise circumstances of the case, but if confidential information is imparted by A to B in circumstances where B knows or ought to know that it is imparted in confidence, that may and often will be sufficient to affect the conscience of B in equity so as to impose on him in favour of A a duty to keep the information confidential. Whether that is the limit of the circumstances in which a claim for breach of confidence may be maintained is one of the issues raised under the second ground of appeal, but it, like the “privacy” cases, suffices to show that breach of confidence is a broad doctrine.

In the present case, the Council commissioned the University to prepare the tests. They were not prepared for the benefit of the University or to be used by it. They were commissioned so that the Council could in turn fulfil its obligations to the grammar schools to provide and administer the 11-plus tests. In order to do so, it was too obvious to need stating that the tests had to be kept confidential until they were taken by all pupils sitting them. If all or part of the contents of the tests were made public, there was at least a risk that the integrity of the tests and public confidence in them would be undermined. As the provider and administrator of the tests, the Council had a substantial and legitimate interest in the maintenance of their confidentiality. In the circumstances, it was the obvious person to enforce that confidentiality. There was no particular reason for the University to do so. Indeed, if Mr Bragiel’s submission were correct, it would seem that the University could itself threaten to publish the tests before they were taken, without the Council having any entitlement to restrain it, unless a duty were implied as a term of the licence granted to the Council.

The judge was right to say “it would have been obvious to Mr Matalia, and to any other reasonable person, that the Council did not want information about the contents of the 11 Plus test to be disseminated”. When the judge referred to the Council not wanting the information to be disseminated, he was not referring to a personal desire but to a substantial and legitimate interest in preventing the dissemination of the contents of the tests.

Subject therefore to the suggested need for a chain of confidentiality arising under the second ground of appeal, I consider that the Council had, in the circumstances of this case, the standing to bring proceedings to protect the confidentiality of the tests. Mr Matalia therefore, in my judgment, fails in his first ground of appeal.

Patten LJ gave permission to appeal for an argument that was based on particular clauses in what he understood to be the contract between the Council and the University, and even then he had considerable doubts about it. Once it was established that it was a draft contract and that there was no evidence that any actual contract contained those or similar clauses, there was little left in this ground.

The second ground of appeal challenges the judge’s conclusion that each of the three limbs of the test to establish a breach of confidence set out by Megarry J in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 was satisfied. It is Mr Matalia’s case that none was satisfied.

The test formulated by Megarry J at p.47 of the report, and subsequently approved and applied many times, is:

“In my judgment, three elements are normally required, if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

Ground 2 is as follows:

“2.

The judge erred in concluding that the Appellant had committed a breach of confidence, given that

2.1

the relevant information which the Appellant had published on his website (“the Information”) was (as was accepted by the Judge, in paragraph 35 of his judgment (“the judgment”)) communicated to him by one or more pupils who themselves were under no duty of confidence in relation to the Information;

2.2

the Information was, in the context (see paragraph 34 of the Judgment, and paragraph 2.4 below), trivial;

2.3

the Information concerned a test about which the deviser of the test (Durham University) said to the Respondent (only 3 days after the 11+ examination from which the Information was believed by the Appellant to be drawn)

2.3.1

“the testing process as a whole would not seem to have been compromised” and

2.3.2

“If there are issues [i.e there was a possibility of late sitters having any “particular advantage” where the Respondent “had concerns”, the Respondent had] the option of excluding these questions from the results”;

2.4

the Respondent had written to the Appellant in April 2011 that

“it would be very very difficult for a child to remember any of the questions in enough detail to pass on to children who are yet to take the test in order for that child to be at any significant advantage” (see paragraph 34 of the judgment);

2.5

websites other than that of the Appellant had revealed and continued to reveal similar information about the content of the 11+ examinations set by the Respondent;

2.6

there was evidence before the Court that persons who acted (for financial reward) as tutors for the 11+ examinations set by the Respondent appeared surreptitiously to use information comparable to the Information in preparing their tutees to take the 11+ examinations administered by the Respondent (see paragraph 6 of the Appellant’s witness statement of 8 December 2014); and

2.7

there was evidence before the Court that children who had taken the 11+ examinations were giving to their friends and relatives who were about to sit the same examination at a later date information which was at least comparable to the Information (see also paragraph 6 of the Appellant’s witness statement of 8 December 2014).”

