A leading media lawyer has received a judicial rap on the knuckles over his client’s behaviour during a high-profile privacy action. Granting an injunction protecting the identity of a businessman who was the subject of a corruption investigation, The Honourable Mr Justice Nicklin said a 'lack of rigour by the defendant's solicitors' had contributed to an earlier court hearing being misled.
Nicklin J was ruling in ZXC v Bloomberg LP, a claim for misuse of private information following Bloomberg News' publication of details of an investigation by a 'UK law enforcement body'. The judge ruled that the claimant, a US citizen based in the UK, was entitled to an injunction and damages of £25,000. The public judgment redacts details likely to identify the claimant, which are subject to ongoing reporting restrictions. These include the identities of the law enforcement body and the author of the disputed article.
The ruling is unusual because in 2017 the court refused to grant an interim injunction sought by the businessman, a decision hailed at the time as a victory for free expression. Nicklin J noted that, in most privacy cases, such a decision determines the fate of the entire claim. In this case however, the interim decision had been taken on the basis of what the judge described as a 'serious failure of candour' and a 'prolonged failure to inform the court (or the claimant) that material statements of fact upon which the court had relied... were not correct.'
Bloomberg's source for the article was a 15-page formal letter of request (LoR) sent by a law enforcement body to a foreign government. It set out details of criminal investigations into offences including corruption and fraud. Such letters are highly confidential and carry warnings to that effect. In line with normal journalistic practice to protect sources, Bloomberg's report claimed it had been 'shown' the letter rather than been given a copy. In what Nicklin J describes 'a serious misjudgment' Bloomberg and its legal team maintained this position during the interim injunction hearing. This meant that the LoR was not available to the claimant and the court.
A further 'failure of candour' at the interim stage was not to disclose that the law enforcement body had strongly objected to publication on the ground that its investigation might be prejudiced. Describing this position as 'very surprising', Nicklin J ruled that, had this information been available to the court, the interim injunction would have succeeded.
The judgment goes on to criticise Bloomberg's solicitors, CMS Cameron McKenna Nabarro Olswang LLP for not promptly informing the court that 'an important factual finding in the judgment on the interim injunction application had been incorrect'. The judgment reveals that Olswang partner Dan Tench apologised after the hearing for inaccuracies in a statement about whether he had known that the journalist had a copy of the LoR. Nicklin J said the evidence showed 'a lack of rigour' in ascertaining whether the journalist had misled the court.
The judgment devotes a page to the Solicitors Regulation Authority's code of conduct and in particular its provisions on duties to the court.
Overall, Nicklin J ruled that the letter of request should have been recognised as a highly confidential document. 'Public disclosure of this sort of information from an ongoing police investigation harms the public interest by risking jeopardising the investigation and causing reputational harm to suspects identified. It was up to the defendant to demonstrate that there was a sufficient public interest in revealing information about the investigation to outweigh the reasonable expectation of privacy.'
When assessing damages, Nicklin noted that the disputed article 'was not sensationalist; it was serious and measured' and thus would be regarded as credible.
CMS Cameron McKenna Nabarro Olswang said in a statement: 'We are disappointed by the criticisms of the firm but remain fully supportive of the team and will not be commenting further.'
Tim Owen QC and Sara Mansoori, instructed by Byrne and Partners LLP, appeared for the claimant; Gavin Millar QC and Clara Hamer, instructed by CMS Cameron McKenna Nabarro Olswang LLP, for the defendant.