His Honour Judge Alan P. Mahon, Her Honour Judge Mary Flaherty and His Honour Judge Gerald B. Keys (Members of the Tribunal of Injury into Certain Planning Matters and Payments) (plaintiffs/appellants) v Post Publications Ltd trading as the Sunday Business Post (defendant/respondent)
Injunction - Appeal of refusal to grant an interlocutory injunction restraining the respondent from publishing confidential documents - Whether policy of confidentiality legal - Whether limitation proposed reasonable and proportionate - Bunreacht na hEireann Article 40.6.1- European Convention of Human Rights Act Articles 8 and 10
The Supreme Court (The Chief Justice, Mr Justice Murray, Mrs. Justice Denham, Mr Justice Hardiman, Mr Justice Fennelly and Mr Justice Geoghegan); judgments delivered March 29th, 2007.
The right to freedom of expression is guaranteed by the Constitution and by the European Convention of Human Rights. It is elementary that any party asking a court to impose prior restraint of a publication must justify it. This freedom is subject only to clearly defined exceptions laid down by common law or statute. Any restriction sought must be rationally connected to the objective and not unfair. To succeed in an action for a breach of confidence, the information must (in fact) have been confidential in nature. Similarly, it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it. Ordinarily the law of confidence operates as between private individuals and in order for a government body to obtain an injunction for such a breach it must prove detriment to the public interest. No legal justification had been established for the appellants' claim (the Tribunal) of confidentiality and the orders sought at present could only be made on a presumptive and entirely speculative basis.
The Supreme Court so held in dismissing the appellants appeal and affirming the High Court order.
Paul O'Higgins SC, and Kilda Mooney, BL for the appellant; Eoin McCullough, SC and John Lucey, BL for the respondent.
Mr Justice Fennelly commenced his judgment by setting out the context of the appeal. The appellants are members of the Tribunal of Inquiry into Certain Planning Matters and Payments. The respondent was a limited company responsible for the publication of both The Examiner and the Sunday Business Post. In this appeal, the appellant asked the court to hold that it had the power to require that documents which it circulates prior to the public hearing of its modules be treated as confidential. The court was also asked to make general orders restraining the respondent, and in effect all media, from communicating and publishing these documents until they are disclosed at a public hearing.
Mr Justice Fennelly then went on to outline the history of the case in the High Court. The proceedings commenced December 17th, 2004, when, the then president of the High Court, Mr Justice Finnegan, on an ex parte application, granted to the Tribunal (appellant), interim injunctions, which in broad terms restrained the respondent from publishing information or documentation that the Tribunal had directed should remain confidential until disclosed at public hearing. On January 17th, 2005, the Tribunal then proceeded to apply for interlocutory injunctions in the same terms. Following adjournments to facilitate an exchange of affidavits, the matter came on before Mr Justice Kelly in the High Court. The hearing of the motion was treated as the trial of the action.
Mr Justice Fennelly examined the evidence on affidavit grounding the Tribunal's motion. The appellant had expounded its policy in respect of confidentiality in a protocol of January 14th, 1998. The appellant appreciated the concern with regard to personal and commercial confidentiality of persons wishing to assist it in its work. Principally these were that it would return all original documents to their owners on conclusion of its work. In addition all copies of documents containing confidential, commercially sensitive or personal information would be destroyed on conclusion of its work; confidential information not relevant to the inquiry would not be disclosed to any outside party; documents containing both confidential, commercially sensitive or personal information and other information, which was relevant, would have irrelevant information blanked out. Mr Justice Fennelly observed that despite the Tribunal's protocols on confidentiality, the appellant had, since its establishment, experienced considerable difficulties in respect of unauthorised disclosure of confidential information. This was to be gleaned from a number of instances of serious complaints from individuals who claimed their rights had been infringed by such unauthorised disclosure.
