England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE EADY
Claim No HQ10X02201

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/04/2011

The Master of the Rolls:

Introductory

1. This is an appeal against a decision of Eady J, who, on 15 July 2010, refused to continue an interlocutory injunction, granted ex parte by Maddison J, sought by the claimant, Elena Ambrosiadou against the defendant, Martin Coward, her estranged husband. However, Eady J continued the injunction pending this appeal.
2. The injunction restrained the defendant from;

"(1) Deal[ing] with or part[ing] with possession of [any documents] ('the Documents') … filed or served … in the divorce proceedings in Greece between [the parties], and

(2) us[ing or] publish[ing] communicat[ing] or disclos[ing] … other than to his legal advisers … any information or claims extracted or derived from the Documents or any of them…".

3. The order made by Maddison J was subject to two provisos, which were in the following terms:

PROVIDED ALWAYS that nothing in [para (2)] of this Order shall be taken to either prevent or allow the [defendant] to use publish communicate or disclose information or claims which he possesses independently of the contents of the Documents;

PROVIDED ALWAYS THAT the above prohibitions shall not apply if and to the extent that at the date of this Order or at any time hereafter the Documents or any of them are or become generally accessible to the public other than as a result of a breach of this Order or a breach of confidence or privacy on the part of any person … ."

The factual background

4. The claimant and the defendant ("the parties") got married in England in 1983, and they have one son ("the boy"), who was born in October 1996. In 1992, the parties founded a company called IKOS CIF Limited ("IKOS"), which has grown into a very successful hedge fund management services operation, which currently has assets under management worth around US$1,200m. IKOS has been registered in, and has operated from, Cyprus, since 2005, which was around the time the parties went to live there. It appears that the claimant claims to have been was responsible for IKOS's management and marketing, and the defendant says that he developed and managed the software for research and its trading operations.
5. In April 2009, the claimant started divorce proceedings ("the Greek proceedings") by issuing a petition in Thessaloniki, Greece – the proceedings referred to in para (1) of the order made by Maddison J. After the defendant issued a counter-petition in those proceedings in January 2010, the claimant filed a further claim for divorce in Monaco (and she withdrew her petition in August 2010, and two months after that, the defendant withdrew his counter-petition). It appears to be the claimant's case that the marriage had fallen apart in 2004, whereas the defendant says that it was the claimant's summary dismissal of his research and development team at IKOS in December 2008 which effectively caused the marriage to founder.
6. In December 2009, the defendant resigned from the board of IKOS. Shortly thereafter, IKOS brought proceedings in Cyprus, which resulted in an injunction being granted against the defendant on 23 December 2009 to protect its rights of confidentiality. That injunction was subsequently registered here, so that, as the Judge pointed out, it would be enforceable pursuant to the Judgments Regulation and the Civil Jurisdiction and Judgments Order (SI 2001 No. 3929), at the suit of IKOS.
7. On 19 May 2010, the defendant issued an application ("the May application") in the Greek proceedings for provisional measures, relating to the boy. In summary, he sought orders concerning his contact with the boy, and the boy's schooling and assets. The notice in support of the May application ("the May application notice") contained a number of allegations relating to the disputes which had arisen between the parties both domestically and in relation to IKOS. At least to an English lawyer, many of these allegations seem to have had little to do with the provisional measures which the defendant was seeking.
8. On 27 May 2010, at a hearing in the Thessaloniki court ("the May hearing"), after rejecting the claimant's application for an adjournment, a Judge made orders regarding the defendant's contact with the boy and the boy's education. (The May application notice has now been withdrawn by the defendant: this occurred around the time that he withdrew his counter-petition following the withdrawal of the claimant's petition, so it appears that the Greek proceedings are now discontinued).
9. On 29 May 2010, the defendant's solicitors, Hogan Lovells International LLP ("Lovells") sent Louise Armitstead, a Daily Telegraph journalist, a copy of the May application notice, together with a copy of a written proposal he had made to the board of IKOS on 9 December 2009 and his letter of resignation from the board of IKOS (the "resignation letter"), written two days thereafter. Lovells made it clear to Ms Armitstead that they did not wish her to reveal that they were her source.
10. On 1 June 2010, Ms Armitstead contacted the claimant's public relations representatives about this, and the claimant's solicitors, Schillings, immediately sought an undertaking from the publishers of the Daily Telegraph not to use the information contained in those documents. The publishers of the Daily Telegraph promised to give notice to Schillings before publishing any such information. This promise was breached when an article appeared in the 3 June edition of the Daily Telegraph without any such prior notice, but, fortunately, its contents were not objectionable.
11. Just after 10.00 am on 4 June 2010, Schillings contacted Lovells, as they rightly suspected that the defendant was Ms Armitstead's source, and threatened to apply for injunctive relief unless the defendant gave appropriate undertakings. This prompted the defendant to issue, through his litigation public relations company, a statement ("the June statement") just before midday. In that statement, he said that he had so far "refrained from commenting in detail either to my former clients or to the media", but, following "an open court hearing in Greece", he had decided to release a copy of the May application notice, which, as he explained, set out his resignation letter in full. As he also explained in the June statement, the copy of the May application notice he was releasing had been redacted "to protect the privacy both of IKOS clients and Dr Coward's son."
12. It appears that the June statement and the redacted May application notice were sent to rather over fifty organisations, most of them media organisations. Unsurprisingly, Schillings learnt of the June statement within a couple of hours of its release, and, equally unsurprisingly, they immediately wrote complaining about it in very strong terms to Lovells.
13. The June statement and redacted May application notice resulted in an article in the 5 June 2010 edition (both hard copy and electronic version) of the Daily Mail, which referred to the "bitter divorce" between the parties, the defendant's allegations of the claimant's high-handed behaviour, and a custody battle.
14. Unfortunately, the redacted version of the May application notice could, with the use of a piece of non-standard, but fairly easily available, software costing around £300, be unredacted. In other words, the parts of the May application notice which the defendant had blanked out could be restored, and therefore read, by someone who had access to the necessary technical knowledge and the software.
15. The defendant refused to admit that he had done anything wrong, so the claimant immediately applied to Maddison J for ex parte relief, which was granted during the evening of 4 June. The application then came on inter partes before Eady J on 21 and 22 June, and, having heard argument as to what could be included in his open judgment on 8 July, he handed down a reserved judgment on 15 July 2010 dismissing the application.

