ZXC v Bloomberg L.P.

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Between :

This is a claim for misuse of private information. The central issue is whether the Claimant can have a reasonable expectation of privacy in information that relates to a criminal investigation into his activities. No charges have been brought against the Claimant.

The Claimant originally included also claims for breach of confidence and breaches of the Data Protection Act 1998, but these claims have fallen away. Mr Owen QC, for the Claimant, accepts that, on the facts of this case, (1) if the Claimant does not succeed with his misuse of private information claim, then he will not succeed with a

This judgment is a version of a private judgment that I have handed down today. Parts of the private judgment have been removed or altered in order to produce this public judgment. The purpose of doing so is to avoid identifying the Claimant who has been anonymised by the Court due to the nature of the claim. The Court has made a reporting restriction order prohibiting the reporting in connection with these proceedings of the name of the Claimant or any particulars or details likely to lead to the identification of the Claimant as the Claimant in these proceedings. The contents of this public judgment can be reported freely.

The Claimant is a citizen of the United States, but he has had indefinite leave to remain in the UK since 2014. He worked for a company, X Ltd, and became the Chief Executive of one of its divisions. He was not a director of the company.

The Defendant is an international financial software, data and media organisation which has its headquarters in New York. The Defendant publishes content on several platforms, including on Bloomberg.com. Bloomberg News is well-known, and recognised, particularly for financial journalism and reporting.

X Ltd carried on business in several foreign countries.

The integrity of some transactions involving X Ltd had been publicly questioned for a number of years.

A UK law-enforcement body, “UKLEB”, began an investigation into X Ltd. The position, today, is that no-one has been charged as a result of the UKLEB investigation. Media reports as to the progress of the UKLEB investigation have appeared, from time to time, and there has been speculation as to the status of the investigation and the focus of UKLEB’s inquiry. UKLEB’s policy is not to make any public comment upon ongoing investigations and details in those reports would therefore appear to be either conjecture or to be based upon unauthorised – and therefore unconfirmed – disclosures.

In the Autumn of 2016, Bloomberg published an article on its website concerning the Claimant and the UKLEB investigation written by HYX (“the Autumn Article”).

Although the Autumn 2016 Article is not sued upon by the Claimant, the circumstances in which it came to be published have been the subject of evidence during the trial.

David Byrne is an experienced criminal solicitor. He was representing the Claimant in relation to the UKLEB investigation. In 2016, UKLEB had informed the Claimant that he would be required to attend for an interview under caution. Arrangements were made, and the Claimant (accompanied by Mr Byrne) duly attended for interview in the Autumn of 2016.

HYX emailed Mr Byrne. She told Mr Byrne that she had been trying to contact him, but his mobile phone had been switched off. In fact, at that moment, Mr Byrne had been sitting with the Claimant during his UKLEB interview. HYX stated that she wished to speak to Mr Byrne about the Claimant and asked him to telephone her as soon as he got the email. In gaps in the interview, Mr Byrne was able to send short emails to HYX asking her what she wanted. HYX replied by email:

“I understand [ZXC] has been called in by the [UKLEB] for an interview under caution as part of the [X Ltd] investigation and I’m writing a story noting this.

On background (i.e. not for attribution) I wondered if there was anything you wanted to say that I may not be aware of to put this into context/ and or anything that may be important for me to include to fully reflect your client’s position?

And, of course, I also wanted to check if there was any comment you wanted me to include on-the-record.

Let me know if you would prefer to respond by phone. I can make myself available this evening.”

Mr Byrne was shocked that HYX had obtained this information. He considered that it could only have come from an unauthorised disclosure from UKLEB; no-one else knew the arrangements for the interview. The Claimant made the point in his evidence that he had been told by UKLEB that he had to keep the fact that he was being interviewed confidential. On the evidence, it would appear likely the information received by HYX had come from someone at UKLEB. This has not been confirmed by the Defendant on the grounds that this would disclose a confidential journalistic source.

Mr Byrne considered that, as the information that the Claimant had been interviewed by UKLEB was going to be published, the Claimant had little choice but to offer some comment for publication. That was an understandable media strategy. So, the following morning, again finding time between the Claimant’s interviews with UKLEB, Mr Byrne spoke to HYX on the telephone and gave her a comment for publication.

HYX confirmed the terms of the statement with Mr Byrne by email and shortly thereafter the Autumn Article was published online. Comments from him appeared in paragraphs 2, 4 and 6. A spokeswoman at UKLEB was quoted as declining to comment, no doubt acting in accordance with UKLEB’s policy not to comment on ongoing investigations.

Although not pleased about the leak of information that led to it, the Claimant did not take any action over the Autumn Article.

The claim in this action arises from the publication of a further article by the Defendant. The article, in the following terms, was written by [the Journalist] (“the Article”).

The information in the Article was almost exclusively drawn from a letter sent by

The United Nations Convention against Corruption was adopted on 31 October 2003 (“the Convention”). It included provisions for mutual legal assistance (“MLA”): a method of cooperation between States for obtaining assistance in the investigation or prosecution of criminal offences.

Under paragraph 15 of Article 46 of the Convention, a request for MLA is required to include:

MLA is usually sought by way of Letter of Request. Letters of Request are formal, and highly confidential, documents. This is recognised, and explained, in the 2015 Home Office guidance Requests for Mutual Legal Assistance in Criminal Matters:

In National Crime Agency -v- Abacha [2016] 1 WLR 4375, the Court of Appeal reviewed the status of requests for MLA in an appeal against a refusal to order inspection of a particular MLA request under CPR Part 31.14. Gross LJ (with whom Hamblen LJ and Sir Colin Rimer agreed) explained the special status of Letters of Request and other requests for MLA:

In each of the cases where the confidentiality of Letters of Request or other requests for MLA was considered, the issue was approached from the standpoint of the requesting State and the identified confidentiality interests were those of the requesting State. The potential harm from disclosure of the request for MLA was to the relevant criminal investigation and to the wider public interest in supporting and maintaining effective investigations into international crime. The cases do not consider whether disclosure of the request for MLA engages and potentially harms the separate privacy interests of the identified subject(s) of the criminal investigation.

The LoR was a 15-page letter with several enclosures. It was addressed to the Competent Authority of the foreign state (“CA”). I do not need to set out the whole letter, but I note the following:

The Journalist’s evidence at trial was that he had been given a copy of the LoR. The delay between when he first received it and the publication of the Article appears to be a result of a request from his source not to publish the information from the LoR immediately. In [Month] 2016, the Journalist emailed a draft of the Article to his immediate superior, [the Editor]. The actual text of the draft article has been redacted by the Defendant (on the asserted grounds of relevance), but by way of background, the Journalist told the Editor:

“Reading the [LoR] again I realized that it actually states explicitly that the nine individuals are under investigation. While the investigation has been reported before, I don’t think anyone has been able to report the names of specific [X Ltd] execs under investigation or that [name] is being investigated...”

On Wednesday [Month] 2016, the Journalist emailed the Editor to advise him that he had not “started right of reply yet” as he was waiting to see which individuals in his draft of the Article it was ultimately decided should be included. The “right of reply” was a reference to the journalistic practice of contacting the subject of an article for a comment or reaction before publication.

On Thursday [Month] 2016, the Editor emailed a draft of the Article up the editorial chain of the Defendant to Antony Sguazzin, Managing Editor. The Editor was concerned that, at 1,000 words, the draft was “trying to cram in lots because all of the info in the [LoR] is new”. He advised Mr Sguazzin that he had not yet shown the article to the Defendant’s Standards and Legal department.