The modus operandi of the Tribunal was set out on affidavit. The Tribunal's work is divided into stages. The first consisted of an investigative stage conducted entirely in private. The second consisted of public hearings. During the first stage the Tribunal seeks statements from persons who may be called as witnesses and for this reason confidentiality is essential to ensure co-operation from such witnesses. On completion of the first stage the Tribunal then circulates a set of documents, known as a brief, some six weeks in advance of the commencement of the public hearings. Circulation is to a carefully selected number of persons and on a strictly confidential basis. Further the terms of the appellant's confidentiality requirement is set out in a letter accompanying the documents.
The Tribunal's affidavit set out previous instances of leaks and complaints from individuals assisting the appellant. These instances occurred in 1998 and 2001 and both involved unauthorised publication of documentation and information concerning the Tribunal's investigations in the respondent's newspaper. The next leak, and the subject matter of this appeal, concerned the Tribunal's brief for its pending "Coolamber" module which contained the same confidentiality stipulation. This brief was circulated on October 15th, 2004. On October 17th, 2004, the respondent published two articles, written by Barry O'Kelly, entitled: "Jim Kennedy's Pipe Dream" and "Fifty Councillors named in new planning tribunal list". A number of complaints were then received and following this the appellant wrote to Mr O'Kelly requesting that he identify the sources of the information in his article and furnish any documentation he had received in relation to his articles. On October 24th, 2004, a further article appeared in the respondents newspaper entitled: "Lenihan, Flynn in new payments revelations." This article contained a photograph of an extract from a confidential statement which contained the word "confidential" on its face and had the Tribunal's date stamp. On October 26th, 2004, Mr O'Kelly contacted the Tribunal to state that he could not comply with the written request to name his sources, claiming journalistic confidentiality and stating that the documents had been destroyed. The Tribunal then wrote to all recipients of the "Coolamber" brief seeking to ascertain the source of the leak but to no avail. Mr O'Kelly was then summoned before the Tribunal on December 1st, 2004, where he declined to produce his copy of the statement contained in his last article and refused to reveal his sources. Mr Justice Fennelly noted that the Tribunal's main motivation for seeking injunctive relief involved a grave concern, that all documents circulated by it would be deliberately leaked, in an attempt to undermine its work. However, the respondents, in their affidavit, sought to contest the jurisdiction of the Tribunal to demand disclosure of sources from Mr O'Kelly and further disputed the confidentiality of the relevant information concerned in the first place. The respondents further argued that the publication of the articles complained of was in fact in the public interest.
Mr Justice Fennelly then turned to examine the judgment of Mr Justice Kelly in the High Court delivered on October 4th, 2005, in which he rejected the Tribunal's application. Mr Justice Kelly had said that the Tribunal contended that it had the entitlement to create an obligation of confidentiality in respect of material contained in the brief circulated by it, regardless of the source or nature of the documents or information which it contained. The defendant, on the other hand, contested the power of the Tribunal to direct that documents or information should be confidential, in the manner claimed. Furthermore the defendant said that the documents did not have the necessary quality of confidentiality. The defendant argued that the reliefs sought were not specific enough, because the documentation or information was not readily identifiable. It submitted, in particular, that an order as sought would fetter its constitutional rights pursuant to Article 40.6.1 of the Constitution. Mr Justice Kelly had said that the injunctions were an attempt to restrain an organ of the press from publishing material. Following a review of a number of decisions of the High and Supreme Courts with regard to the interpretation of Article 40.6 of the Constitution and of the European Court of Human Rights regarding Article 10 of the Convention, Mr Justice Kelly had observed;
"This court recognises the cardinal importance of press freedom. Any restriction on it must be proportionate and no more than is necessary to promote the legitimate object of the restriction."