The judgment of Eady J

16. In his judgment, Eady J explained that the defendant's May application contained a great deal of information which seemed, at least on the face of it to an English lawyer, to have little to do with the relief he was seeking, dealing as it did in some detail with the parties' actions in relation to IKOS. However, he recorded that the parties "agreed that the matrimonial proceedings and their business affairs are inextricably linked" - [2010] EWHC 1794 (QB), para 5. Nonetheless, as he also said, six paragraphs later, "[i]t is quite possible that the defendant believed … that if the matters he wished to canvass in public were mentioned in open court, … they could then be reported and referred to in public without his incurring legal liability …".
17. The Judge considered a substantial amount of expert evidence and argument as to whether the May hearing was in open court or not (see at [2010] EWHC 1794 (QB), paras 18-26 and 34-48), and he concluded that the evidence was equivocal. However, as he explained, that was not necessarily destructive of the claimant's case, which had to be determined by reference to section 12(3) of the Human Rights Act 1998, as discussed in Cream Holdings Ltd v Banerjee [2005] 1 AC 253. Accordingly, as he put it, "[t]he critical question … is whether she would be likely to obtain injunctive relief at trial" - [2010] EWHC 1794 (QB), para 49.
18. He then said at [2010] EWHC 1794 (QB), para 51 that

"If I apprehended a real risk that private matters, whether concerning the marriage and the parties' purely personal relations, or any of the son's private affairs, were to be publicised by the defendant, I would have no hesitation in granting an injunction to protect that information – simply by way of carrying out the 'ultimate balancing exercise' required as between competing Convention rights."

As he went on to explain in the next paragraph, and in para 56(1)-(3), this view was based on the fact that any public interest in those private matters was plainly overridden by the privacy rights of the claimant and the boy, and the material had not, in his view, "genuinely entered into the public domain", despite the defendant's failure to redact that material effectively.