The same day, at 11.54, the Journalist emailed HYX for assistance with the article. He was aware that HYX had sought comment from the Claimant in relation to the Autumn Article. The Journalist told HYX that he had “a leaked letter from [UKLEB] to the [foreign] government, requesting bank and corporate records to assist the investigation”. He asked her whether she could approach him again for a response to the proposed article. The Journalist also asked HYX to contact UKLEB. HYX was the reporter at the Defendant who was responsible for covering matters relating to

HYX duly emailed the Press Officer at 14.07 on that Thursday:

“A colleague of mine is writing a story about [X Ltd] focused on a letter of request you made to the [foreign state’s] authorities. It notes that you are investigating [name] as well as a list of [X Ltd] execs… and what you are looking at in the probe – including [various transactions] between [date] and [date]. If you can let me know if you have any comment asap that would be great.”

In her evidence, HYX said that it was her experience that UKLEB would not comment on ongoing investigations. She was not surprised, therefore, when the Press Officer responded, at 15.59 that afternoon, confirming that UKLEB declined to comment on the story. HYX emailed the Journalist to confirm that this was UKLEB’s position.

However, it appears that, very quickly thereafter, the Press Officer had reappraised the situation and had a change of heart. At 16.14, the Press Officer emailed HYX:

“Coming back to you again on this – if your colleague has a letter of request (that would be confidential) and the printing of such could prejudice an ongoing criminal investigation. Can your colleague please let me know urgently what is intended to go out in this article please and when?”

The Press Officer has not given evidence, but it appears likely that she had not initially focused on the nature of the document upon which the Defendant was proposing to base its article. It is clear, however, that as soon as the Press Officer realised that the Defendant was proposing to publish material from a letter of request, UKLEB became immediately very concerned about the publication of information from the LoR.

HYX forwarded the Press Officer’s email to the Journalist at 16.42, confirmed to the Press Officer that she had done so, and said that the Journalist would contact her directly. At 16.46, the Journalist forwarded the email from the Press Officer to the Editor and alerted him to UKLEB’s change of stance towards the threatened publication of the article.

Consistent with UKLEB’s concern over the threatened publication, having not heard from the Journalist, the Press Officer emailed HYX again at 17.29:

“Unfortunately, no one came back to me. Who is your colleague writing this and when can he/she come back to me?

As said earlier we believe the publication of material pertaining to an LoR will pose a material risk of prejudice to a criminal investigation…”

HYX replied at 17.48, advising the Press Officer that the journalist who was writing the Article was the Journalist, reassuring her that nothing would be published that evening and stating that the Journalist would telephone her in the morning. the Press Officer responded at 17.51, thanking HYX for the information and advising that, if

Separately, and following the Journalist’s request to contact the Claimant, HYX emailed Mr Byrne at 14.18 on the same Thursday [Month] 2016:

“A colleague of mine is writing a story re the [X Ltd] investigation based on a request for assistance sought by [UKLEB] from the [authorities of the foreign state].

The letter alleges that [ZXC] gave the X Ltd board false information to get them to sign off on a purchase of [an asset for a substantial sum]. The allegation is that [X Ltd] paid [the money] for a [potentially worthless asset] and that this money – which was transferred to a whole series of shell companies – was a bribe.

Please let me know asap if you’d like me to include any comment on behalf of [ZXC] in the story…”

Mr Byrne, who as I have already noted was an experienced criminal lawyer, said in his evidence that he was very surprised to learn that the Defendant had seen the LoR because it was a highly confidential State-to-State law enforcement document. He considered that it could only have been obtained by the Defendant as a result of someone committing a serious breach of confidence.

As HYX had not heard back from Mr Byrne, she sent him a further email at 10.09 saying that if she did not hear back from him, the Defendant would assume that he did not want to comment. The two eventually spoke on the telephone late in the afternoon on Friday [Month] 2016. HYX told Mr Byrne that the draft Article was with the Defendant’s lawyers and that it might well be published that evening. Mr Byrne said that he expressed his surprise that the Defendant was contemplating publishing information “from such a confidential document”. HYX, in her evidence, said that she did not recall Mr Byrne expressing this view. When cross-examined she said she did not think that Mr Byrne was particular about the LoR and she did not recall him expressing his feelings in the forceful way he had done before the Autumn Article. On this point, I accept the evidence of Mr Byrne. I consider that, as an experienced criminal solicitor, he was genuinely shocked that the Defendant was considering publishing material from an LoR. He may not have expressed himself as forcefully as in the Autumn call, but I am satisfied that he conveyed his surprise that the contents of an LoR might be published.

HYX and Mr Byrne did not communicate again before publication of the Article. No one at the Defendant contacted UKLEB on that same Friday [Month] 2016 to follow up on the concern expressed by the Press Officer.

It appears that during Friday [Month] 2016, the Article was sent for review by the Defendant’s in-house lawyers. The advice has not been disclosed. At 16.39, the

When the Article did not appear over the weekend, Mr Byrne concluded that the Defendant was likely to have received advice and concluded that the LoR was a leaked law enforcement document relating to an ongoing investigation that was highly private and confidential and that information from it could not be published. Mr Byrne was wrong.

On the following Monday [Month] 2016, at 09.43, the Editor emailed Mr Sguazzin the current draft of the Article and advised him:

“…this needs a final backread for grammar etc. just spoke to [the Journalist] and he says UKLEB’s only comment was: ‘I look forward to reading your story.’ so we’re good to go”

The Journalist said that he had telephoned UKLEB before this email was sent. He was unable to speak to the Press Officer (or her superior) but did speak to someone called “P” (he did not know his surname). P repeated UKLEB’s ‘on-the-record’ position – that it did not comment on ongoing investigation – but expressed a personal view that he looked forward to reading the story. Shortly after that, however, a little before 10.00, the Press Officer telephoned the Journalist. In his evidence, the Journalist said that the Press Officer had asked for an outline of what information from the LoR the Defendant intended to include in the Article. He told her that he had discussed this request with his senior editors but that the decision had been taken to refuse the request on the basis that it was the Defendant’s standard practice not to share a draft of an article.

The journalistic resistance to providing a draft of an article to someone prior to publication is not uncommon (and may well be justifiable), but this was not what the Press Officer was asking for. She was trying to establish whether what the Defendant was intending to publish would potentially harm the investigation. That was not an unreasonable request. It did not require provision of the whole Article, just a summary of the key points from the LoR that the Defendant intended to include. When cross-examined, the Journalist suggested that the Defendant would have considered any points UKLEB wanted to raise about possible prejudice to the investigation. However, without knowing what from the LoR the Defendant intended to publish, the Press Officer could not begin to engage in that dialogue. The Press Officer would also have been justifiably concerned that nothing she said should be seen as confirming details from the LoR.

Nevertheless, during her call, the Press Officer had clearly repeated to the Journalist UKLEB’s concerns regarding publication. The Editor emailed Mr Sguazzin again at 10.07:

“hi – need to consult when you’ve got a minute. [The Journalist] spoke to [UKLEB] and they’ve said they have concerns. asked for outline of story, but

I’ve said we can’t do that. they now saying their case team will come back to us in next coupla hours outlining their concerns about us publishing…”

At 10.36, Mr Sguazzin emailed a copy of the article to Heather Harris, an executive editor:

“… We called [UKLEB] today to give them final chance – they said they would go back to their case team and get back to us in a few hours – they’ve had [time period] already to comment...”

