InView Autumn/Winter 2015

8 InView | An independent eye on insurance
Regina (Ingenious Media Holdings plc and another) v Revenue and
Customs Commissioners [2015] 1 WLR 3183 related to an off-therecord
briefing which the permanent secretary for tax at HMRC had
given to two Times journalists, during which he had made a number
of unflattering remarks about the claimant company (a promoter
of film finance schemes) and its founder CEO. The claimants’
application for judicial review of the permanent secretary’s decision
to disclose information relating to them was dismissed both at first
instance and on appeal. Much of Sir Robin Jacob’s judgment in the
Court of Appeal related to particular provisions in the Commissioners
for Revenue and Customs Act 2005, but his conclusions on the CEO’s
Article 8 claim are of more general interest: since the particular
offending remarks had not been published in the Times, HMRC’s
disclosure to the journalists had been to such a limited class that it
involved no sufficient direct or grave interference with the claimants’
private life interests as to infringe the requirement of the right of
respect for private life.
In Vidal-Hall v Google Inc [2015] C.P. Rep. 28 the claimants sued
Google (a Delaware corporation) over its collection of information
about their internet browsing habits; they brought claims both for
misuse of private information and for contravention of their rights
under the Data Protection Act 1998. The Court of Appeal addressed
two separate issues. First the Court held that (contrary to dicta
in some earlier cases) a claim for misuse of private information
is separate and distinct from the traditional equitable action for
breach of confidence, and is a tort. Secondly, the Court considered
section 13(2) of the Data Protection Act 1998, which purports to allow
compensation under the DPA for distress only to those claimants
who can also demonstrate some pecuniary damage. The Court held
that section 13(2) was in this respect inconsistent with the rights
granted by Article 23 of the relevant European data protection
Directive (95/46), and accordingly disapplied it.
Equity
Judicial development of the traditional equitable principles of
confidentiality has taken more of a back seat during 2015 thus far,
but Warwickshire County Council v Matalia (a decision of Newey J,
sitting in the Chancery Division in Birmingham District Registry, on
27 February 2015) was an interesting addition to the jurisprudence
on the vexed question as to when information no longer qualifies
as confidential because it has entered the public domain. Newey J
granted an injunction to restrain the defendant from publishing on
the internet some questions which had been set in an 11-plus test,
at a time when some of the candidates had still not taken the test;
he held that the contents of the test had not become so generally
accessible that it could no longer be regarded as confidential. An
appeal is due to be heard later this year.
Procedure
Finally, issues of confidentiality often arise in the context of
procedural disputes. One frequently recurring phenomenon has
been the judge-appointed “confidentiality club” to whom the
disclosure of sensitive documents or information may be restricted.
Recent decisions that demonstrate the very wide range of
circumstances in which the possibility of confidentiality clubs
may surface include Libyan Investment Authority v Societe Generale
SA [2015] EWHC 530 (QB), Al Fawwaz v Secretary of State for the
Home Department [2015] EWHC 469 (Admin), Secretary of State for
Health v Servier Laboratories Ltd [2015] 4 CMLR 20, TalkTalk Telecom
Group plc v British Telecommunications plc [2015] CAT 13, and
Warner-Lambert Co LLC v Actavis Group [2015] EWHC 2123 (Pat).
As these and other cases show, confidentiality clubs, even if
convenient in practical terms, can often give rise to difficult
questions of principle – especially as the relevant litigation
progresses towards a final hearing.
In re JR38 [2015] 3 WLR 155 was a decision of the Supreme Court,
on appeal from the Divisional Court (QB) in Northern Ireland. The
Police Service of Northern Ireland had published photographs of
people who were present at riots in Derry, with a view to identifying
them. One of the subjects was only 14 years old at the time and
sought a judicial review of the decision to publish his photograph.
The Supreme Court unanimously dismissed his claim, but their
Lordships disagreed as to the legal test to be applied. The majority
held that the touchstone for the engagement of Article 8 was whether
the applicant, on the facts, had a reasonable expectation of privacy
in relation to the subject matter of his complaint. (Lords Kerr and
Wilson, dissenting, pointed to the effect that the publication of the
photographs could have on the life of a child and considered that the
test of “reasonable expectation of privacy” should not be regarded
as an inflexible determinative test.)
One frequently recurring phenomenon
has been the judge-appointed
“confidentiality club” to whom the
disclosure of sensitive documents or
information may be restricted.
Charles Phipps, Barrister
4 New Square Chambers
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