Apart from sub-paragraph 2.1 of Ground 2, which clearly relates to the second limb of Megarry J’s test, the other sub-paragraphs appear to relate both to whether the information disclosed by Mr Matalia on his website had the necessary quality of confidentiality about it (limb 1) and to whether its disclosure was to the detriment of the Council (limb 3). As to the other part of limb 3, that the disclosure was unauthorised, it is clear that neither the Council nor any other person authorised the disclosure.

Mr Matalia submits that because he received the information from one or more pupils who were themselves under no duty of confidence in relation to it, he was not himself under any obligation of confidence and was free to publish it as he saw fit. He submits that the candidates were free to disclose the contents of the test and could therefore transmit the contents to others without any duty of confidentiality being imposed on the recipients.

Although Lewison LJ subsequently clarified that he gave permission to appeal on the entirety of Ground 2, he focussed on this issue in his reasons:

“1.

Although the evidence is not entirely clear, it seems to be the case that the pupils taking the test were not told that it was confidential or that they should not discuss the contents of the test with others.

2.

If that factual premise is correct then it is arguable that the judge was wrong to find that all three limbs of the test in Coco v Clark were satisfied.”

Despite this, Mr Bragiel’s skeleton argument made very little of Ground 2.1. He made even less of it in his oral submissions and, in answer to a question from Lindblom LJ, accepted that the issue was whether the information was confidential in nature and whether Mr Matalia realised or should have realised that it was confidential. However, in a note sent to the court after the hearing, Mr Bragiel stated that he had not abandoned reliance on the fact that the children taking the test were not told that the test was confidential or that they should not discuss it with others. He said this was the fundamental factor relied on and was relevant to each of the three limbs of Megarry L’s test.

I do not consider this ground of appeal to be well-founded. While it is true that many of the earlier cases rest on a duty of confidence owed by the defendant to the party that communicated the information to them, that is not now (if it ever was) the sole basis of an actionable duty of confidence or a necessary element of it. The essential element is that the defendant is in possession of information that he knows, or (viewed objectively) ought to know, is confidential.

In the leading case of Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, Lord Goff of Chieveley said at p. 281 (having expressly disclaimed any intention to embark on an exegesis of the law relating to breach of confidence):

“I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word “notice” advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.

I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties – often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions “confider” and “confidant” are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”

In the same case, Lord Griffiths said at p.268: “The duty of confidence is, as a general rule, also imposed on a third party who is in possession of information which he knows is subject to an obligation of confidence.”

In Imerman v Tchenguiz at [64], Lord Neuberger MR said of AttorneyGeneral v Guardian Newspapers Ltd that “the law of confidence was authoritatively extended to cases where the defendant had come by the information without the consent of the claimant”. At [68] he said that “confidence applies to a defendant who adventitiously, but without authorisation, obtains information in respect of which he must have appreciated that the claimant had an expectation of privacy”.

At [69], Lord Neuberger MR made this important statement of general principle:

“In our view, it would be a breach of confidence for the defendant, without the authority of the claimant, to examine, or to make, retain, or supply copies to a third party of, a document whose contents are, and were (or ought to have been) appreciated by the defendant to be, confidential to the claimant. It is of the essence of the claimant’s right to confidentiality that he can choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the protection of the confidence. It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy. Without the court having the power to grant such relief, the information will, through the unauthorised act of the defendant, either lose its confidential character, or will at least be at risk of doing so. The claimant should not be at risk, through the unauthorised act of the defendant, of having the confidentiality of the information lost, or even potentially lost.”

In Primary Group (UK) Ltd v The Royal Bank of Scotland plc [2014] EWHC1082 (Ch); [2014] RPC 26, Arnold J carefully examined these and other authorities, concluding at [223] in a passage with which I agree:

“It follows from the statements of principle I have quoted above that an equitable obligation of confidence will arise not only where confidential information is disclosed in breach of an obligation of confidence (which may itself be contractual or equitable) and the recipient knows, or has notice, that this is the case, but also where confidential information is acquired or received without having been disclosed in breach of confidence and the acquirer or recipient knows, or has notice, that the information is confidential. Either way, whether a person has notice is to be objectively assessed by reference to a reasonable person standing in the position of the recipient.”

The judge referred to most of these authorities and commented, correctly, that it had become clear that “the law of confidence can apply to cases where the defendant came by the relevant information without the claimant’s consent”. He correctly held that an injunction lay against Mr Matalia whether or not the children who supplied information to him were themselves under any duty of confidentiality. The confidential character of the information was obvious to Mr Matalia, as was the fact that the Council did not want and had not authorised its publication on his website.