19. However, in the next paragraph, the Judge explained that he took "the view … that there is no likelihood that the defendant will seek to publicise the matters he attempted to redact from [the May] application notice", as he had "given an assurance that in any further publication the redaction would be [effective]". He also held that, in so far as the unredacted contents of the May application notice included "allegations critical of [the claimant's] behaviour in a business or corporate context", she had "failed to demonstrate that [they] are such that she would have a reasonable expectation of privacy in relation to them" - [2010] EWHC 1794 (QB), para 56(4).
20. Accordingly, the Judge dismissed the claimant's application, but, understandably taking the view that the defendant had brought the proceedings on himself, he made no order for costs. As mentioned above, he stayed the lifting of the ex parte injunction granted by Maddison J pending any appeal.

These proceedings: permission to appeal

21. The Judge refused permission to appeal. The claimant applied to this court for permission to appeal, and, after considering the papers, Sir Richard Buxton gave permission to appeal on the basis that, particularly because of the importance of "preserving the rights of the child, … it [was] arguably not enough to rely on the assumption or assurance of counsel, as opposed to obtaining a binding undertaking."
22. The claimant then sought clarification as to the precise extent to which she had been given permission to appeal, and, to the extent that some of her proposed grounds of appeal had been rejected, she renewed her application. The matter came before Sedley LJ, who, for reasons contained in a judgment given on 23 November 2010, did not determine the issue.
23. The claimant then pursued her appeal and her application for permission to appeal in so far as it had not been granted by Sir Richard Buxton. (In my view, it is open to the claimant to renew her application for permission to appeal, in so far as it was not granted by Sir Richard Buxton, as Sedley LJ did not refuse that application at the November 2010 hearing: he expressly made no order.)

The defendant's offer

24. On 22 December 2010, Lovells wrote to Schillings offering, on behalf of the defendant to give an undertaking or to submit to an injunction not to release any information concerning the boy's "private affairs", which were explained as including his residence, education, relationship with the parties, wider family and friends, and custody and contact arrangements, or "the marriage and personal relationship between [the parties]", which was explained to include their "personal and domestic life together and their cohabitation". The letter also contained an offer "to consider reasonable revisions to the wording". A later letter made it clear that this would extend to information "whether or not included in the [May] application notice." However, in answer to a letter in reply from Schillings, Lovells made it clear that the defendant did not consider that the proposed form of words would prevent him from "disseminat[ing] to the media the redacted version of the [May] application notice", although he emphasised that he had "no desire or intention" to do so.
25. Although the claimant did not accept the defendant's offer, Mr Desmond Browne QC, for the defendant, made it clear that the defendant's offer to give an undertaking or to submit to an injunction stands, notwithstanding the claimant's prosecution of this appeal.

The claimant's case on this appeal

26. The claimant's case as developed on this appeal amounted to this, that (i) much of the information contained in the May application notice, including some of the material which was not redacted, was confidential, in the sense of its publication infringing the Article 8 rights of the claimant and/or the boy, and that (ii) in all the circumstances, the Judge was wrong to refuse the claimant injunctive relief. I shall consider these two points in turn.