Ms Harris responded at 10.51 that she thought the article “seems fine… unless they’re in any way questioning the veracity of this letter”. That response tends to show that Ms Harris either had not focused upon the nature of UKLEB’s objections to publication (if they were communicated to her) or she had misunderstood them. The issue was not the authenticity of the LoR; it was UKLEB’s concerns about publishing the confidential information contained in it and the harm that might be caused to the ongoing investigation.

Mr Sguazzin responded immediately: “No they just don’t like the fact we have it…” Mr Sguazzin was not called to give evidence, but this remark shows that he also had not understood the nature of UKLEB’s objections. UKLEB’s complaints were not simply the understandable irritation and concern of a body that had discovered that a highly confidential document had been leaked to a media organisation. The Press Officer had specifically articulated (at least twice) the risk to the ongoing investigation that was posed by publication. The same risks to the investigation, if the confidentiality of the LoR was not respected, were also spelled out in the LoR itself.

At 11.07, the Journalist emailed the Press Officer:

“Our executive editor [Ms Harris] has decided to publish and I can’t hold them off any longer. I’ve done what I can. The story is going out now.”

The Article was then published on the Defendant’s website.

The Journalist was asked by Mr Owen QC why the Defendant had not waited the few hours that UKLEB had requested before publishing the Article. The Journalist replied that he thought that UKLEB had not been consistent in its position and had given “mixed messages”. I do not accept that. Apart from the off-the-record (and clearly ‘off-the-cuff’) remark of “P”, UKLEB had, through the Press Officer – its senior communications officer and the Defendant’s key contact – been consistent throughout as soon as she appreciated that the Defendant had a copy of the LoR. Insofar as the Defendant contends that UKLEB did not articulate its concerns regarding publication fully or clearly, that was largely as a result of two factors: first, the Defendant had practically disabled UKLEB’s ability to do so by its refusal to provide sufficient information identifying – even in outline (or “bullet-points” as the Press Officer had requested in her call with the Journalist) – what from the LoR it was intending to publish; and second, the Defendant was not prepared to delay publication. The Journalist gave this answer in his evidence as to the timing of publication:

“… once we have taken a decision to publish and we have informed all of the intended… subjects of the story, particularly when it is a sensitive story and there is the potential for push back from subjects in that story, we normally try to move quite quickly”.

He was not asked to clarify what he meant by “push back” but one form of “push back” is obviously an application for an injunction.

It is a striking feature of this case – and one upon which Mr Owen QC has relied – that in none of the pre-publication email communications is there any recognition of the highly confidential nature of the LoR or any record of whether (as claimed by the Defendant’s witnesses called to give evidence at the trial) there was a careful (or indeed any) assessment of the potential consequences of breaching that confidentiality or any weighing-up of this against the perceived public interest in publication.

In his First Witness Statement, the Journalist explained how he and his colleagues had approached the decision to publish information from the LoR:

“I discussed [the LoR] with editorial colleagues on or around [Date]. After careful consideration of all material facts, including in particular a weighing of the public interest in the disclosure of [the Claimant’s] involvement in the matter against any countervailing considerations, we took the decision to name [the Claimant] within [the Article] along with two other individuals under investigation. In particular we considered the following facts to justify doing so:

(a)

the [LoR] contained specific allegations regarding [the Claimant] in connection with X Ltd’s purchase of [an asset]; and

(b)

[the Claimant] was responsible – and was publicly known to be responsible – for X Ltd’s activities in [this area] throughout the period under investigation by UKLEB...

As to his assessment of the “strong” public interest in reporting matters relating to UKLEB investigation, including details relating to the Claimant, the Journalist identified the following:

“(a)

There are plainly very strong grounds for considering that there is widespread and substantial corruption in [the country] which is having catastrophic consequences on the bulk of the population there. That is a major matter of international public concern.

(b)

[X Ltd] was a major… international business. Its successor company is also a major international business represented by [number of] people worldwide. Any suggestion of significant impropriety at such a business is also a major matter of public concern internationally.

(c)

… [T]he suggestion arises from [the LoR] that in at least one instance any wrongdoing was the act of individuals and the [X Ltd] board was itself misled. If that is correct, it is only right and only fair to [X Ltd] that this is reported fully.

(d)

… [T]here is a perception of an on-going prevalence of corruption in [certain transactions in the country] and it is constructive for material like this to be in the public domain so that there is wider consciousness about the corruption problems that exist in [the country] and so that the consequences for individuals may act as a deterrent for others.

(e)

Full reporting of [the UKLEB] investigation may encourage witnesses to come forward and assist [UKLEB].

(f)

These matters have been considered in considerable detail by and are a matter of concern to UK Parliamentarians.

(g)

[redacted].

(h)

[The Claimant] is an international businessman likely to have continuing business activities.

(i)

… Bloomberg and Bloomberg News have a particular focus on financial matters in [the area] where it aims to promote transparency, accountability and good governance…

Finally, if I as a journalist were to come across credible allegations suggesting impropriety on the part of individuals such as that suggested by [the LoR] but where there was no police or equivalent investigation, I would undoubtedly wish to investigate allegations and, if they remained credible and after putting the allegations to the individuals concerned and considering the public interest, would wish to publish them. I do not understand why the fact of the UKLEB Investigation should restrict my ability so to publish. Indeed, common sense would dictate just the opposite result.”

In relation to that last paragraph, I note the following:

The Journalist explained his understanding of the width of his right to report upon the UKLEB investigation as follows:

“… I believe that I and my colleagues at Bloomberg News should have the widest possible ambit to be able to report on all matters relating to the [UKLEB] Investigation, where we consider reasonably in our professional editorial judgment that it is in the public interest to do so.”

In re-examination, Mr Millar QC asked the Journalist whether “widest possible ambit to report” was his phrase. He replied: “No, I don’t believe it was actually, initially written by me”. That was probably not the answer that Mr Millar QC was expecting. The cogency (indeed, credibility) of a witness’s evidence is undermined if it appears that words have been put into his/her mouth when the witness statement is drafted.

By the time the Article was published, the Journalist had been a journalist with the Defendant for around 16 months. In contrast to his inexperience, the Editor was a seasoned journalist. He had been an editor for the Defendant for 12 years, and had been a journalist for 30 years. Nevertheless, he accepted that he was not familiar with the status of Letters of Request or the MLA regime generally. Although he had not seen a copy of it, the Editor said that the confidential nature of the LoR was well understood prior to publication. He accepted that he was unaware that the LoR had a specific section dealing with the confidentiality of the request and the potential risk to the investigation if its contents were disclosed. He said that, with hindsight, he should have known about this. Notwithstanding this, in answer to a question by Mr Millar QC, the Editor maintained that, even if he had seen it, it would not have altered his decision regarding publication.

The Defendant’s evidence as to the alleged assessment of the public interest and the decision to publish comes from the Journalist and the Editor. But it is clear on the evidence that they did not actually make the decision. It was taken at a much higher editorial level within the Defendant - by individuals who have not given evidence – and then communicated to the Editor (and the Journalist).

