Confidential information - Injunction against disclosure of information - Interim injunction

BUQ v HRE: Queen's Bench Division (Mr Justice Tugendhat): 29 March 2012

The claimant was the managing director of a group of companies (the group). The defendant was the chief executive of one of the group's subsidiary companies and he reported to the claimant. In addition to being an employee, the defendant held a valuable shareholding in the group company. The claimant was notified of allegations of wrongdoing concerning the defendant. The claimant met with the defendant and during that meeting the defendant said that he needed to leave his job. The defendant suggested that he should be paid a severance package to include the price of his shares.

The claimant asserted that a figure was requested that grossly inflated the value of the defendant's shares. The defendant maintained that he had requested a figure which was half that alleged by the claimant. The following day, the defendant sent an email to the claimant threatening to disclose to the public certain allegations, including the fact that the claimant and his wife had been sexually abusing the defendant. On 13 March 2012, an application was granted on short notice for an injunction to run until 16 March prohibiting the disclosure of information of a sexual nature concerning the claimant and his wife (the non-disclosure order). On 16 March, the defendant applied to vary the non-disclosure order permitting the information sought to be protected to be included in any claim presented to an employment tribunal (a tribunal). The claimant sought the continuation of the non-disclosure order with a requirement that any claim to be presented to a tribunal be submitted to the claimant for agreement first, with any dispute to be resolved by the court.

The claimant submitted, inter alia, that he had a reasonable expectation of privacy such that his rights under article 8 of the European Convention on Human Rights (the convention) were engaged, and that the non-disclosure order in the terms sought by him would not amount to an interference with the defendant's rights under article 6 of the convention. He further submitted that the defendant's demand for payment meant that the defendant's claim for respect for his rights under article 10 of the convention was not very strong. Furthermore, there was a risk that the contents of a tribunal claim form might enter the public domain. The defendant contended that his demand to be paid for his shares in the context of a settlement of all issues arising out of the termination of his employment was not unwarranted. Further, where sexual relations were not consensual, but involved abuse or harassment, there could be no reasonable expectation of privacy. Rights to complain of such treatment strongly engaged articles 8 and 10. Furthermore, there was no right of the public to access tribunal claim forms and the claimant's subjective fears of disclosure were misplaced.

The court ruled: It was established law that when considering whether the publication of information which was said to be private should be permitted: (i) the first question to be considered was whether the claimant had a reasonable expectation of privacy in respect of that information such that their rights under article 8 of the convention were engaged; (ii) the second question was what the rights of the defendant were; and (iii) finally, the court had to weigh the rights claimed by the claimant against the rights of the other individuals concerned. In determining (i), the question was what a reasonable person of ordinary sensibilities would feel if they were placed in the same position as the claimant and faced with the same publicity (see [30], [33] of the judgment).

Although a person normally had a reasonable expectation of privacy in respect of sexual activity, that could not be the case where the activity was abusive or amounted to sexual harassment. Where the parties to a personal relationship were also in a work-related relationship, that had to be relevant to what a reasonable person of ordinary sensibilities who was a party to such dual relationships would feel. That was the more so if one party was in a more junior position than the other. In such a case, a reasonable person of ordinary sensibilities in the position of the more senior would recognise the possibility that apparent consent by the more junior person might actually be non-consensual submission. The senior party ought, in such a case, to feel that the disclosure of information which would otherwise be private, out to be disclosed to those responsible for determining disputes that arose at the work place, including a tribunal (see [61], [63], [64] of the judgment).

In the instant case, the risk that the defendant might attempt to abuse the process of the tribunal was not a real risk at all (see [70] of the judgment). The non-disclosure order would be continued with the variation in the form sought by the defendant (see [75] of the judgment).

Campbell v Mirror Group Newspapers Ltd [2004] 2 All ER 995 applied; Murray v Big Pictures (UK) Ltd [2008] 3 FCR 661 applied; Thorne v Motor Trade Association [1937] 3 All ER 157 considered; XXX v YYY [2004] IRLR 137 considered; XXX v YYY [2004] IRLR 471 considered; Cream Holdings Ltd v Banerjee [2004] 4 All ER 617 considered; S (a child) (identification: restriction on publication), Re [2004] 4 All ER 683 considered; Lord Browne of Madingley v Associated Newspapers Ltd [2007] All ER (D) 12 (May) considered; AMM v HXW [2010] All ER (D) 48 (Oct) considered; ETK v News Group Newspapers Ltd [2011] All ER (D) 197 (Apr) considered.

Matthew Nicklin (instructed by Eversheds) for the claimant; Akhlaq Choudhury (instructed by Thomas Mansfield) for the defendant.