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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Fortescue Metals Group Ltd & Anor v Argus Media Ltd & Anor  EWHC 1304 (Ch) (22 May 2020)
Cite as:  EWHC 1304 (Ch)
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BUSINESS AND PROPERTY COURTS
BUSINESS LIST (CH)
London EC4A 1NL
B e f o r e :
| (1) FORTESCUE METALS GROUP LTD
(2) CHICHESTER METALS PTY LTD
- and –
|(1) ARGUS MEDIA LIMITED
(2) S&P GLOBAL INC.
Antony White QC and Kirsten Sjøvoll (instructed by Wiggin LLP) for the First Defendant
Andrew Caldecott QC and Greg Callus (instructed by Mischon de Reya LLP) for the Second Defendant
Hearing dates: 12, 13 May 2020
Crown Copyright ©
See Also:  EWHC 1333 (Ch)
Mr Justice Miles:
Principles concerning applications for restraint orders
"FREEDOM OF EXPRESSION
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—(i) the material has, or is about to, become available to the public; or(ii) it is, or would be, in the public interest for the material to be published;(b) any relevant privacy code."
"… There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood make the prospects of success "sufficiently favourable", the general approach should be that the courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court that he will probably ("more likely than not") succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights."
"Where there is a breach of confidence, the test is not simply whether the information is a matter of public interest, but rather whether in the circumstances it is in the public interest that the duty of confidence should be breached: see the Prince of Wales case at paragraph . In that case the Court of Appeal also said this:
"67. There is an important public interest in the observance of duties of confidence. Those who engage employees, or who enter into other relationships which carry with them a duty of confidence, ought to be able to be confident that they can disclose, without wider risk of publication, information that it is legitimate for them to wish to keep confidential. Before the Human Rights Act 1998 came into force the circumstances in which the public interest in publication overrode a duty of confidence were very limited. The issue was whether exceptional circumstances justified disregarding the confidentiality which would otherwise prevail. Today the test is different. It is whether a fetter of the right of freedom of expression is, in the particular circumstances, "necessary in a democratic society". It is a test of proportionality. But a significant element to be weighed in the balance is the importance in a democratic society of upholding duties of confidence that are created between individuals. It is not enough to justify publication that the information in question is a matter of public interest. To take an extreme example, the content of a budget speech is a matter of great public interest. But if a disloyal typist were to seek to sell a copy to a newspaper in advance of the delivery of the speech in Parliament, there can surely be no doubt that the newspaper would be in breach of duty if it purchased and published the speech."
Confidential information under English law
"In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself … must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
"I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word "notice" advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection."
"The first limiting principle (which is rather an expression of the scope of the duty) is highly relevant to this appeal. It is that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it. I shall revert to this limiting principle at a later stage.
The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia. There is no need for me to develop this point.
The third limiting principle is of far greater importance. It is that, although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.
Embraced within this limiting principle is, of course, the so called defence of iniquity. In origin, this principle was narrowly stated, on the basis that a man cannot be made "the confidant of a crime or a fraud": see Gartside v. Outram (1857) 26 L.J.Ch. 113, 114, per Sir William Page Wood V.-C. But it is now clear that the principle extends to matters of which disclosure is required in the public interest: see Beloff v. Pressdram Ltd.  1 All E.R. 241, 260, per Ungoed-Thomas J., and Lion Laboratories Ltd. v. Evans  Q.B. 526, 550, per Griffiths L.J."
"If one turns from the authorities and looks at the matter as a question of principle, I think (and I say this very tentatively, because the principle has not been argued out) that four elements may be discerned which may be of some assistance in identifying confidential information or trade secrets which the court will protect. I speak of such information or secrets only in an industrial or trade setting. First, I think that the information must be information the release of which the owner believes would be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e., that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner's belief under the two previous heads must be reasonable. Fourth, I think that the information must be judged in the light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information or trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection."
"In the case of private [viz. not governmental or public] confidences, the confider may have an interest in the information being kept confidential, regardless of whether disclosure would be positively harmful to it, for reasons which may be perfectly understandable (and which would be understood by any reasonable person in the position of the confidant). If so, for the reasons suggested by Lord Keith in the Spycatcher case, that should be sufficient to found a cause of action; and the question whether unauthorised disclosure in such circumstances is considered to involve "detriment" is an exercise in semantics. If on the other hand the confider has no substantial interest in the information being kept confidential, it would follow that the information would not possess the necessary quality of confidence to found an obligation of confidentiality."
Confidentiality: evidence and evaluation
"1. DEFINITIONS AND INTERPRETATION
(5) Confidential Information means any and all trade secret information, data, processes, apparatuses, specifications, drawings, reports, operations, inventions, patents, technology, knowhow, accounts, dealings, records, materials, plans statistics, finances or other documents or things whether written, electronic or oral and of whatever type or nature relating to the property assets liabilities finances dealings transactions or affairs of the Seller or Buyer as the case may be."
26.1 A Party may only disclose Confidential Information:
(1) To that Party's professional advisers;
(2) If required by law or by a recognised stock exchange on which the shares of that Party are listed;
(3) If necessary to perform that Party's obligations under this Agreement; or
(4) If the other Party consents to the disclosure.
26.2 In this clause, Confidential Information includes:
(1) Negotiations leading up to this Agreement; and
(2) Any term of this Agreement.
26.3 This clause survives termination of this Agreement."
"You may be aware that our confidential contract pricing and discount details for April 2020 were published by a certain PRA. We are taking steps to address this and we are reinforcing the measures we have put in place to ensure this does not happen again. In advance of notifying our customers of our May pricing we are writing to all our customers to remind them that it is essential that any information we provide you in relation to our contract pricing (which includes our May pricing and all future pricing) is confidential and must be kept confidential."
"Conveying prices or discounts to third parties is a breach of confidentiality and, where we have a contract with you, would also be in breach of your obligation of confidentiality under the express contract terms. Any unauthorised disclosure is likely to cause loss and damage to FMG, so please ensure that our prices and discounts are only passed to the relevant person(s) within your company/department and remind them as a recipient that they must not disseminate our prices or discounts to third parties."