Put shortly, therefore, I do not know whether the matters advanced by the Journalist and the Editor in their evidence as bearing upon the public interest in, and justifying publication of, the Article were actually the matters that were considered by

On the evidence, I conclude that no-one at the Defendant involved in publication of the Article was aware of just how sensitive the LoR was. There is no hint of this even being a consideration in any of the email traffic, and the Press Officer’s concerns about its publication failed to alert them to this important issue. It might be thought surprising that an international publisher of the standing of the Defendant had failed to appreciate (or inform itself) of the status of a letter of request. The Journalist is the only person, who gave evidence, who had actually read the confidentiality section in the LoR (see [24(viii)]), although the LoR had been sent to the in-house lawyer Ms Graham (see [40]). In his evidence, the Journalist accepted that this was “a warning to the world, in effect, to anyone who gets hold of it… that they must not, effectively, leak this information because it will harm [the UKLEB] investigation.”

Equally, the evidence strongly suggests that the editorial process of the Defendant simply failed to appreciate that the Article potentially engaged the privacy interests of the Claimant. The Journalist and the Editor were concerned that the allegations made against the Claimant in the LoR should be put to him for comment before publication. In his evidence, the Editor considered that the purpose of contacting the Claimant (or his representatives) prior to publication was to give him a right of reply and/or to obtain a comment.

In the context of defamation, the purpose of offering a ‘right-to-reply’ is obvious; it enables the respondent to deny the allegations (if he wishes to) and to advance any matters that s/he considers have a bearing on the truth of the allegation(s). But those considerations do not operate (to such an extent or at all) where the subject’s objection to publication is not the truth or falsity of the allegations, but rather that, as private information, they should not be published at all. The conventional ‘right-toreply’ approach made to a subject will usually alert him/her to the fact that the media organisation is intending to publish material to which the subject may object on grounds of privacy and/or confidentiality, but that is a by-product, not its purpose. Here, the approach by HYX did enable Mr Byrne, on behalf the Claimant, to register his objection to publication on the basis of confidentiality/privacy interests arising from the nature of the LoR. But thereafter Mr Byrne’s response was treated by the Defendant as the Claimant not responding to a request for comment. The obligation to “put” the allegations to the Claimant was regarded as having been discharged. This obscured the fact that the Claimant’s real objection to publication was on grounds of confidentiality/privacy. There is no record of Mr Byrne’s objection having been acknowledged or discussed further by any of the Defendant’s staff.

UKLEB’s response to publication of the Article was swift. Again, consistent with the matter causing some alarm to UKLEB, the Press Officer (or her senior) telephoned HYX within minutes of it being published online. In her evidence, HYX confirmed that UKLEB was expressing unhappiness about the publication of the Article, but she did not have a long discussion about it in the call. She reported the call to the Journalist in an email at 11.23:

“… I had a concerned call from [UKLEB]. I said they needed to liaise with you…”

The Editor sent an email to himself as an aide memoire at 13.41. It contained (in bullet points) his justification for publishing the Article in response to the UKLEB complaint:

“* public has a right to know

*

publishing these type of article (sic) lead to public discussion which can have an impact on the fight against issues like corruption, which as you know is a very serious problem in [the country]

*

My experience has been that if you publish it can lead others to supply information that might be material to the story or to the investigation

*

We got mixed messages – first told you’re looking forward to reading it/then told to wait. Then told a statement coming soon

*

Had four days to respond. Were aware of this story on Thursday. Why wasn’t [UKLEB] concern articulated more clearly before we published?”

The day after the Article was published, the Press Officer emailed the Editor, the

Ms Shapiro contacted the Press Officer to try and arrange for them to speak about her concerns. Perhaps optimistically, she sought to characterise what had happened as a “breakdown in communications” between the Defendant and UKLEB. The two did speak three days after the email exchange. Ms Shapiro sent an email summarising their call later that same day. Ms Shapiro expressed “regret” that UKLEB felt that it had been afforded an inadequate opportunity to articulate its concerns prior to publication of the Article. She acknowledged that UKLEB had requested information about what the Defendant intended to publish and an opportunity to provide the Defendant with details of its concerns regarding publication. “The response never came, so we published the story”. Ms Shapiro concluded her email: “I am hopeful we can both chalk this up to experience and move on productively…”

It appears that the Press Officer did not respond to that email and UKLEB took no further steps in relation to the Article.

The Claimant’s immediate response was to object to the publication of information from the LoR in the Article by letter to UKLEB the day after the publication of the Article. He had previously complained to UKLEB about what he regarded as the leak of information by UKLEB about his interview to the Defendant, that led to the Autumn Article, and demanded that UKLEB carry out an inquiry into this apparent further leak. The UKLEB’s response was brief. In a letter the following day, UKLEB denied that it had been the source of the information relating to the Claimant’s interview with UKLEB or that it had provided the Defendant with a copy of the LoR. It sought to reassure the Claimant that UKLEB would take all reasonable steps to protect the confidentiality of its investigation, but beyond that it refused to provide any details of any inquiry into the alleged leak of information. In subsequent correspondence, the Claimant asked whether UKLEB was considering making an application for an injunction against the Defendant in relation to the publication of information from the LoR and, if not, whether UKLEB would support such an application by the Claimant. UKLEB declined this invitation in a single sentence in a letter sent four days after the publication of the Article: “It is a matter for your client as to the remedies he may seek against the Press.”

I do not regard the fact that UKLEB decided not to take any formal steps against the Defendant as detracting from UKLEB’s concern that the breach of confidentiality was “serious”. Even if UKLEB had the appetite for litigation against the Defendant (and a willingness to spend its limited resources on legal proceedings), the reality was that the Article had already been published. In practical terms, the damage to the confidentiality of the LoR had been done; in legal terms, given the publication, UKLEB may well have been pessimistic at the prospects of a Court granting an injunction based on breach of confidence.

A letter of complaint was sent to the Defendant by the Claimant’s solicitors nine days after the Article was published. It complained that publication of the Article was a misuse of the Claimant’s private information and/or a breach of confidence.

In its letter of response, the refused to remove the Article from its website or to provide any undertaking regarding further publication. In respect of the claim for breach of confidence, it denied that the Claimant had standing to pursue such a claim as the allegedly confidential information was not owned by the Claimant; in respect of the claim for misuse of private information (and breach of confidence), that the Claimant’s rights were outweighed by the Article 10 rights of the Defendant, in particular the contention that it was in the public interest to reveal that the Claimant was under investigation by UKLEB; and finally, in respect of the data protection claim, it contended that publication was protected by the journalistic exemption under s.32 Data Protection Act 1998.

In light of the refusal to take down the Article or to provide undertakings regarding further publication, the Claimant applied, unsuccessfully, for an interim injunction. In most cases, it would not be necessary to go into the background or detail of such an application at trial; a paragraph summarising the decision would usually be sufficient. In this case, however, I am going to have to deal in some detail with the application for the injunction because of what I am satisfied was a serious failure of candour in the evidence the Defendant put before the Court at the injunction application and, thereafter, a prolonged failure to inform the Court (or the Claimant) subsequently that material statements of fact, upon which the Court had relied at the interim injunction stage, were not correct.

The injunction application was issued by the Claimant two days after receipt of the Defendant’s letter of response, before the Claim Form had been issued. It was supported by a witness statement from Mr Byrne. The Defendant filed a witness statement from the Journalist (“the Journalist’s First Statement”). The application came before Andrew Baker J on 9 January 2017. The Judge adjourned the application to be heard on 2 February 2017. He made a number of ancillary orders, including granting the Claimant permission to issue the Claim Form identifying him as “ZXC”.