This is sufficient to dispose of this ground of appeal. I should add that the existence and extent of any duty on the children who took the test is not straightforward. I have earlier quoted from [36] of the judgment.

It seems highly improbable that a 10 or 11-year old child would be prohibited from discussing the test with their parents, but that gets Mr Matalia nowhere. First, it does not follow that candidates owe no duty of confidentiality. If the Council became aware that a candidate was proposing to publish questions on social media, I do not see why it could not take steps to restrain it, assuming that the candidate knew that there were to be further sittings of the test. If, by virtue of their age, the candidates were not susceptible to injunctive relief, communication by them would be analogous to the example given by Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) of the confidential document being wafted into the street by an electric fan and picked up by a passer-by.

Secondly, and in any event, it does not follow that because a child can tell his or her parents about questions in the test they have taken, the parents are free to publish that information, knowing that other candidates are yet to take the test. The communication is made by the child in very particular circumstances, as part of the child-parent relationship. Given the confidential character of the information, as will or should be apparent to the parents, it would in my judgment be entirely consistent with principle to impose the duty of confidentiality on the parents, and quite contrary to principle to treat the parents as free to publish the information as they saw fit.

Mr Matalia’s overall submission is that the information he published was so limited and imprecise (“trivial”: sub-paragraph 2.2) as not to be confidential and, in any event, not such as to cause detriment, particularly given the other sources of information about the contents of the tests available to candidates.

As to the triviality of the information published by Mr Matalia, the judge summarised the important features of it at [11] and referred at [22] to the email dated 10 September 2103 from the University which stated “I have gone through the papers and most of what has been reported on CEM11plus [Mr Matalia’s website] isn’t an issue and won’t confer any real advantage to children who may have seen it (although there is still a perceived advantage)” (emphasis added). The judge also quoted the following from the same email: “I can identify one verbal question (1 mark) that is definitely compromised”. The judge went on to refer to the oral evidence of Mr Pratt, the Council’s lead officer for pupil and student services, that “a single “raw” mark can, when standardised, account for as many as six marks and increase a child’s ranking significantly”. It is worth adding that it was in the same email that the University said that as a result of the disclosure about the maths questions “day 2 candidates may be at an advantage”, even though the exact questions were not revealed.

In the internal email dated 10 September 2013 quoted in sub-paragraph 2.3 of Ground 2, which was before the judge, Mr Pratt wrote:

“I have now discussed the situation with the supplier of the test papers and their view is that the testing process as a whole would not seem to have been compromised. There will, however, be a perception that certain candidates will be at an advantage, and there are certain questions where the feeling is that the information published will have an impact. However, there are around 250 questions in the test, and analysis of the results data will allow us to identify whether or not late sitters have any particular advantage in the questions where we have concerns. If there are issues we have the option of excluding these questions from the results.”

Having regard to this evidence, there was more than sufficient material on which the judge could conclude that the information disclosed by Mr Matalia was far from trivial and had the necessary quality of confidentiality about it. It plainly does not follow from the view that the testing process “as a whole” had not been compromised that there was no breach of confidence in the disclosures made by Mr Matalia.

Sub-paragraphs 2.3 to 2.7 appear primarily directed at whether, for the purposes of limb 3 of Megarry J’s test, the disclosure by Mr Matalia was detrimental, given the view that the testing process as a whole had not been compromised and given that the information or similar information was available to candidates from other sources.

On this issue, too, the judge had before him the relevant evidence, some of which he cited, and expressly directed himself to Megarry J’s test. Again, it does not follow from the conclusion that the testing process “as a whole” had not been compromised that the disclosure was not detrimental to the administration by the Council of the test. The evidence as a whole was more than sufficient to entitle the judge to conclude that it was detrimental.

As to the information being available from other sources, the judge specifically found at [35], quoted earlier in this judgment, that after the first sitting on 7 September 2013 the contents of the tests had not become so generally accessible as to cease to be confidential. In that paragraph, the judge dealt with the evidence adduced by Mr Matalia on this issue. In my view, there are no grounds for interfering with the judge’s findings.

For the reasons given above, I do not consider that any of the grounds of appeal is well-founded. In my judgment, the judge was fully entitled to grant the injunction in the terms of his order and I would dismiss the appeal.

I agree.

I also agree.