The extent to which Article 8 is engaged

27. I turn first to consider the extent to which the May application notice contained material which engaged Article 8. In my view, the material which was not redacted from the notice does not contain information in respect of which the claimant or the boy had a reasonable expectation of privacy. This unredacted material either amounted to information concerning the management and disagreements concerning IKOS, or it consisted of anodyne information about the parties' marital or personal relationship.
28. For the claimant, Mr Richard Spearman QC understandably concentrated on unredacted passages in the latter category, as they referred to personal matters. However, to put it at its lowest, the Judge was, in my opinion, entitled to take the view that those passages contained information of a trivial nature, of a low level of personal significance, in respect of which the claimant did not really have any expectation of privacy, and which therefore did not attract Article 8 protection.
29. The unredacted material includes the fact that the boy lives with the claimant, the fact that the claimant is said by the defendant in unparticularised terms to obstruct his access to the boy, the allegation, again unparticularised, that the claimant's high-handed behaviour at work detrimentally affected the parties' personal relationship, and the broad statement that the defendant "attempt[ed] to save [the] marriage".
30. In my view, these statements are of a nature which should not normally be protected by the courts, because they do not appear to contain information in respect of which the claimant had a reasonable expectation of privacy, and, in this case, a judge could reasonably have formed such a view. Just because information relates to a person's family and private life, it will not automatically be protected by the courts: for instance, the information may be of slight significance, generally expressed, or anodyne in nature. While respect for family and private life is of fundamental importance, it seems to me that the courts should, in the absence of special facts, generally expect people to adopt a reasonably robust and realistic approach to living in the 21^st century.
31. The claimant's difficulties in connection with the unredacted personal material are reinforced on this appeal by the fact that the judgment below, which has been publicly released in the normal way, contains some details of the May application notice and the May hearing, some information about the personal wealth of the boy, and some facts about the breakdown of the parties' marriage. It is true that there was a dispute as to what Eady J could include in his open judgment, but there was no application by the claimant for an order excluding any disputed material from the public judgment until the appeal process had been concluded.
32. Many people might think that publishing the unredacted material through the medium of the May application notice, particularly after objections had been made to such a course by the claimant, was unattractive, and significantly more unattractive than if the information had been published in a separate statement issued for that purpose. However, I cannot discern how that fact can be said to improve the claimant's case (or, indeed, the defendant's case) as to whether the information in the unredacted material engaged Article 8. The document was prepared by the defendant (no doubt with the benefit of legal advice), and, as I see it, the information it contained, when published outside legal proceedings, either infringed a right (normally a privacy/confidentiality right or a right not to be defamed) of the claimant or the boy, or it did not. And, in my view, the unredacted material probably did not: certainly, the Judge was entitled to take that view.
33. As for the commercial information in the unredacted material, there was no real attack by Mr Spearman on Eady J's findings that the claimant had no expectation of privacy in respect of it, and that, in so far as IKOS had any ground for complaint, it could rely on the Cypriot order referred to in para 6 above, or it could seek a fresh injunction in this jurisdiction.
34. The redacted material stands on a very different footing. In my view, much of it does contain information in respect of which the claimant and the boy had a reasonable expectation of privacy, and Article 8 of the Convention is accordingly engaged. Further, there is (realistically) no challenge to the Judge's finding that, despite (a) the (apparently unintentional) release of the redacted material from the May application notice accompanying the June statement, (b) the release of a wholly unredacted May application notice to the Daily Telegraph, and (c) the publication of the Daily Mail article, "the information in question [was not] so generally accessible", so that it "cannot be regarded as confidential", quoting from Lord Goff in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282C. In those circumstances, the claimant has at least the potential basis for interlocutory relief, which is the second point raised on her behalf, and the point to which I now turn.