The application duly came before Garnham J on 2 February 2017. In the interim, the Claimant had issued the Claim Form and served Particulars of Claim. In summary, the Claimant was seeking an order requiring the Defendant to remove the information relating to him from the Article on its website (save for certain identified information). The evidence remained as it was at the hearing on 9 January 2017. I have been provided with a transcript of the hearing. I have read the full transcript and been referred to particular parts of it.

There are two matters of concern: first, the impression the Court received from the evidence as to the position of UKLEB as to publication of the Article and, closely

The attitude of UKLEB to the publication of the Article was a matter that assumed importance at the hearing. The Judge knew that UKLEB had refused to support the Claimant’s application – and Mr Millar QC on behalf of the Defendant placed express reliance on this fact – but beyond that, the evidence of the Defendant was silent to the position adopted by UKLEB in relation to the publication of the Article.

The Judge handed down two judgments on 23 February 2017 – one public and one private – explaining his reasons for refusing the Claimant’s application for an injunction. Necessarily, parts of the private judgment had to be redacted, and parts of it amended, to produce a judgment that could be published without disclosing the information that the Claimant was seeking to protect or identifying him. My references to Garnham J’s judgment are to the private judgment (with necessary redaction or changes).

The Judge rejected the submission of the Defendant that a person cannot have a reasonable expectation of privacy in the information that he is being investigated by the police or other state law enforcement agency carrying out its public function. Whether there was a reasonable expectation of privacy in any particular case was a fact-sensitive exercise [40]. The Judge held that he was satisfied that the Claimant was likely to establish at trial that he had a legitimate expectation of privacy in the contents of the LoR [41]-[45], and identified factors that tended to reduce the weight to be attached to this side of the balancing process [50]-[56].

However, the Judge concluded that, on the evidence before him, it was likely that the Claimant’s privacy rights would be found to be outweighed by the Article 10 rights of the Defendant, which the Judge was satisfied were “substantial” ([57]). The Judge identified three reasons why he had reached this conclusion. First, the Article was “a serious piece of journalism about a serious topic; [a UKLEB] investigation into offences of bribery, fraud and corruption involving huge sums of money” and that the publicity produced by the Article might encourage other witnesses to come forward [58].

The second reason was [59]:

“… the article here prompted no adverse reaction from the investigators concerned. It appears that [UKLEB] had no fears that the reporting was damaging the investigation. Had this application been made, or supported, by [UKLEB], the outcome may have been very different”.

The third reason was that the decision whether to include the Claimant’s name was a legitimate journalistic decision with which the Court should be slow to interfere [60].

The Judge considered that the weight to be attached to these factors was to be reduced “somewhat” by two matters [61]: first, the Defendant had made “highly confidential information contained in a State to State communication” publicly available and that

“the public interest in preserving the confidentiality of Letters of Request is very real”; and second, the Article was not whistleblowing journalism; it related solely to the progress of the UKLEB investigation.

The Judge’s conclusion in [59] was made in ignorance of the clear protests of UKLEB both before and after publication of the Article (see particularly [31] and [34] and [64] above). I am quite satisfied that Mr Millar QC was not aware of this evidence at the hearing on 2 February 2017. He would not have made the submissions he did, if he had been. The position of staff of the Defendant is different. The Journalist did not apparently attend the injunction application on 2 February 2017, and his evidence, at trial, was that he did not recall seeing the judgment either in draft or after it was handed down. When asked by Mr Owen QC to consider paragraph [59] of Garnham J’s judgment, the Journalist accepted that the first sentence was not accurate. To his knowledge, the Article had prompted adverse reaction from UKLEB both before and after publication. He considered that the second sentence only referred to UKLEB’s reaction after publication of the Article, but accepted that, in that respect, it was also inaccurate.

In his First Witness Statement, the Journalist had not mentioned the protestations the Defendant had received from UKLEB. This is very surprising. Indeed, in paragraph 19, the Journalist said this:

“Prior to publishing [the Article], Bloomberg sought comment from [the Claimant]… [UKLEB] and the [foreign] government. In the event, none of them provided any comment, save for [name]’s representatives, who chose not to comment on the on-going investigation.”

The statement that UKLEB had not provided any comment was false. In his evidence, the Journalist was questioned why the Article stated (paragraph 4) that UKLEB had “declined to comment”. The Journalist drew a distinction between comments made ‘on-the-record’ and information provided to journalists on an ‘off-the-record’ basis. UKLEB, he said, had refused to comment ‘on-the-record’ and that this position was reflected in the Article. The communications from UKLEB protesting about publication were, he claimed, all ‘off-the-record’. There is no indication of that in any of the emails themselves, but the Journalist (and the Editor) said that they believed that all communications with UKLEB were ‘off-the-record’ unless UKLEB specifically indicated that a comment was ‘on-the-record’.

The distinction between ‘on-’ and ‘off-the-record’ communications with journalists is familiar (if occasionally misunderstood by those who are party to them), but what the Journalist said in paragraph 19 was said in a witness statement for the Court. If it was meant to convey the meaning that UKLEB had provided no comment for publication, it should have said so clearly. But even if this was the intended meaning, the statement was misleading by omission. I cannot (and do not need to) reach any conclusion whether this was done deliberately, but this is likely to be one of the parts of the evidence that misled Garnham J to believe that UKLEB had no concerns about the publication of the Article.

I do not know who (if anyone) at the Defendant considered Garnham J’s judgment (whether in draft or following hand-down), but almost everyone who was involved in the publication of the Article on behalf of the Defendant knew that UKLEB was unhappy (to say the least) about the publication of the Article and had clearly said so. Simply from the email traffic, it is clear that this was known (in ascending order of seniority) at least by HYX, the Journalist, the Editor, Mr Sguazzin and Ms Shapiro. I do not know whether any of them read the judgment, but if it is really the position that no-one who was familiar with the case read it, then that shows a worrying disconnect between those at the Defendant capable of giving meaningful instructions and those conducting the litigation on its behalf.

But matters do not rest there. When the solicitors instructed by the Defendant were finally provided with the emails that showed the true position about UKLEB’s concerns, it apparently occurred to none of them that it was important that both the Court and the Claimant were informed that an important factual finding in the judgment on the interim injunction application had been incorrect.

A further point of concern arises from the Journalist’s reference to the LoR in his First Witness Statement. In paragraph 10, the Journalist stated:

“The [Article] was based on the contents of [the LoR] that requested support from the [foreign] government relating to [UKLEB’s] investigation of the acquisition of [assets] by X Ltd… I was shown the [LoR] on [date]”.

No copy of the LoR was exhibited to the Witness Statement and no indication was given that the Journalist had actually been provided with a copy of the LoR not just “shown” it. The Claimant, and his lawyers, remained in ignorance of this important fact until July 2018, when the LoR was finally disclosed to them by the Defendant. The chronology is as follows:

The Journalist was cross-examined about the belated disclosure of the LoR by the Defendant in July 2018 whereas the Journalist had been given (and retained) a copy of the LoR prior to publication of the Article (see [18] above). Cross-examined about his

The Journalist’s evidence on this point was unconvincing and is difficult to understand. Initially, when I read the Journalist’s witness statement before the trial, I had thought that the reason that he had used the word “shown” in the First Witness Statement was an effort to protect his source. If that had been the explanation, it would still not have been acceptable, but at least it would have been understandable. But that was not the explanation that the Journalist gave in his evidence at trial. I reject the suggestion that “shown” was used in the First Witness Statement simply because it was the word used in the Article. That is not credible. The decision on what words to use in a witness statement is wholly different from the choice of words for publication in articles.

