Media – Confidential information

Abbey v Gilligan and another: Queen's Bench Division: 20 November 2012

SCL was a company incorporated in March 2005 whose principal activities were 'the provision of speakers, product endorsements and consultancy advice on sports-related activities.' In July 2005, CLG was incorporated. SCL was a subsidiary of CLG. CLG's principal activities were 'the exploitation of the intellectual property and image rights relating to Lord Coe and the provision of consultancy advice on sports related activities'. The claimant claimed to be 'a shareholder in and consultant to' CLG. In September 2007, the defendants published an article in The Evening Standard newspaper. The article referred to CLG and financial troubles it was experiencing. The article made reference to emails that had been obtained by the defendants on issues relating to CLG's business. The claimant had been the recipient of some of the emails referred to in the article, had sent some of those emails and he was referred to in the article in a number of places. The text of the article remained on the defendants' website until August 2011. The claimant brought proceedings against the defendants.

He contended that the defendants had been in breach of confidence or, alternatively, had misused private information on two bases: first, in respect of the obtaining by the defendants of all of the emails referred to in the article (and others which were not referred to); and, secondly, in respect of the publication of the email written by the claimant and quoted, in parts, within the article. The defendants relied on two principal defences: title to sue and public interest. In respect of title to sue they contended that the information was not subject to any duty of confidentiality owed to the claimant personally and that he had no reasonable expectation of privacy in respect of any of it. The claimant had suffered no loss or damage himself, and he could not claim damages on behalf of third parties. The claim would be dismissed.

The emails referred to in the article contained information relating to CLG, or to the affairs of persons who had invested in CLG, or were officers of CLG, or were providing advisory services to CLG. None of that information was personal to the claimant. Further, in sending and receiving the emails, the claimant had not been acting, or purporting to as, as principal. Accordingly, the defendants, who had had no prior relationship to the claimant, could not owe to him any duty or obligation of confidence in respect of those emails, or at any rate not a duty the breach of which would give rise to substantial damages. The claimant had no reasonable expectation of privacy in relation to any information which had not been personal to himself. In so far as title to sue was concerned, while the court accepted that the use of particular language might, in certain circumstances, have given rise to a reasonable expectation of privacy, in the instant case the facts did not raise the case above the threshold of seriousness which any claim should pass it if was to be upheld by a court (see [54], [55], [58], [59] of the judgment).

Accordingly, the claimant's claims relating to the emails, both in confidentiality and misuse of private information, failed at the first hurdle and the claim on obtaining the emails could not success as the claim on publishing the emails had not succeeded (see [60], [64] of the judgment). Fraser v Evans [1969] 1 All ER 8 considered; S (a child) (identification: restriction on publication), Re [2004] All ER (D) 402 (Oct) considered; Commissioner of Police of the Metropolis v Times Newspapers Ltd [2011] All ER (D) 209 (Oct) considered.

(2) Had it been necessary to decide the point, the court would have decided that the publication complained of was in the public interest and that the claim was an abuse of the process of the court. Further, nothing in the judgment should be taken as a finding or observation adverse to Lord Coe. He was not a party to the action and had not been represented in court (see [106], [185], [186] of the judgment). Per curiam: a journalist considering whether or not to publish information must, in many cases, have an opportunity to read the information to make that decision. It cannot be right that the court should in such cases too readily find that the obtaining or reading of the information is a breach of confidence (see [63] of the judgment).

William Bennett and Chloe Strong (instructed by PSB Law LLP) for the claimant; Desmond Browne QC and Adam Speker (instructed by RPC) for the defendants.