The Judicial Committee of the Privy Council Decisions

The Commissioner of Police & Anor v. Bermuda Broadcasting Co Ltd & Ors (Bermuda ) [2007] UKPC 46 (26 June 2007)

Privy Council Petition No 48 of 2007

(1) The Commissioner of Police

(2) The Attorney General Petitioners

v.

(1) Bermuda Broadcasting Co Ltd

(2) Bermuda Press Holdings Ltd

(3) Defontes Broadcasting Co Ltd

(4) Bermuda Sun Ltd

(5) Defontes Broadcasting Television Ltd

Respondents

FROM

THE COURT OF APPEAL OF

BERMUDA

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REASONS FOR DECISION OF THE LORDS OF THE

 JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE

 26th June 2007, Delivered the 11^th July 2007

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Present at the hearing:-

Lord Walker of Gestingthorpe

Lord Carswell

Lord Neuberger of Abbotsbury

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[Delivered by Lord Walker of Gestingthorpe]

1. Late on the afternoon of 26 June 2007 the Board heard an ex parte application for an interlocutory injunction to run until the hearing of an appeal for which permission had been granted, only a few minutes before, by the Court of Appeal of Bermuda. The Board was informed that the Court of Appeal had ruled that it had no jurisdiction to grant an interlocutory injunction pending an appeal to the Privy Council. Their Lordships announced that (for reasons to be given later) they would grant the injunction, but only until the hearing of the appeal or further order in the meantime, with liberty to any of the respondents to apply to discharge or vary the injunction. These are the Board's reasons.
2. The background is that on 23 May 2007 a Bermudian television station, BZM, reported that it had in its possession documents relating to a police investigation into the affairs of the Bermuda Housing Corporation. On 1 June 2007 the Mid-Ocean News, a weekly newspaper published in Bermuda, devoted most of its front page to a story about the investigation. It asserted that the investigation was into suspicions of improper land transactions in which senior members of the government were implicated. The story continued on two other pages. In the following days it reappeared in other media in Bermuda.
3. On 7 June counsel for the appellants, the Commissioner of Police and the Attorney General of Bermuda, applied ex parte to the Chief Justice for injunctive relief against the respondents, two Bermudian broadcasting companies and two Bermudian newspaper publishers (two of the respondent companies named in the writ are not in fact the most appropriate companies in the relevant media groups, but no point has been taken on that). The main complaint was of breach of confidence, on the basis that the stories about the Bermuda Housing Corporation investigation were based on confidential information derived from police files which had been either stolen or improperly accessed. The Chief Justice insisted on the application being heard inter partes, as a result of which the hearing did not take place until about 6.15 pm on 7 June. At that hearing the Chief Justice accepted undertakings from the two respondents who were represented, and made an order against the two who were not represented, so as to hold the position until a full hearing on 13 June 2007. At the hearing the main burden of argument against injunctive relief was undertaken by the second respondent, Bermuda Press (Holdings) Ltd, the holding company of Royal Gazette Ltd, which publishes the Mid-Ocean News.
4. In the meantime search warrants had been issued against BZM and the publishers of the Mid-Ocean News. They were executed only to a limited extent, and nothing was found. On 1 June 2007 the police interviewed the Auditor General, who acknowledged that he had some documents relating to the investigation but declined to hand them over. On 11 June the police recovered a quantity of documents relating to the investigation (but none, it seems, from any of the respondents).
5. The Chief Justice handed down a reserved judgment on 18 June 2007. It is unnecessary to say more about the judgment than that the Chief Justice carefully summarised the law (referring to authorities including observations of Lord Griffiths in Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109, 268) and recognised that he had to carry out a balancing exercise. He concluded that he should not grant an injunction. However he then gave the Commissioner and the Attorney-General leave to appeal, and granted an injunction in order to hold the position until the hearing of the appeal.
6. The Court of Appeal (Zacca P, Nazareth JA and Ward JA) heard the appeal with the greatest possible expedition. The hearing took place on 19 and 20 June 2007. The judgment of the Court, written by Ward JA, was handed down on 25 June. The Court dismissed the appeal. The hearing of an application for leave to appeal, and for injunctive relief pending the hearing of the appeal, was deferred until 26 June.
7. The Board had been asked to be prepared to sit on 26 June to hear a possible application for interim relief, should that be refused by the Court of Appeal. It was foreseen that the Court of Appeal might refuse leave to appeal and might also refuse further interim relief pending the hearing of an application for permission to appeal. In the event the Court of Appeal granted leave to appeal but ruled that it had no jurisdiction to grant interim relief. This conclusion was based, the Board was told, on a decision of the Court of Appeal of Bermuda which was not identified at the hearing before the Board.
8. In these circumstances their Lordships have jurisdiction to grant interim relief (BACONGO v Department of Environment (Belize) [2003] 1 WLR 2839) and thought it right to exercise it by continuing the existing injunction on a temporary basis. Although this is an interlocutory matter, it is one in which the grant or withholding of interlocutory relief is likely to be of decisive importance in its practical effect on the parties. The Court of Appeal has itself granted leave to appeal, and it might frustrate that leave if the Board were to decline to grant relief which the Court of Appeal, rightly or wrongly, supposes itself to have no power to grant (the correctness of the Court of Appeal's conclusion as to its jurisdiction will now be an issue in the appeal). It seems highly unlikely that the Court of Appeal would, apart from the perceived procedural difficulty, have granted leave to appeal but refused injunctive relief in a way that would deprive the appeal of much of its significance.
9. For these reasons their Lordships acceded, without hearing lengthy argument, to the ex parte application made by Mr Guthrie QC on behalf of the appellants (Mr Solley, a solicitor in the English firm instructed on behalf of some or all of the respondents, was present but did not seek to address the Board). Their Lordships made clear to Mr Guthrie, and think it right to repeat here, that if there had been full inter partes argument it might have taken a good deal to persuade them that the Chief Justice erred in the exercise of his discretion, and that the Court of Appeal was wrong to dismiss the appeal.