But matters do not rest there. The Journalist gave evidence on the second day of the trial. He was in the middle of his evidence when the court adjourned for lunch that day. When the court reconvened at 2pm, and before the Journalist recommenced his evidence, with the agreement of Mr Owen QC, Mr Millar QC read a statement on the basis of instructions he had received from the Defendant. Expressly on the basis that the Defendant did not waive privilege, it included the following:

“The legal work on the [First] Witness Statement… was mainly undertaken by

… [an Associate Solicitor] of Olswang LLP... under the supervision of Dan Tench, the partner. Mr Tench has no clear recollection of what the state of knowledge was in respect of whether [the Journalist] did or did not retain a copy of the LoR, and a quick review of the contemporaneous emails undertaken this morning does not assist. However, he considers it extremely unlikely that he or [the Associate] were aware of this…

Mr Tench believes that if he had known that [the Journalist] retained a copy of the LoR, that the witness statement was going to state simply that he was shown it, that is something that he would, at the very least have raised with… leading counsel. [Mr Tench] can recall a detailed discussion about the form of the witness statement, but there was no reference to this sentence or to this issue. Mr Tench believes that when he was informed in and around [Month] 2017 … that [the Journalist] did have a copy of the LoR, this was the first he knew of it…

[The Journalist], accordingly and as far as we can discern, the position appears to be simply that the wording of the article in respect of the LoR, i.e. the use of the word ‘shown’ was adopted in the witness statement without any further interrogation…”

Nothing more was said on the topic and the Journalist completed his evidence.

Overnight on 29 November 2018, Mr Tench sent me a letter (copied to the Claimant’s solicitors) concerning the issue of the Journalist’s First Witness Statement.

“As you will recall yesterday at court my client’s counsel… read out a statement concerning the Letter of Request…

In order to assist the Court, I prepared that statement very quickly over the luncheon adjournment stating as best I could my recollection of the events in question with the assistance of the limited review of material we had undertaken on our computers in court during the morning session. I have now had a further opportunity to reflect on that statement and to review some more of the contemporaneous material. Now that I have more time, I would like to make the corrections below.

Firstly, I stated in the statement that I considered ‘it extremely unlikely that [I] or [the Associate] were aware of this [the Journalist retaining a copy of the letter]’. Having had a chance to review some further material, I have not come across anything which definitively demonstrates that either I or [the Associate] knew. However, there is some material which could support the view that [the Associate] may have known, and I believe in hindsight it was in fact unwise for me to have speculated as to her state of knowledge. As regards myself, I can now say only that I think it is unlikely (rather than ‘extremely unlikely’) that I

knew…”

Mr Tench apologised to the Court for the inaccuracy of the statement that had been read to the Court on 28 November 2018.

It seemed to me to be unsatisfactory, particularly in light of the need to correct the statement that had been read to the Court, for the matter to be left on the basis of the statement read to the Court and the letter of correction. I therefore directed that a witness statement should be filed by Mr Tench confirming what the Court had been told on instructions and in the letter, but also setting out clearly (1) when the Defendant’s solicitors first became aware or suspected that the Journalist had a copy of the LoR; (2) the basis (without waiving privilege) for the statement that there was “some material which could support the view that [the Associate] may have known” that the Journalist had a copy of the LoR; and (3) the date on which the material suggested that the Associate may have known this. I also directed that it should identify when the Defendant’s solicitors first became aware of the emails from UKLEB expressing concern about publication of the LoR, as this was also material to the issue of what the Court was told at the interim injunction application.

In the witness statement he filed pursuant to that direction, Mr Tench provided an overall summary:

“On [date], [the Associate] met with [the Journalist] and took notes. The notes stated that he ‘received’ the LoR. [The Associate] prepared an initial draft of the statement, which made no reference to [the Journalist] receiving or being shown the LoR, merely that the Article was based on the LoR. I reviewed that briefly on the same or the following day. A version was then provided to [the Journalist] in similar form.

[The Journalist] did not provide any comments on that draft. I returned to the office a few days later, and I believe that I undertook a more detailed review of the draft witness statement [two days after my return]… A hearing was scheduled for Monday, 9 January 2017. That meant that the finalisation of the witness statement was urgent.

I believe that one of the things which arose out of my review is that I sought more information about the LoR. A version of the statement was provided to [the Journalist] on the evening of [my review] asking for information about when he received it.

[The following morning], at 10.51, we received a draft of this statement with his amendments. This included deleting the question about receipt and replacing it with the wording “I was shown the [UKLEB] letter on [date].”

Mr Tench’s statement also contained the following specific details:

Mr Tench concluded this section of his statement by stating:

“… I had and have no suspicion that [the Journalist] was seeking to mislead us or the Court. He was repeating the wording he had used in the Article as published and there was no reason for him to understand that there may be any relevance of him retaining a copy of the LoR.”

As to the balance of the matters that Mr Tench was required to cover in his statement:

Neither party sought to reopen the evidence or to recall the Journalist and Mr Owen QC did not seek to cross-examine Mr Tench on his statement. Both parties have, however, provided written submissions on this further evidence and the conclusions each party has invited the Court to draw from it.

In my judgment, the evidence shows a lack of rigour by the Defendant’s solicitors. The Journalist’s changes to his statement should have been recognised as potentially having been made by him to protect his source, but the wording he had suggested for his witness statement was misleading. The Journalist had told the Associate, in the meeting, that he had a copy of the LoR. Mr Tench had specifically asked the Journalist to confirm when he had received it. The capacity of the word “shown” (inserted by the Journalist) to mislead should have been detected by Mr Tench (or the Associate) and corrected so as not to mislead.

Of more consequence is the effect this has on the Journalist’s evidence. In light of the fact that Mr Tench had asked him, specifically, when he had received the LoR, the answer he gave in his evidence that the choice of the word “shown” was merely because that was the word that had been used in the Article, cannot be accepted. The Journalist declined to state in the witness statement that he had a copy of the LoR and used the word “shown” quite deliberately. It was chosen to obscure the fact that he did have a copy of the LoR. My conclusion is that the Journalist did so because he judged it appropriate or necessary to protect his source. That was a serious misjudgment by the Journalist. This was a witness statement for use in Court proceedings. Whatever the justification for using the word “shown” in the Article (and having seen earlier drafts, the word “given” was changed to “shown” prior to publication), the Court must be given a candid and clear account. The Court regularly deals with issues of source protection and will ensure that journalistic sources are protected appropriately. It is not for a journalist to deploy misleading evidence as a form of ‘self-help’, however noble the intention behind it.

The direct consequence of the misleading nature of the Journalist’s First Witness Statement was that the LoR was not available – as it should and would have been – to the Claimant’s solicitors and the Court at the interim injunction application. It was not provided to the Defendant’s solicitors until December 2017 and the Claimant’s solicitors did not get it until July 2018. Without the LoR, the Claimant’s solicitors were deprived of the ability to demonstrate, from the express terms of the LoR, the harm that UKLEB itself judged risked being caused by a failure to observe the strict requirements of confidentiality that were imposed.

That leads to the second failure of candour at the interim injunction application: the failure to disclose the approach of UKLEB to publication of information from the LoR. Whatever the extent of the duty of a defendant in terms of its responsibility at an inter partes hearing to ensure that the Court is provided with evidence that has a potential bearing on the issues, one thing is quite clear; a party must not permit the Court to be misled.

