Action and redaction: equal and opposite?

For tytoc collie, finding a claimant called ABC
was literally a piece of cake

tytoc collie has seen some strange things in his time, but never a judgment quite like this. It's in the case of ABC Ltd v Y [2010] EWHC 3176 (Ch), in which Mr Justice Lewison -- one of the Patents Court judges for England and Wales -- gave judgment in the Chancery Division today.

The judgment is so heavily censored (or "redacted", as the text reads) that it's quite difficult to follow in places, and it's so full of Xs and Ys that it reads like an algebra textbook.  At the heart of the matter is an application by someone who was not a party to proceedings. As the judge put it:

"Between November 2006 and June 2008 proceedings were on foot in the Chancery Division. [X] was not a party to those proceedings. They were proceedings between five companies [redacted] and Mr [Y], in which the five companies sought injunctions against Mr [Y] restraining him from disclosing or misusing confidential information. Those proceedings resulted in at least three orders of judges of this Division, including the Chancellor, following hearings in private. During the course of the proceedings on 27 September 2007, at another hearing in private, Master Bowles made an order that, subject to further order, non-parties might not obtain documents on the court file. The proceedings were eventually compromised in June 2008. Under the terms of the compromise Mr [Y] submitted to an injunction in broad terms; and withdrew allegations made against the five companies and/or their directors, officers, members etc and in particular withdrew all allegations of improper conduct made in the High Court proceedings. Part of the compromise was a comprehensive confidentiality agreement. Following the compromise a consent order was made by Chief Master Winegarten on 25 June 2008. A redacted version of that order is in evidence. The order does not state that it was made at a hearing in private; and the body of the order does not direct that the hearing be in private. The order includes an undertaking by Mr [Y] to be bound by a permanent injunction preventing the use or disclosure of confidential information, which is defined in very wide terms. It also included an undertaking by Mr [Y] that he had deleted copies of confidential information from all electronic or reusable media (including mobile phones and handheld computer devices). The order recited that the parties had "agreed to the terms set out in the Schedule hereto (which Schedule is confidential and therefore not to be filed at court)". The operative part of the order included an order that Master Bowles' order relating to the sealing of the court file be made permanent.

[X] has now applied for permission to have copies of documents on the court file. [Redacted]
The ground of the application, according to the application notice, is that:

"… the documents are required in connection with other related ongoing proceedings [redacted].""

Lewison J refused the application with respect to all documents save Master Winegarten's order.  In the course of doing so, he reviewed the principles of open justice as well as Article 6 of the European Convention on Human Rights ("In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice"), the need to balance that provision against the entitlement to privacy under Article 8 of the same Convention and the extent to which publicity/privacy applies to interim orders.

It has been a big year for big confidentiality cases, says the Kat, who had his work cut out in trying to lick
Imerman v Tchenguiz and others [2010] EWCA Civ 908 into shape (see IPKat posting here) and is somewhat reminded of it now.  Then there was that spat over the identity of The Stig ...

ABC here and here
X factor here
Y chromosomes here

Why BBC stalled in race with The Stig

The BBC's next great idea, "Junior Top Gear"
 -- but will little Tommy overtake The Stig in popularity?

Readers with a mild interest in the parameters of commercial privacy/publicity, or with an obsession with the BBC's "Top Gear" television series, may recall tytoc collie's posts here and here on the unsuccessful efforts of the British Broadcasting Corporation to secure an interim injunction to prevent Ben Collins ,the human being whose persona as "The Stig" was the subject of much attention and speculation, from revealing in his biography who he really was. tytoc collie guessed what had happened, and his guess was confirmed at the time -- but now the full judgment of Mr Justice Morgan (Chancery Division, England and Wales) is available for all to read and (unless they do the BBC's contract work) enjoy. In short, there was a contract between the BBC and Collins' service company, but no contract and no obligation of confidentiality owed by Collins himself to the BBC.  As the judge put it,

"My conclusion is that Mr Collins was not a party to the relevant contracts. Although Mr Collins signed the contracts, he did so on behalf of the service company which was expressed to be the relevant contracting party, for which he signed. He did not, by his signature, become a further party to the contracts. The BBC contends that Mr Collins must have been a party to, at any rate, some of the earlier contracts because those contracts contained an obligation on the other contracting party that "you will not reveal your identity". It is said that it cannot have been intended that the service company would not reveal its identity; it must have been intended that Mr Collins would not reveal his identity. Therefore, it is argued, the contract must be directly binding on Mr Collins and it should be held that Mr Collins made himself a party to the contract for the purpose of taking on this obligation, but not, apparently, for any other purpose. I agree that the language of the obligation referring to "you" and "your" is not ideal given that the other contracting party is prima facie the service company. The real reason for that is that the parties did not think through the consequences of the fact that the contracting party was the service company rather than the individual performer. There are a number of ways for a court to react to this state of affairs. One is to take the contract literally. That produces the result that the service company contracted not to reveal its identity. That is not an absurd suggestion; if the service company had revealed its identity, that would indirectly reveal the identity of Mr Collins. Another way to read the contract is to hold that the service company contracted not to reveal its identity or the identity of Mr Collins. In my judgment, it is appropriate to hold that the contract is to be read in one or other of those ways and it is not appropriate to hold that Mr Collins himself entered into the contract for the sole purpose of entering into the obligation in question ...".

What about any duty of confidentiality which, apart from the contract, Collins might owe to the BBC? Yes, the judge said, such a duty of confidence existed.  However, that did not avail the BBC since, on the evidence the cat (metaphorically speaking) was out of the bag.

" I will ask whether the identity of The Stig is so generally accessible so that, in all the circumstances, it can no longer be regarded as confidential. In my judgment, the press coverage, in particular the press coverage in August 2010 [nb the BBC's claim was lodged on 17 August and was heard on 31 August/1 September], goes well beyond speculation as to the identity of The Stig. The statements in the press that Mr Collins was The Stig would be understood by the public as statements of fact. The number of different newspapers which have stated that fact is such that the fact is now generally accessible. For all practical purposes, anyone who would have any interest in knowing the identity of The Stig now knows it. The identity of The Stig is no longer a secret and it is no longer confidential information. I conclude that at the latest by 29th August 2010, the date of the last of the thirteen publications (between 19th and 29th August 2010) to which I referred above, the fact that Mr Collins was The Stig was so generally accessible that that information had lost its confidential character. At the lowest, I think it is likely that the court at any trial of this action would reach that conclusion".

All things considered, this was not good news for anyone seeking an interim injunction:

"Such an injunction would not protect the claimant from harm caused by the unlawful action of a defendant. Although such an injunction would deprive the defendant of a benefit, it is not a proper use of the court's power to grant an injunction merely to punish a defendant for his previous unlawful action, where the injunction does not protect the claimant against further harm, unlawfully caused. The court may award a financial remedy to a claimant in such a case, but that is not the remedy sought by the BBC on this application.".

This must be right, as far as it goes, says tytoc collie, but it does raise questions as to the bases under which the BBC might seek damages or equitable remuneration at some later stage -- if they have not already contemplated doing so.

What's The Stig doing now? Click here, here and here
A speedy Morgan here