Having reviewed the history of the law in respect of the equitable doctrine of confidence, Mr Justice Kelly concluded:
"The reliefs which I am asked to grant seek to cover all of the material in a brief which the Tribunal has directed should remain confidential. Some of that material was obtained confidentially, some not. Some are public documents, some not. The mere fact that the Tribunal has directed that information or documents should remain confidential does not, in my view, make such documents confidential. The only material which could be capable of protection is that which has the necessary quality of confidence about it. Material which is public property and public knowledge cannot have that quality. No order of the Tribunal can make it so. Some of the material in the brief might well be capable of protection but the injunctive reliefs sought make no such distinction or give any clue in that regard.
Mr Justice Fennelly fully agreed with the judgment of Mr Justice Kelly. The notice of appeal contained 14 grounds. Seven grounds took issue with that part of the High Court judgment which held that the order sought by the Tribunal was overbroad and that there was insufficient information to enable the court to frame an appropriate order so as to protect only "truly confidential material" A number of other grounds complained of; the failure of the High Court to take sufficient account of the right to privacy under the Constitution and under Article 8 of the European Convention of Human Rights to take sufficient account of a citizen's right to protection of his or her good name; failing to find that section 4 of the Official Secrets Act 1963 imports a confidence into material disclosed by the appellant. There was specific complaint that the High Court judge failed to have any or any adequate regard to the qualifications and the right to freedom of expression laid out in Article 10.2 of the European Convention on Human Rights.
Mr Justice Fennelly said that the 1963 Act only provided for criminal sanctions. Mr Justice Fennelly said that the Tribunal's case was expressly based on the claimed confidentiality of documents circulated by it in the interest of permitting affected individuals to vindicate their constitutional rights. Counsel for the Tribunal argued that what was involved was a species of public-interest confidentiality. The public interest consisted in vindicating the good name of individuals as part of its process. It should be in a position to assure all those who engage with it in its work that the information they provide would be used only in the interest of its inquiries and circulated in such a way that their confidence is respected. Counsel accepted the prima facie status of freedom of speech and argued that the issue was where the balance was to be struck. The Tribunal did not dispute that the order it sought would impinge upon the freedom of expression of the defendants and of others affected by the order. Nor did it dispute that it must rely on one of the permitted qualifications of that right.
Mr Justice Fennelly said that what was being sought in the form of an injunction was a general order restraining future publication by the media. That form of order is called prior restraint. Mr Justice Fennelly said that the right to freedom of expression is guaranteed by both the Constitution and by the Convention of Human Rights but that even without those guarantees and simply on the basis of the common law, it is elementary that any party asking a court to impose prior restraint of a publication must justify it. It was further noted that the media are not required to justify publication by reference to any public interest other than that of freedom of expression itself, and that more often than not much of the material which appears in the news media serves no public interest whatever.
In his analysis of the right to freedom of expression Mr Justice Fennelly quoted a passage from the case of R. v Central Independent Television PLC Fam. 192, in which it was held that:
"Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which 'right thinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute".
Before considering whether or not the Tribunal had made a sufficient case to justify prior restraint, Mr Justice Fennelly went on to consider the nature and extent of this right at issue. The wording of Article 40.6.1(i) which guarantees "the right of citizens to express freely their convictions and opinions . . ." was examined. It was noted that the appeal concerned the communication of information rather than opinions. Therefore, Mr Justice Fennelly turned to examine the constitutional origin of the right to communicate. Having considered the caselaw Mr Justice Fennelly concluded that the Constitution unequivocally guarantees both the right to express convictions and opinions and the right to communicate facts or information. These rights are inseparable.
Having established the existence of both rights, Mr Justice Fennelly turned to consider the grounds upon which restrictions of those rights may be justified. Mr Justice Barrington in Murphy v IRTC 1 IR 12, posed the question whether the statutory restriction on broadcasting religious broadcasts was "proportionate to the purpose which the Oireachtas wished to achieve". Mr Justice Fennelly then examined the case law concerning Article 10 of the Convention concluding that the Court of Human Rights has consistently held that any restriction sought must be necessary in a democratic society and that any such restriction must serve a pressing social need. Mr Justice Fennelly concluded his review by approving the test for proportionality as set in the case of Heaney v Ireland 3 IR 593, which held that, any restriction must be rationally connected to the objective and not unfair, that it must impair the right as little as possible and that it must be such that its effect on rights is proportional to the objective.
