Confidential information Crime Human rights Local government Practice




Confidential information



Breach of confidence - application for interim injunction to restrain publication - test of whether applicants 'likely' to establish at trial that publication should be prevented



Cream Holdings Ltd and others v Banerjee and another: HL (Lords Nicholls of Birkenhead, Woolf, Hoffmann, Scott of Foscote and Baroness Hale of Richmond): 14 October 2004



The first defendant, who was employed by the applicants as financial controller, was dismissed and when she left she took with her, without the applicants' permission, copies of documents which she claimed showed illegal and improper activity by the applicants.



She supplied those documents, and additional information, to the second defendants, the publishers of a local newspaper with a reputation for investigating stories of local public interest. The second defendants used that information to publish articles about alleged corruption involving the applicants and a local council official.



The applicants sought an interim injunction restraining publication of any further confidential information. The judge granted the injunction on the ground that the applicants had a real prospect of success in establishing at trial that publication should not be allowed.



To prevent the immediate loss of confidentiality in the disclosures that the defendants intended to publish, the judge delivered part of his judgment in a private appendix. The defendants appealed on the ground that when considering whether the claimant was 'likely', within the meaning of section 12(3) of the Human Rights Act 1998, to establish at trial that publication should be prevented, the judge had erred in applying the test of 'a real prospect of success' rather than the test of 'more likely than not'. The Court of Appeal held that the judge had applied the correct test and, by a majority, dismissed the appeal. Two members of the court also delivered separate confidential judgments to maintain privacy for the information. The defendants appealed.



Richard Spearman QC and Catrin Evans (instructed by Brabners Chaffe Street, Liverpool) for the defendants; Edward Bartley Jones QC and Kelly Pennifer (instructed by Wacks Caller, Manchester) for the applicants.



Held, allowing the appeal, that on its proper construction, the effect of section 12(3) was that the court was not to make an interim restraint order unless satisfied that the applicant's prospects of success at trial were sufficiently favourable to justify making the order; that in order to achieve the necessary flexibility, the degree of likelihood of success at trial needed to satisfy section 12(3) depended on all the circumstances and there could be no single, rigid standard governing all applications; that, as to what degree of likelihood made the prospects of success 'sufficiently favourable', the general approach should be that courts would be exceedingly slow to make orders where the applicant had not satisfied the court that he would probably ('more likely than not') succeed at the trial and, in general, that should be the threshold an applicant must cross before the court embarked on exercising its discretion; but that there would be cases where it was necessary for the court to depart from that general approach and a lesser degree of likelihood would suffice as a prerequisite; that it was clear from the private judgments given in the courts below that the judge had misdirected himself in a material respect when exercising his discretion and it therefore fell to their Lordships to exercise their discretion afresh; that since the information the defendants wished to publish related to matters of serious public interest, the applicants' prospects of success at trial were not sufficiently likely to justify making an interim restraint order and the injunction was discharged. (WLR)



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Crime



Evidence relating to telephone interception sought to be adduced at criminal trial - defence challenging prosecution's claim that interceptions admissible - court not prohibited from investigating whether interceptions made on public or private system



Attorney-General's Reference (No 5 of 2002): HL (Lords Bingham of Cornhill, Nicholls of Birkenhead, Steyn, Hope of Craighead and Walker of Gestingthorpe): 14 October 2004


In 1996, interceptions were made under section 9 of the Interception of Communications Act 1985 on telephones used by police officers, including W, suspected of supplying confidential material to a known criminal.



At trial, after implementation of the Regulation of Investigatory Powers Act 2000, the prosecution alleged that the interceptions took place on a private system. The defence claimed that section 17 of the 2000 Act prevented any investigation into the circumstances of the interception. The judge concluded that, since section 17 prohibited evidence being adduced in respect of a public, but not a private, system, he should exclude the prosecution's evidence and the defendants were acquitted.



The Attorney-General referred questions to the Court of Appeal about whether a criminal court could investigate whether intercept material had been obtained by tapping a private, as opposed to a public, system.



The Court of Appeal, having given its opinion, referred the same questions to the House of Lords.



David Perry and Duncan Penny (instructed by CPS, Headquarters) for the Attorney-General; Timothy Roberts QC and Robin McCoubrey (instructed by Brown Beer Nixon Mallom, Redcar) for W.



Held, that there was no indication that the 2000 Act was intended to depart from the principle in the 1985 Act of excluding the warrant regime from forensic inquiry, or that the court should not continue to examine whether an interception was made on a private or public system; that section 17 excluded evidence of any intercept product for which a warrant had, or should have been, obtained, but did not prohibit either disclosure where the interception was authorised without the need of a warrant or investigation of the lawfulness of such an interception; and that, accordingly, the court might investigate whether the interception was of a public or private system and, if the latter, whether it was lawful. (WLR)



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Human rights



Asylum sought at UK consulate in Australia by children escaping from immigration detention centre - actions of consular officials within UK jurisdiction and scope of Human Rights Act 1998 - children's convention rights not infringed by consular officials



R (B and others) v Secretary of State for the Foreign and Commonwealth Office: CA (Lord Phillips of Worth Matravers MR, Lord Justice Chadwick and Lord Slynn of Hadley): 18 October 2004


The claimants, who claimed to be Afghans, arrived in Australia in January 2001 and claimed asylum. They were detained in a detention centre where evidence showed that they were at risk of serious harm.