From the moment that any member of the Defendant’s staff who was familiar with the stance taken by UKLEB became aware that Garnham J had relied upon the fact that UKLEB had not complained about the publication of the Article (see [79] above), then s/he knew that this factual premise was incorrect, and the Court had been (perhaps unintentionally) misled. At that stage, an obligation arose to correct the misapprehension.

In terms of specific duties, the Defendant’s solicitors, at least, had a duty to act as soon as they became aware that Garnham J had been misled as to material facts at the interim injunction application.

My conclusions as to the interim injunction application are as follows:

The Claimant’s claim is that he had a reasonable expectation of privacy in the following information which he contends was published in the Article

In response, the Defendant (a) denies that the Claimant had a reasonable expectation of privacy in the Information or, in the alternative, (b) any privacy interests that the Claimant can demonstrate are outweighed by the Defendant’s Article 10 rights.

In relation to expectation of privacy, the Defendant contends:

As to public interest/Article 10, the Defendant contends:

There is a large degree of agreement as to the legal principles to be applied:

Mr Owen QC submits that the Claimant’s privacy rights are reinforced by the highly confidential nature of the LoR (see the discussion in Abacha, [22] above). He relies upon several statements from decisions of the Court of Appeal as to the public interest in the observance and enforcement of duties of confidentiality:

In addition, I would note also what was said by Sharp LJ in Mionis -v- Democratic Press SA [2018] QB 662 [71]:

“… [T]he underlying point in relation to confidence, as the passage referred to in the judgment of Bingham LJ in Attorney General -v- Guardian Newspapers Ltd (No.2) [1990] 1 AC 109, 215 [“Spycatcher”] makes clear, is that:

‘the duty of confidence does not depend on any contract, express or implied, between the parties. If it did, it would follow on ordinary principles that strangers to the contract would not be bound. But the duty ‘depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it’: Seager -v- Copydex Ltd [1967] 1 WLR 923, 931 per Lord Denning MR. ‘The jurisdiction is based, not so much on property or contract, but rather on the duty to be of good faith’: Fraser -v- Evans [1969] 1 QB 349, 361 per Lord Denning MR’”.

Mr Millar QC contends that any confidentiality that attached to the LoR is not determinative of the issue of whether the Claimant has a reasonable expectation of privacy in the Information: Axon -v- Ministry of Defence [2016] EMLR 20 [64(k)]. I accept that it is not determinative, but that was not the point that was being addressed in Axon. Nicol J found that “the security markings [on the documents] do not… estop the Ministry of Defence from arguing that the Claimant did not in fact have a reasonable expectation of privacy in the information in which he relies”. Here the Article was not making factual allegations about the Claimant’s conduct (as to which, the fact that they had been set out in a confidential document would not make them confidential/private); it was reporting UKLEB’s assessment of the evidence they had obtained and their suspicions, based on that evidence, that the Claimant may have committed a criminal offence.

Mr Millar QC argues that if the reporting complained of relates wholly and exclusively to the Claimant’s conduct in public roles, then Article 8 is not engaged: Yeo -v- Times Newspapers Limited [2017] EMLR 1 [147]. He contends that the ECtHR has clearly recognised that businessmen actively involved in the affairs of large public companies are not private individuals and that they “inevitably and knowingly lay themselves open to close scrutiny of their acts”: Steel -v- UK [2005] EMLR 15 [94].

In response, Mr Owen QC submits that the sphere of private life under Article 8 extends to activities relating to one’s professional and business life. These activities can, and often do, also relate to the sense of a person’s personal fulfilment. It also covers activities involving the interaction between the State and the individual which, he submits, are analogous to the current situation: Peck -v- UK [2003] EMLR 15; R (C) -v- Commissioner of Police of the Metropolis [2012] 1 WLR 3007; R (Wood) -v- Commissioner of Police of the Metropolis [2010] 1 WLR 123 and particularly PG -v- UK (2008) 46 EHRR 51 [56]–[57].

Mr Millar QC also submits that the following legal principles also have a bearing on the case:

The principal issue of contention between the parties is whether a person can have a reasonable expectation of privacy in the fact (and details) of a police investigation concerning him/her.

Mr Owen QC argues, principally on the basis of Richard -v- BBC [2018] 3 WLR 1715; [2018] EMLR 26, that the law has now recognised that, as a matter of general principle, a suspect does have a reasonable expectation of privacy in relation to a

There exists now a body of case-law in which this question has been addressed: Hannon -v- News Group Newspapers Ltd [2015] EMLR 1; PNM -v- Times Newspapers Limited [2014] EMLR 30 (CA); ERY -v- Associated Newspapers Limited [2017] EMLR 9; ZXC -v- Bloomberg LP [2017] EMLR 21; Richard -v- BBC; and Khan -v- Bar Standards Board [2018] EWHC 2184 (Admin) [47]. From these cases, it is possible now to say that, in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge.

In Richard -v- BBC, Mann J concluded:

Several of the authorities have been substantially influenced by the practice and policy of police forces in the UK regarding the release of information regarding criminal investigations, and in particular the naming of suspects prior to charge. The College of Policing has adopted a policy that suspects should not usually be named prior to charge. In its Guidance on Relationships with the Media (2013), paragraph 3.5.2 provided:

“… save in clearly identified circumstances, or where legal restrictions apply, the names or identifying details of those who are arrested or suspected of crime should not be released by police forces to the press or public. Such circumstances include a threat to life, the prevention or detection of crime or a matter of public interest and confidence…”

The revised guidance on Media Relations, issued by the College of Policing in May 2017, now contains the following:

One of the reasons why the reasonable person would objectively consider that the suspect had a reasonable expectation of privacy is the existence of the policy of police forces not to name a suspect prior to charge. In PNM, in the Court of Appeal, Sharp LJ stated that there was “a growing recognition that as a matter of public policy the identity of those arrested or suspected of crime should not be released to the public save in exceptional and clearly defined circumstances”. The justification for this policy, as identified in the College of Policing guidance, was that naming suspects carried “a risk of unfair damage to the reputations of those persons, particularly if they are never charged”. But there is also a wider public interest in maintaining the confidentiality of police investigations so as to ensure their integrity and effectiveness.

Nevertheless, an expectation of privacy in arrest/police investigation is not invariable. Whether it arises in any particular case will always depend upon the individual facts of that case. For example, if the suspect’s name were to be released by the police – for legitimate policing reasons – then s/he may well find it difficult to establish that s/he had a reasonable expectation of privacy in that information. Equally, an armed bank-robber who held hostage a number of customers and employees in a televised 3-day siege, could hardly claim a reasonable expectation of privacy when s/he surrendered and was arrested.

In my judgment, the Claimant does have a reasonable expectation in the Information (defined in [106] above). I am satisfied that a reasonable person of ordinary sensibilities, placed in the same position of the Claimant, would consider that he had a reasonable expectation of privacy in the Information. My reasons for this conclusion are as follows.

I accept, without hesitation, that the issue of corruption in the [foreign country] and possible involvement in that corruption by X Ltd and its employees/officers is a matter of high public interest (not least for many of the reasons given by the Defendant – see [109] above). But this significant public interest has only an indirect bearing in this case. As Garnham J found at the interim injunction application, the Article was not presenting the fruits of an investigation by the Defendant into this alleged corruption. The Article reported some of the contents of the LoR, presented with other background material to place the contents of the LoR in context for general readers. The news value in the Article was the revelation of what and who were the targets of the UKLEB investigation and UKLEB’s suspicions based on evidence it had gathered.