The claim for injunctive relief

35. Mr Browne not unreasonably contends that the problem for the claimant in this connection is that the Judge decided that there was no further risk of the defendant disseminating the redacted material, or the information contained therein. There is some support for that conclusion: (a) the redacted material was, according to the defendant, genuinely intended to be inaccessible, (b) since Eady J refused to grant the injunction, there has been no further publication of any information by the defendant about which the claimant or the boy could complain, and, (c) the defendant has offered an undertaking or to submit to an injunction, as described in paras 24-5 above.
36. On the other hand, the claimant has reasons for doubting the defendant's genuineness or firmness of purpose in this connection: (a) the defendant released the unredacted version of the May application notice to the Daily Telegraph, (b) the defendant not merely released around fifty copies of the redacted version, but failed to ensure the redacted material was inaccessible, and (c) over fifty copies of the redacted version were distributed after the possibility of an injunction had been raised by the claimant. Further, as Sir Richard Buxton pointed out when giving permission to appeal, the issue is particularly sensitive due to the interest and involvement of the boy.
37. I rather suspect that, if sitting at first instance, I would have granted an injunction, at least if the case had been argued as it has been before this court. However, were it not for one point, I would, albeit with hesitation, have upheld the Judge's decision to refuse the relief sought by the claimant, on the basis that the refusal was the result of a proper exercise of judicial discretion, which in turn was based on his assessment that there was no real risk of the defendant publishing the redacted material again. Putting the matter another way, subject to one point, the Judge took all relevant matters into account, he did not take into account irrelevant matters, and the decision he reached appears to me to have been one which a reasonable judge could have reached.
38. The reason I would be prepared to overrule the Judge is a ground which does not seem to have played much, if any, part in the reasoning in the judgment below. In the absence of an injunction, it would seem that there would be nothing to prevent a person, to whom an ineptly redacted copy of the May application notice was sent, actually reading the redacted material, and then publishing any information contained therein. An interlocutory injunction restraining the defendant from publishing such information would prevent such a person from doing so, provided that person had notice of the injunction, pursuant to the so-called Spycatcher principle – see Attorney-General v Newspaper Publishing Plc [1988] Ch 333, 375, 380.
39. It is only fair to the Judge to record that this point does not seem to have been given much prominence in the claimant's argument below. However, I consider that it is a powerful point in favour of granting an injunction particularly bearing in mind that (i) access to all the information in the May application notice has been provided by the defendant to third party media organisations, (ii) much of the information appears to relate to the private and family life of a child, (iii) the fact that much of the information has not been published by the media, and (iv) it is quite possible that some media organisations have been holding off publishing in the light of the injunction granted ex parte by Maddison J and continued by Eady J pending this appeal.
40. It appears to me that there is considerable force in the claimant's contention that, in the light of these factors, it would be appropriate for this court to reverse the decision of the Judge below to refuse the injunction sought. After all, the risk of third parties publishing information contained in the redacted material is entirely due to the defendant's unattractive behaviour in releasing many copies of the redacted application notice coupled with his ineptitude in failing to effect the redactions securely.
41. The fact that the interests of a young teenager are engaged reinforces this point, as the Judge acknowledged at [2010] EWHC 1794 (QB) 1794, para 29, where he described the boy's Article 8 interests as being "[o]f particular significance in this case" which "need to be borne in mind throughout". As the Judge went on to explain, the boy "has made his own position clear in an email to his parents on 13 June 2010. Quite simply, he does not want all those matters canvassed in public."

Conclusion on the issue of an injunction

42. In these circumstances, I would, for my part, be prepared to allow this appeal and enjoin the defendant (i) from publishing the material redacted from the May application notice, or any information contained therein or derived therefrom, and (ii) from publishing the May application notice, in the light of the unfortunate history. However, reflecting the approach of the Judge, I do not consider that the injunction should go any further than this: there is no history or threat of the defendant publishing any other document in the Greek proceedings, or any information derived therefrom to which the claimant could object.
43. (After our judgments were provided in draft form to the parties and their legal representatives in the normal way, the defendant asked for clarification of proposed injunction (ii), suggesting that this be restricted to the unredacted notice. This was said to be justified on the basis that we had concluded that we should not enjoin publication of the information which remained unredacted from the redacted notice – see proposed injunction (i). That is not unreasonable on the face of it, but, in the light of the very unusual facts of this case, it seemed, and still seems, right to enjoin publication of the May application notice in any form. No reason has been advanced on behalf of the defendant as to why it would be to his legitimate benefit to disseminate the May application notice in any form, and, in the light of the unfortunate turn of events when he previously disseminated the notice, it appears to me that, in our discretion, we should preclude its further dissemination. It is not as if we would thereby preventing him from publishing any unobjectionable information in the notice).
44. I must confess to being somewhat bemused by the first of the two provisos to the ex parte order made by Maddison J, which are set out in para 3 above. It seems quite inapt in so far as it is intended to apply to information in a document such as the May application notice, which contained material almost exclusively acquired by the defendant from his own knowledge and experience. Even more to the point, the proviso seems inapt in so far as it is concerned with preventing material whose publication is objectionable on the ground that it would infringe the Article 8 rights of the claimant and the boy. It simply leaves open the question of whether the publication of such material should be enjoined.
45. The terms of the proviso indicate a degree of confusion, or a significant change in the thrust, of the claimant's case. Mr Browne certainly suggested the first of the two provisos presented the claimant with problems in relation to para (2) of the injunction it sought from Eady J, as contained in the order made by Maddison J.
46. The parties should agree a form of order which reflects the view expressed in paras 39-43 above, as to the limited form of injunction which should be granted, and which reflects the concern about the provisos discussed in paras 44-5 above. To the extent that the parties are unable to agree a form of order, they have permission to apply in writing.