Mr Justice Fennelly then considered the law of confidence, and set about summarising the relevant case law. In so doing he held that, the information must in fact have been confidential or secret, it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it and that, it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence. The respondent then argued that based on this test and relying on a decision of the Court of Appeal in England in Fraser v Evans 1 OB 349, the appellant was not the proper party to claim confidentiality over the documents and information the subject matter of the claim. With this in mind, Mr Justice Fennelly then turned to consider this argument in more detail, citing the dictum of Lord Keith of Kinkel in the case of Attorney General v Guardian Newspapers 1 AC 109, in which it was held that the Crown has no private life or personal feelings capable of being hurt by the disclosure of confidential information. It was added that in order for the Crown to succeed in preventing such disclosure they would in effect have to show that the disclosure is likely to result in damage or has damaged the public interest. Applying this dictum to the instant appeal, Mr Justice Fennelly concluded that the Tribunal did not fit within the scope of the traditional type of case concerning a breach of confidence between private individuals and if it was to obtain an injunction it must prove detriment to the public interest.
Mr Justice Fennelly did not believe that the Tribunal had established any legal justification for its claim of confidentiality and further added that he agreed with Mr Justice Kelly, who held that he could find no authority statutory or otherwise, express or implied which enabled the Tribunal to create such far reaching confidentiality. Mr Justice Fennelly added that the orders sought at present could only be made on the presumptive and entirely speculative basis that the publication of material circulated by the Tribunal would damage the good name of unnamed and unspecified individuals without any showing whatever on the question of damage. Further Mr Justice Fennelly noted that the Tribunal's claim depended crucially on whether it had the power to impose a requirement of confidentiality on all recipients of its briefs. Mr Justice Fennelly concluded that there was no such express power and that the court could not confer such a power that had not been conferred by law. Accordingly, Mr Justice Fennelly dismissed the appeal.
Mr Justice Geoghegan in his dissenting judgment analysed in detail the various affidavits before the court before turning to the judgment of Mr Justice Kelly in the High Court. Mr Justice Geoghegan took issue with three of the conclusions. The first concerned the idea that when the brief material is circulated all the material contained in the brief is held to be confidential by the Tribunal regardless of the source of such material. Mr Justice Kelly took issue with the fact that a document which was already in the public domain was being held out to be confidential. Mr Justice Geoghegan, however, disputed that this was the intention of the Tribunal, and added that the appellant was only asserting confidentiality over such documents that had been included in a particular brief. Mr Justice Geoghegan regarded this to be reasonable given that a public document could be neutral per se as far as injury to a person's good name is concerned but if transmitted by the Tribunal to some person or persons in a particular context the effect may be quite different. Mr Justice Geoghegan also took issue with Mr Justice Kelly's dismissal of the procedure used by the Tribunal in order to protect the rights of third parties, and concluded that the procedure adopted was one that was sensible and probably necessary to ensure such protection.
When addressing the issues of confidentiality, Mr Justice Geoghegan expressed his disapproval at the criticisms levied at the Tribunal for failing to make a distinction between information obtained by it from a third party, in circumstances where an assurance of confidentiality was given to such a party, and material which is not covered by such an assurance. Mr Justice Geoghegan added that if such distinctions were to be insisted on the object for which the Tribunal purport to impose confidentiality would not be achieved. Further more practical problems would arise if the Tribunal was obliged to sift through the contents and select for confidentiality only those documents in respect of which an express undertaking had been given. Also of note, in this regard, more precise letters would need to be sent out which may well prove time consuming and administratively impractical.
