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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Barclays Bank Plc v Guardian News Media Ltd  EWHC 591 (QB) (19 March 2009)
Cite as:  EWHC 591 (QB)
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QUEEN'S BENCH DIVISION
2009 Folio 353
B e f o r e :
|BARCLAYS BANK PLC||Claimant|
|- and -|
|GUARDIAN NEWS AND MEDIA LTD.||Defendant|
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737
MR. H. TOMLINSON QC (instructed by Olswang) appeared on behalf of the Defendant.
Crown Copyright ©
MR. JUSTICE BLAKE:
"The documents are five approvals papers in a final form as submitted by the Structured Capital Markets Division to the SCM Approvals Committee, the earliest of which is dated February 2005, the latest of which is dated 12th October 2007; one draft approvals paper marked up for internal comments dating from October 2007; one set of minutes of the SCM Approvals Committee. The minutes do not relate to any of the approvals above and are dated 13th July 2006. The SCM Approvals Committee is BCSCM's designated approvals forum for approving transactions originated by structured capital markets. Its quorum includes representatives from group tax, bar cap compliance, regulatory finance, legal, market risk and credit risk as well as representatives on the business side. The approvals papers follow a prescribed format which set out description of the transaction for which approval is sought, generally including details of the client; the economies of the transaction, including in some cases the amount of any provision against the risk that the transaction does not obtain the treatment expected; the treatment of the transaction for tax, accounting and regulatory purposes as well as analysis of the risk of the transaction covering credit and market risks, operational issues and tax risk. The approvals paper in question relates to transactions executed by members of the Barclays Group in 2005, 2006 and 2007 although in the case of one of the previous papers the transaction was not executed with the client specified in the paper. The documents were created in respect of transactions undertaken by BSCM and were intended for confidential internal distribution to necessary recipients only within Barclays with a view to the approval of each specific transaction. The documents are all confidential. In addition, all of the documents, other than the set of minutes, contain privileged material, in particular consisting of the advice obtained from external law firms as to the tax treatment of the transactions under consideration. After each of the transactions was executed, Barclays voluntarily disclosed the relevant papers, including the documents, together with underlying legal documentation to HMRC [Her Majesty's Revenue and Customs]. Those communications with HMRC were confidential and made on the basis that the underlying confidence in any documents sent to HMRC was not being waived. The purpose of disclosing the documents was that HMRC could review the transaction and enter into discussion with Barclays to agree on the appropriate analysis of the transaction for tax purposes. The documents were released to HMRC in redacted form which removed the reference to the privileged material and certain other confidential items including the tax provisioning that Barclays was making in relation to the transaction. This material is extremely confidential and internal to Barclays Capital. It was clear to HMRC that this material was not being disclosed. The documents as published have not been redacted in any way so as to protect legally privileged material. The documents also contain sensitive client information and internal know-how of BSCM, both of which would materially harm our business if publicly made available."
"I considered these documents to be of the highest significance in the debate about tax avoidance. They revealed at first hand the process involved in structuring extremely complex and artificial tax avoidance vehicles, how lawyers and accountants work together to exploit loopholes in Government legislation and the degree to which they are sanctioned at the highest level within Barclays."
"Of course, the defendants' right to freedom of expression is an element in their democratic right to campaign for the abolition of all animal xenotransplantation or other experimentation. But they may continue to do that whether the injunction sought by Imutran is granted or not. The issue is whether they should be free to do so with Imutran's confidential and secret documents. Many of those documents are of a specialist and technical nature suitable for consideration by specialists in the field but not by the public generally. Given the provisos to the injunction sought there would be no restriction on the ability of the defendants to communicate the information to those specialists connected with the regulatory bodies denoted by Parliament as having special responsibility in the field."
"How is one to reconcile these approaches? The answer, it is suggested, is that the question is one of degree depending upon the particular case. The key determining factors are the type of the information and nature of the confidentiality interest and the nature of the likely audience for it. If the question relates to the disclosure of information to the general public then only quite widespread publication will result in a loss of confidentiality, the general public is not expected to spend its time searching specialist archives and statistical data so that even republication may well amount to breach of confidence. That is perhaps is especially true where the information is personally sensitive, engaging privacy interests. On the other hand, if information is really of interest to a specialised group of people such as foreign intelligence agencies or trade competitors who can be expected to pursue it vigorously even in obscure places, much less extensive publication will be enough to destroy confidentiality. The test being applied in each case is the same: is the information so generally accessible that in all the circumstances it can no longer be regarded as confidential? But the application of the test depends upon the particular circumstances of the case."