Preliminary view on costs

47. The parties are also welcome to make written submissions on costs but it is right to say that my provisional opinion is that there should be no order for costs here or below. Given my view that the claimant should have succeeded below, it might at first sight appear to follow that she should expect to recover at least some of her costs here and below.
48. However, the substantial costs which must have been spent on the expert evidence, which was ultimately of no assistance to the claimant's case, should not be the liability of the defendant. Furthermore, in the light of what I have said in the last two sentences of para 39 above, the claimant's case before Eady J was rather more wide-ranging than it was before us, and apparently a little confused; additionally, it did not make much, if anything, of the Spycatcher principle. As for the costs of the appeal, although the claimant has won, she should, in my view, have accepted the defendant's offer to submit to an injunction, especially as the terms of the proposed injunction were clearly said to be negotiable: accordingly she appears to be no better off than if she had agreed the defendant's offer.
49. In those circumstances, at least as I see it at present, the claimant could not expect to recover a particularly substantial proportion of her costs below, and the defendant could expect to recover a significant proportion of his costs of this appeal. On that basis, no order for costs throughout would seem a sensible order.

The hearing was in public

50. When the appeal was called on, Mr Spearman applied for the hearing to take place in private, on the ground that it would be necessary to refer to material in the May application notice, which was arguably entitled to protection from public dissemination. We took the view that the application should be refused, provided steps could be taken to ensure that arguably private information, whether mentioned in court or contained in a document referred to in court, could not be disseminated outside the court. As has been stated on many occasions, court hearings should take place in public and should be freely reported unless justice cannot be done on that basis in the particular case, and in that event, the court should ensure that the restrictions on access and reporting are the minimum necessary to enable justice to be done in that case.
51. In this case, we took the view that we should order that there should be no reporting of the contents of the May application notice, whether or not mentioned in court, without the permission of the court or the written agreement of both parties (or their solicitors). On that basis, we could see no objection to the hearing proceeding in open court, on the basis that counsel could be expected to be able to avoid revealing any private information in their oral submissions. If, for some reason it had been necessary to do so, counsel could have asked the court to sit in private temporarily; if counsel had accidentally revealed any private information orally, the court could have made an appropriate order preventing its reporting. This did not appear to give rise to any difficulties.
52. In many cases involving alleged confidential information, one or both of the parties wish the hearing to take place in private, because of understandable concern that confidential information may be revealed in the course of the hearing. Before applying for the hearing to be in private, the parties and their advisers should consider whether such concerns can be accommodated by a less drastic course, such as that adopted in this case. Experience suggests to me that it normally can, and I agree with what Leveson LJ has said in his short judgment.

Lord Justice Leveson:

53. For the reasons that he gives and to the limited extent that he suggests, I agree with the judgment of the Master of the Rolls that this appeal should be allowed. I also agree with his general observations about the need to conduct proceedings in public save only in the most unusual circumstances.
54. As in this case, it is almost invariably possible to conduct a hearing of this nature in public and in such a way as demonstrates adherence to the principle of open justice, while at the same time ensuring that truly confidential material is referenced on paper and does not enter the public domain. When cases of this nature arise, therefore, it is critically important that parties conducting them prepare documents (including submissions) in a way that facilitates that approach. Without being prescriptive but by way of example, this could involve placing confidential material in an annex which the court can readily identify and order not to be disclosed.

Lord Justice Pitchford:

55. For the reasons given by the Master of the Rolls at paragraphs 38-42 of his judgment I too would allow the appeal to the extent he indicates.