Mr Justice Geoghegan then considered the elements necessary if a case concerning a breach of confidence is to succeed, and proceeded to disagree with Mr Justice Kelly who found that something which is public property and public knowledge cannot per se provide any foundation for proceedings for a breach of confidence. Mr Justice Geoghegan acknowledged that in the instant case the Tribunal was not trying to claim confidentiality over a public document, rather, it was arguing that as the document was contained in a brief, it should be regarded as confidential. This, Mr Justice Geoghegan, considered to be reasonable in all the circumstances and concluded that in the instant case, the Tribunal had satisfied the test for a breach of confidence.
Mr Justice Geoghegan further took issue with Mr Justice Kelly's finding that the information imparted as a matter of fair procedures in order to give advance notice to some person who could be damaged by evidence given at a public hearing did not have the necessary quality of confidence about it. Mr Justice Geoghegan concluded that the trial judge's reasoning was flawed as it was also based on the idea that the brief sent out may include a document which is in the public domain, and went on to hold, that the brief for the most part would consist of copies of statements or documents, that were not yet in the public domain, and were intended by the Tribunal to be kept private until a public hearing for the purposes of overall fairness. For these reasons, Mr Justice Geoghegan was of the opinion that, those copy documents and statements had the necessary quality of confidence about them.
Additionally the obligation of confidentiality, independently of contract, is an equitable obligation. In that regard, Mr Justice Geoghegan was of the opinion that once the respondent had notice of the policy of the Tribunal, and the intention that any documentation sent out to these persons would be kept confidential pending public hearings, it was bound in equity not to flout such confidentiality. Once again Mr Justice Geoghegan held that the policy adopted by the Tribunal was a reasonable one, and added that he could not imagine that the respondent would have the slightest interest in publishing a document already in the public domain unless it could put it into context and that it was this context that the appellant quite reasonably wanted to be kept private until the public hearing.
Mr Justice Geoghegan noted that Mr Justice Kelly's main objection in granting the relief sought in the High Court was that the injunctions sought were overbroad in nature. Whilst acknowledging that the High Court judge was not obliged to facilitate the parties in respect of narrowing the terms of the relief sought, Mr Justice Geoghegan held that, there may have been an expectation of further discussions being permitted with a view to narrowing the relief sought.
Finally, Mr Justice Geoghegan addressed the argument put forward that the Tribunal being a creature of statute does not possess inherent powers to create any element of confidentiality in respect of documents or information, and that, in order for the appellant to have such powers a special enactment in the Tribunals of Inquiries Acts would be required. Mr Justice Geoghegan dismissed these arguments holding that, the Tribunal owes a constitutional obligation to protect those persons who might be adversely affected by evidence likely to emerge at a public hearing. This arises directly from the Constitution and the obligation to adopt fair procedures and to protect the good names of persons involved. Mr Justice Geoghegan, therefore, concluded that the right to impose such confidentiality is merely an element in the carrying out of that constitutional obligation.
In all, Mr Justice Geoghegan was satisfied that the evidence before the court established a history of serious leaking over a number of years by the respondent's newspaper and other newspapers, and that any such "leaks" only served to undermine the work of the Tribunal, and for that reason the appellant had the right to seek an injunction to stop it. Mr Justice Geoghegan said that it was unfortunate that the Tribunal did not place before the High Court an alternative and more precisely worded form of injunctive relief. Mr Justice Geoghegan once again cited the modified form of injunction suggested at the hearing of the appeal and held that he would allow the appeal by setting aside the order of the High Court and substituting for that order an injunction in the revised terms.
The Chief Justice, Mr Justice Murray and Mrs Justice Denham concurred with the judgment of Mr Justice Fennelly. Mr Justice Hardiman concurred with the judgment of Mr Justice Geoghegan.
Solicitors: Marcelle M Gribbin (Dublin) for the appellant; Ronan Daly Jermyn (Cork) for the respondent.
Michèle Rayfus, barrister