June 24, 2019

An investigating officer of the claimant, the Advertising Standards Authority, had been investigating a complaint about a billboard advert attacking the record of the Royal Bank of Scotland, apparently funded by the defendant, Robert Mitchell.

On 31 May 2019 the officer sent an email, with a number of attachments, including (i) the original complaint; (ii) an exchange of correspondence with Mr Mitchell; (iii) draft recommendations in respect of an advertising complaint; (iv) an email chain including legal advice from a solicitor, Mr Rupert Earle; and (v) a written Opinion of Counsel from 2009. The email and attachments were meant to go to Mr Earle for further legal advice, but mistakenly went to Mr Mitchell.

The officer quickly realised his mistake and promptly sent a “message recall” email. He then emailed Mr Mitchell stating that the email was confidential and asking for its deletion. Various other communications were subsequently made and on 4 June, a letter was sent, together with drafts of an application notice and order for an injunction restraining Mr Mitchell from using, publishing, communicating or disclosing all or any part of the email and attachments, and any information derived from them, on the grounds of confidentiality.

Mr Mitchell clearly became aware of the communications from an early stage, evidenced by a series of posts on his Twitter account, on which he informed his followers that he was being threatened with a “super injunction”, posted a copy of the front page of the draft order, and criticised the ASA and its lawyers for their conduct.

Mr Mitchell also responded directly to all communications from the ASA and its lawyers, stating amongst other things that he would be “seeking specialist legal advice”, no undertakings would be forthcoming, and that the mistake was that of the ASA. He also invited the ASA to engage in calm reflection, “see the error of your hammer to crack a nut strategy”, immediately withdraw “this ill-judged injunctive claim”, and apologise.

On 6 June the ASA issued the application against Mr Mitchell.

Mr Justice Warby said that the important question was whether there was a sufficient threat or risk that Mr Mitchell would, unless restrained, carry out the acts that the injunction would prohibit (Linklaters LLP v Mellish [2019] EWHC 177 (QB)).

The evidence showed, amongst other things, that Mr Mitchell had leaked information in the past. Further, he had made it clear that he refused to consider himself bound by any confidentiality provisions of the ASA’s regime, and his correspondence suggested that he considered that the public interest justified disclosure.

Warby J said that the threshold test on an application for pre-trial relief was whether the ASA was, at trial, “likely to establish that publication should not be allowed”. In other words, whether publication would amount to a breach of confidence.

Mr Justice Warby found that the ASA would be likely to show that the information in the email and its attachments was confidential in nature, that it came to Mr Mitchell’s attention under circumstances importing a duty of confidence, and that his disclosure, publication or use of the information would be a breach of confidence.

Warby J said that the complaint itself was, so far, confidential. It was likely to become public, but that had not yet happened. The draft recommendations of the ASA, and the correspondence about them, were also unpublished and confidential in nature. This was expressly asserted in the ASA literature and documentation. The fact that Mr Mitchell had not signed up to the ASA rules was not an answer to this point. The imposition of a duty of confidence did not depend solely on contract or even on consent, he said.

Ordinarily, Warby J said, a person who receives confidential information when they know or ought reasonably to appreciate that it is confidential in nature comes under a duty to respect that confidentiality in the absence of a good and sufficient reason to override it. A good or sufficient reason may be the existence of a public interest in disclosure, such that the duty of confidence should be breached (HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57).

Warby J noted that the email did not contain any standard wording, for example, that the email and attachments were only intended for one or more persons, should not be used, copied or disseminated to anyone else, and if mis-addressed should be destroyed, and the sender notified. Despite this, Warby J said, the confidentiality of the information provided was clear enough on its face. A reasonable person in this position would have well understood its confidential character. Further, Warby J said, there were no public interest considerations that could weigh in the balance against the obvious public interest in upholding the confidence of the complainant, and the confidentiality of the ASA’s processes.

As for legal privilege, Warby J found that the legal advice given by Mr Earle and by Counsel was plainly confidential in nature and protected by legal professional privilege. He noted that it is established that where disclosure is the result of an obvious mistake the law does not require the court to engage in a balancing exercise in upholding the privilege as against the public interest. In this case, the mistake was clear on the face of the email and must have been plainly apparent to Mr Mitchell when he got it. The email was addressed to “Dear Rupert” and referred to Mr Mitchell in the third person. It referred to and contained a wealth of information that was clearly not intended to be seen, used or disclosed by anyone other than the ASA and its advisers. There was no reason therefore to depart from the default rule that privilege material may not be used or disclosed by the accidental recipient.

Warby J found that the ASA was indeed likely to establish, at trial, that its claim should be upheld. He therefore granted the injunction to preserve the position until the return date. (Advertising Standards Authority v Robert Neil Whyte Mitchell [2019] EWHC 1469 (QB) (11 June 2019) — to read the judgment in full, click here).