The claimants, aged 12 and 13, having escaped from the centre, requested asylum at the British consulate.



They were given food and accommodated until the Foreign Office decided that there were no grounds to consider an asylum request other than in the country of first asylum. They left the consulate and were taken into custody by the Australian authorities.



They were refused permission to proceed with a claim for judicial review of the foreign secretary's decision. They appealed.



Lord Kingsland QC and Angela Ward (instructed by Hickman & Rose, London) for the claimants; Tim Eicke (instructed by the Treasury Solicitor) for the foreign secretary.



Held, granting permission to proceed but dismissing the claim for judicial review, that the Human Rights Act 1998 was capable of applying to actions taken abroad by UK diplomatic and consular officials; that the threat to the child claimants' safety was neither sufficiently immediate, or severe, to justify the consular officials in



refusing to return them to the Australian authorities; that it followed that the actions of the consular officials did not infringe the European Convention on Human Rights or the Human Rights Act 1998 and, therefore, the claim for diplomatic asylum failed. (WLR)



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Local government



Homeless person - request for second review - lawful for same officer to conduct both reviews



Feld v Barnet London Borough Council; Pour v Westminster City Council: CA (Lords Justice Ward and Mance and Mr Justice Jackson): 18 October 2004


In each case, a homeless person, in accordance with his rights under sections 202 and 204 of the Housing Act 1996, and the Allocation of Housing and Homelessness (Review Procedure) Regulations 1999, requested a second review of a decision by his housing authority as to the suitability of the accommodation offered.



The second review was, in each case, carried out by the same officer who had conducted the first reviews.



An appeal to the county court by one applicant against the procedure adopted by his local council was dismissed, but the second applicant's appeal to a different county court was upheld on grounds of apparent bias by the reviewing officer. The applicant in the first case and the city council in the second appealed.



Martin Russell (instructed by Moss Beachley Mullem & Coleman, London) for the applicants; Andrew Arden QC and Jonathon Rushton (instructed by Borough Solicitor, Barnet London Borough Council) for the borough council; Clive H Jones and James Brightwell (instructed by director of legal and administrative services, Westminster City Council) for the city council.



Held, dismissing the first appeal and allowing the second, that all reviews had to be conducted fairly and impartially; that the test for apparent bias was laid down in Porter v Magill [2002] 2 AC 257; and that, where a second review was requested, the officer who had undertaken the first could properly conduct the second, providing a fair-minded and informed observer having considered all the facts could properly conclude that there was no possibility of apparent bias.



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Practice



Public funding of litigation - set-off of costs - lawyers potentially deterred from accepting instructions - potential injustice ensuing



Regina (Burkett) v Hammersmith and Fulham London Borough Council (No 2), Law Society and Legal Services Commission intervening: (Lords Justice Brooke, Buxton and Carnwath): 15 October 2004


The claimant was publicly funded in environment-related litigation. The Administrative Court dismissed her application for judicial review on grounds of delay. Having successfully appealed as to delay as far as the House of Lords [2002] 1 WLR 1593, the claim was remitted for hearing, but was dismissed.



As to costs, the judge, considering himself bound by Lockley v National Blood Transfusion Service [1992] 1 WLR 492, ordered that the defendant's costs be set off against the costs ordered by the House of Lords to be paid to the claimant, linked to the amount of costs which the defendant was assessed as liable to pay according to the House of Lords, and no more. The claimant appealed.



Nicholas Bacon (instructed by Richard Buxton, Cambridge) for the claimant; Richard McManus QC and Andrew Tabachnik (instructed by Michael Cogher, head of legal services, London Borough of Hammersmith and Fulham) for the council; Nigel Cooksley QC (instructed by Anthony Brooks, Holborn) for the Law Society; Simon P Browne (instructed by Ruth Symons, Holborn) for the Legal Services Commission.



Held, dismissing the appeal, that Lockley was binding even though the case fell under subsequent provisions, the Access to Justice Act 1999, and the Community Legal Service (Cost Protection) Regulations 2000 (SI No 824 of 2000), and there were no material alterations; that, although it was not a factor considered in determining the appeal, the fees of lawyers acting for Legal Services Commission-funded litigants had remained frozen at 1996 levels and, where counsel might through set-off find their fees reduced as a result of a subsequent adverse decision in a case when they were no longer instructed, lawyers might be deterred from acting, and history had shown that such distortions in rates of pay were always likely to work substantial injustice; that the limited profit accruing in environmental cases had led to little interest in the subject by lawyers generally, and the court would be troubled if that effect were left uncorrected by other means, because of the importance of maintaining the viability of the few legal practices which operated in the field of publicly funded environmental litigation, and such concerns were not confined to environmental law.



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The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales; telephone: 020 7242 6471; fax: 020 7831 5247; http://www.lawreports.co.uk

WLR means that a report has been submitted for publication in the Weekly Law Reports