PROTECTION OF COMMERCIALLY SENSITIVE INFORMATION IN RELATION TO ANCILLARY RELIEF PROCEEDINGS IN DIVORCE CASE WHETHER WHOLE JUDGMENT SHOULD BE ANONYMISED – LYKIARDOPULO V LYIKARDOPULO [2010] EWCA Civ 135

In divorce proceedings the wife of a Greek husband who had substantial interests in a Greek shipping business had accused the husband and his brother of fabricating documents to show that the husband had divested himself of his interests in the business.  The judge in financial ancillary proceedings had ordered that the judgment be anonymous. The Court of Appeal overruled the decision holding that the order was excessive and conflicted with principles of open justice – no real evidence that the family business would be damaged by the revelations and if any genuinely commercially sensitive information was raised any judgments could be redacted to protect that information.

BREACH OF CONFIDENCE – INTERIM INJUNCTION TO PREVENT REVEALING REAL IDENTITY OF TV CHARACTER – WHETHER DUTY OF CONFIDENCE HAD EXPIRED BECAUSE OF THIRD PARTY DISCLOSURES – BBC V HARPERCOLLINS [2010] EWHC 2424, Morgan J

C a racing driver performed the role of ‘Stig’ an anonymous driver in the highly successful BBC programme ‘Top Gear’ for over 12 series.  C had written an autobiography in which he revealed the fact he was ‘Stig’. C accepted that was subject to a duty of confidence but sought to argue that the duty had expired, particularly in light of the vast amount of third party speculation in the media. The judge refused to grant an interim injunction restraining the publication of the book. The question as to whether information had entered the public domain was a matter of fact and degree. There would be cases where even though the information had been published, the nature or availability of the publication might lead a court to conclude that the information was not so generally accessible as to have lost its confidential character (para.53). However, the press coverage had gone well beyond speculation as to the identity of S. The statements in the press that C was S would be understood by the public to be statements of fact and the number of newspapers which had stated that fact was such that it was generally accessible. For all practical purposes, anyone who would have had any interest in knowing the identity of S knew it. It was no longer confidential information and it was likely that any court would reach that conclusion at trial (para.56). With regard to the equitable duty of confidence, it was not appropriate to hold that the instant case was one where there was a residual or limited confidentiality in the information, which should be protected by the grant of an injunction (paras 58-61).

Regulation of Investigatory Powers Act 2000 – s65 – Human Rights Act 1998 – s7 – Article 10 ECHR 1950 – A v B [2008] EWHC 1512 (Admin) 4/7/08 - publication of book by member of Security services – refusal to allow book to be published as would breach life long duty of confidentiality to Crown in respect of certain of the contents – action for judicial review on grounds refusal was unreasonable and disproportionate and a breach of agent's freedom of expression under Article 10 ECHR 1950 – Whether court had jurisdiction or whether matter to be dealt with by Investigatory Powers Tribunal.

The RIPA 2000 is important legislation controlling the monitoring and interception of communications – space prevented its publication in the main work but there is a link to it in Legislation section.

A security agent was challenging the decision of the Government Director of Establishments to give consent for the publication of a book on the grounds that this would breach the duty of confidentiality owed by the agent under contract and the Official Secrets Act 1989. The agent sought to challenge the decision by way of judicial review on grounds that it was unreasonable and infringed his rights under Article 10 ECHR 1950 – the Crown responded by arguing the matter fell within the jurisdiction of the Investigatory Powers Tribunal (s65 RIPA 2000) and it was the tribunal required by s7 HRA 1998 to deal with the Article 10 issue. The Court ruled held that very clear words would be needed to oust the jurisdiction of the courts and there was no such clear language the court therefore had jurisdiction to hear the claim. In any event the matters here went beyond merely issues of surveillance, interception of communications and the use of material obtained, the use of covert services and de-encryption of electronic data – and was appropriate to be heard by a court rather than the specialist tribunal.

Regulation of Investigatory Powers Act 2000 ss 5(2),8(4), 15, 16 – Interception of Communications Act 1985 ss 1,2, 3(2), 6, 7, 8 10(3) – Articles 8 & 13 ECHR 1950 – Liberty v UK (Application No 58243/00) ECtHR, 1/7/08 – complaints about secret interception of civil liberty groups communications by UK Ministry of Defence – Breach of Article 8 ECHR 1950 – whether remedies provided by Interception of Communications Tribunal and Investigatory Powers Tribunal provided adequate remedies for unlawful or disproportionate conduct.

A number of civil liberty groups complained about secret interception by the UK Ministry of Defence of their external communications, i.e. those or sent or received outside the UK (in particular some 10,000 or so between Dublin and London in the 1990s) and that they were not given sufficient rights and remedies in relation to the operation of the monitoring system and any complaints about unlawful or improper activities as it existed under the interception regime then in place. In particular the limited review powers of the independent tribunals, the inability of the Special Commissioner to look at individual cases and the fact that the safeguard arrangements put in place by the Secretary of State were not published (they had been published in several other countries including Germany). The Court concluded that the concerns of the UK Government that disclosure of the arrangements would reveal important information about methods of interception used were overstated. In conclusion, the Court did not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it did not, as required by the Court's case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing, and destroying intercepted material. The interference with the applicants' rights under Article 8 was not, therefore, "in accordance with the law". The Court held that the finding of a violation of Article 8 was sufficient and no further financial compensation was necessary.