When considering the public interest/Article 10, the assessment is of the strength of the justification for publishing the Information, derived from the LoR. What the Defendant must demonstrate is that there was a sufficient public interest in revealing information about UKLEB’s investigation drawn from the LoR to outweigh the reasonable expectation of privacy that I have found that the Claimant had in relation to this information.

I accept that UKLEB’s investigation into X Ltd was, itself, a matter of public interest. UKLEB is publicly-funded and charged with the investigation and prosecution of serious criminal offences. There is a clear public interest in the media following and reporting on developments in the UKLEB investigation. Discharging its role as ‘watchdog’, the media could legitimately be expected to highlight, for example, any perceived inadequacies in the investigation, undue delay or concern over the direction the investigation was taking. But the Article was making no such criticism of the UKLEB investigation. Information from the LoR was not published in the Article for this purpose.

In my judgment, when assessing whether there was a sufficient public interest to justify disclosure of the Information, the starting point is that, applying the clear principles from the authorities I have identified ([22], [111]-[113] above), there was a very clear public interest that the contents of the LoR should not be published and that the confidentiality of UKLEB’s investigations should be maintained. The confidential nature of the LoR (as apparent from its terms), and the circumstances in which it came into the possession of the Defendant, mean that the Defendant was bound generally to observe the confidentiality of the LoR. The fact that (a) none of the Defendant’s staff apparently appreciated the highly confidential nature of the LoR; and (b) the Claimant has not pursued (and on the Defendant’s case, cannot pursue) a claim for breach of confidence does not alter this fundamental position.

I recognise, of course, such confidentiality cannot be absolute. Interviews may have to be carried out of witnesses and possible suspects and, from those, the interviewees may gain an insight into the matters which are being investigated. Equally, there may be occasions when the public interest in maintaining confidentiality in the investigation might be outweighed by other considerations. If, for example, internal investigation documents were leaked to a journalist that suggested that the investigators had been subjected to improper political pressure not to pursue certain people or lines of inquiry, there could well be a strong public interest justifying publication notwithstanding the confidentiality. Necessarily, this is a highly factspecific assessment and would involve a careful assessment of the justification for, and proportionality of, the interference with the confidentiality balanced against interference the right of freedom of expression. Ultimately, the question is whether any fetter on freedom of expression is ‘necessary in a democratic society’: Prince of Wales -v- Associated Newspapers Limited [67].

Of course, I am not considering whether there was a sufficient public interest to outweigh the confidentiality of the LoR generally; only whether there was a sufficient

The matters relied upon by the Defendant as providing a countervailing justification for the breach of the Claimant’s privacy were identified in the Journalist’s evidence (see [53] above). In my judgment, they do not (individually or collectively) provide such a sufficient countervailing justification to outweigh the Claimant’s Article 8 rights.

Finally, applying the Re S ultimate balance, I must apply an intense focus to the comparative importance of the Claimant’s Article 8 rights that I have found are engaged and the Article 10 rights of the Defendant (and the public generally), consider the respective justifications for interfering with or restricting each right, and make an assessment of the proportionality of the respective interference.

I do not derive much assistance from the factors identified in Axel Springer. I am satisfied that the matters identified by the ECtHR are already accommodated in the domestic authorities, particularly Murray, which guide the Court as to the proper approach in misuse of private information cases. I have considered these above and in particular the factors identified in Murray ([125]).

For these reasons, I find that the Claimant’s claim for misuse of private information succeeds.

The Claimant has been consistent throughout this claim that the primary remedy he seeks is an injunction.

This is an unusual case. The interim injunction was refused on 22 February 2017. The Article has therefore been continuously available on the Defendant’s website

Mr Millar QC for the Defendant submits that the Court should refuse an injunction for the following reasons:

I disagree. There is no evidence that there has been any publication of these further matters. It is impossible to know what will happen in the future. Should there be subsequent publicity of those matters the Claimant will have to accept those consequences. But that does not lead to the conclusion that an injunction should not be granted. The issues are quite different.

It is also correct that any injunction the Court does grant would not prevent publication by the Defendant outside England & Wales. It is for the Defendant to decide, editorially and as an exercise of its undoubted rights of freedom of expression, whether to continue to publish the Information in other jurisdictions following this judgment. But even assuming that the Defendant decided to do so, this would be one factor to be balanced against other considerations.

PJS is clear authority that this Court should not simply refuse an injunction to a successful claimant on the grounds that, because the Court cannot stop publication everywhere in the world, it should not prevent it anywhere. The consequences to the

That was said in the context of an interim injunction pending trial. The position is a fortiori when the Court has found, after a trial, that the relevant publication should not be allowed.

After noting the important differences between actions for breach of confidence and misuse of private information in terms of what is sought to be protected by the grant of an injunction ([25]-[31]), Lord Mance approved Tugendhat J’s statement in Green Corns Ltd -v- Claverley Group Ltd [2005] EMLR 31 [78]-[79] that “the question [is] not whether information was generally accessible, but rather whether an injunction would serve a useful purpose” [26].

In my judgment, an injunction in this case does serve a useful purpose.

A further significant factor in favour of granting the Claimant an injunction in this case is my finding that, had Garnham J not been misled as to material facts and had he been provided with a copy of the LoR, it is likely that the Claimant would have been granted an interim injunction on 22 February 2017 (see [105] above). Had an interim injunction been granted, the force of Mr Millar QC’s submissions to the effect that an injunction after trial can serve no purpose would be largely, if not entirely, removed. It cannot be right that a Defendant, who avoided an interim injunction on further publication, after the Court was deprived of highly material facts, can then rely on that further publication to resist the grant of a final injunction.

For these reasons, I am satisfied that, in principle, the Claimant is entitled to an injunction. I will invite the parties’ submissions as to the appropriate terms of the injunction order.

In Richard -v- BBC, Mann J identified five factors that should be taken into account in assessing general damages for misuse of private information: [350].

Mr Millar QC takes issue with the submission that the Court can award the Claimant damages for damage to reputation as an element of the award in a misuse of private information case. He advances the following argument:

In my judgment there is some force in Mr Millar QC’s submissions, and care must be taken when assessing damages in misuse of private information cases.

It seems to me to follow from these principles that:

The tort of misuse of private information “focuses upon the protection of human autonomy and dignity — the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people”: Campbell -v- MGN Ltd [2004] 2 AC 457 [51]. Of course, “esteem” is often bound up with aspects of reputation. It might be better to use the phrase “damage to the standing of the claimant” rather than “reputation” when referring to this element of privacy damages. But whatever it is called, in a misuse of private information claim a

In this case, the Claimant made an express concession that the truth or falsity of the underlying information in the LoR is not a relevant issue. In my judgment, the consequence of that is, whilst he can legitimately rely upon the distress and embarrassment that he has felt as a result of the publication of the Information, he cannot be awarded any element of purely reputational damages.

The evidence on damages was not challenged by the Defendant.

I exclude from my assessment of damages evidence the fact that some of the Claimant’s bank accounts were closed after the Article was published. Arguably, this falls into the category of purely reputational damage, but I am not satisfied on the evidence that the action of the bank was caused by publication of the Article.

An assessment of damages for misuse of private information cannot be a scientific process. My assessment of the factors identified in [147] in this case is as follows:

Reflecting as best I can all of those factors, I consider the appropriate figure for damages is £25,000.