Malik v. Manchester Crown Court [2008] EWHC 1362 (Admin)

This case involved the judicial review of a decision by a court to grant a production order under Schedule 5 of the Terrorism Act 2000. M, a freelance journalist, was writing a book about the life and activities of H, who was a self-confessed former member of the Al-Qaeda terrorist network and was considered to have had some participation in a number of serious attacks on US targets. M was ordered to produce a substantial volume of materials and documentation, including a full list of his contacts. It was held that, for the purposes of the Act, for a production order to be valid, there must be reasonable grounds for believing that the material was likely to be of substantial value and that such terms should be given their ordinary meaning. Accordingly, “likely” should be construed as “probable”, while “substantial value” meant that the information derived from such documents must be more than minimal. While the essential grounds for the production order were considered to have been satisfied, the terms of the order were far too wide and could have led to the identification of sources other than H, which was deemed unacceptable.

Assistant Deputy Coroner for Inner West London v. Channel Four Television Corporation [2007] EWHC 2513

An issue for summons was made for certain documents against Channel Four in the inquest into the deaths of Diana, Princess of Wales and Dodi Fayed. In considering such an application for details about sources in a relatively rare request by a coroners’ court, it was considered that because such information was central to the investigation and would be revealed in the first instance only to the individual coroner – and released further only if it was necessary and proportionate to do so – it was justifiable for the confidentiality attached to the communications in question to be broken.

Contempt of Court Act 1981- s10 – European Convention on Human Article 10 – Financial Times v UK (Aplcn No 821/03) 15/12/09 – Disclosure of journalists sources – relevance of the motive and good faith of the source.

In an important case on journalists’ sources the European Court of Human Rights have concluded that the Court of Appeal in Interbrew SA v Financial Times [2002] 2 Ll Rep 229 were wrong to order the disclosure of a journalist’s source in relation to disclosure of information about a the possibility of a takeover bid by the Belgium brewery giant Interbrew of a South African brewery. There was a strong suspicion that the information leaked had been tampered with, leading to the possibility of market abuse by persons unknown taking advantage of the share movements in the prices of the two breweries resulting from the disclosure. Once again in a decisive manner the Court has emphasized the importance of protecting journalists’ sources and that a ‘convincing’ case needs to be made out for disclosure. Importantly they played down the fact that the source may have been acting in bad faith and that in any event the investigation of crime was for the state not as here a private party (see paragraphs 56-64 Judgment.

The Court stated @ para 63:
While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information, courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the multiple interests in play, the Court emphasises that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article.’

On the facts such compelling evidence had not been produced. This is an important victory for the media and should lead to a more liberal interpretation of s10 of the Contempt of Court Act 1981 in UK.

Regulation of Investigatory Powers Act 2000 – s65 – Human Rights Act s7 – European Convention on Human Rights Article 10 -  - R (on the application of A) v B [2009] UKSC 12 [2009] UKSC 12, [2010] 1 All ER 1149 – Whether action for judicial review could be brought before the Administrative Court in relation to a challenge of a refusal to allow the publication of the memoire of security officer.

Recent events involving extraordinary rendition and alleged torture of suspects and how much the UK intelligence services were involved or at least knew what was going on raises serious issues about accountability and exposure of wrongdoing by the security services in relation to their counter-terrorist activities. The autobiographies of past members can throw light on dark corners and of course the notorious allegations of David Shayley (alleged plot to kill Colonel Gadaffi of Libya) and Peter Wright in his ‘Spycatcher’ book have certainly provoked considerable public and media interest. However such autobiographies may involve the release of sensitive information and possibly jeopardize current operations. The Government has instituted an advance approval system by the Director of Establishments of the Security Services with an appeal to a specially constituted tribunal – the Investigatory Powers Tribunal – a rather shadowy and secretive body outside the court system proper. Section 65 of the Regulation of Investigatory Powers Act 2000 purported to exclude resort to the ‘courts proper’. The Supreme Court held that the Administrative Court did not have jurisdiction to hear a judicial review action. There was no breach of Human Rights legislation and in the special context of issues raised by publications of former security officers the system did not infringe the officer’s Article 10 ECHR rights.

Common law – Open Justice - Civil action involving information relating to national security, international relations, detection of crime and the public interest generally, whether special ‘closed material procedure’ could be used – Al Rawi & Others v Security Services & Others [2010] EWCA Civ 482

One of the products of the so-called ‘war on terror’ is the desire of the security services to keep as secret as possible evidence gathered in relation to tracking down terror and potential terror suspects – in effect to cloak the intelligence effort in as much secrecy as possible. In relation to certain procedures, such as the controversial control orders, a special ‘closed material procedure’ has been adopted – in essence this involves not disclosing the evidence to the party subject to the procedure but only to a special advocate appointed to represent the person’s interests but who would not take instructions from the subject of the procedure. In this case six former Guantanamo Bay detainees were bringing a variety of claims in relation to false imprisonment, trespass to the person, conspiracy to injure, torture, and negligence. At first instance Silber J held that the use of ‘closed material procedure’ could be used in relation to civil claims for damages. The Court of Appeal allowing the appeal ruled that the ‘closed material procedure’ should not be used in ‘ordinary’ civil claims as it would undermine one of the common law’s most fundamental principles – that each party and their lawyer must see and hear all the evidence and argument heard in court. CPR 39.2 permitted exceptions but these did not apply here. The overriding principle in the CPR was that cases be dealt with fairly and as far as possible with parties on equal footing. This did not however rule out the application of the public interest immunity certificate system in appropriate cases.