One example: ETK v MGN [2011] EWCA Civ 439. The injunction was granted, presumably under s.37(1), to a celebrity with no right to privacy, to protect the alleged human rights not of him but of his children, who were not even a party to the action. This seems to me outrageous: if the children wish to restrict  the paper's freedom of speech, they can be expected at the very least to sue.

Andrew

Which cases on s. 37 (or its equivalents) do you have in mind? If one takes as a starting point the summary given by Nugee J in Holyoake v Candy [2016] EWHC 970 (Ch), at [8], the overall position (if not entirely settled) seems far from a free exercise of judicial discretion. The word "just", as it seems to me, requires a sufficient legal basis for the grant of an injunction in the claimant's favour against the defendant.

If anything, the position seems to me to be more controlled today than in the period before the Judicature Acts during which the Court of Chancery seems to me to have on occasions lost its focus on whether the defendant's conduct was "unconscionable" in law (i.e. prohibited according to the rules of equity) into a free ranging enquiry into what the judge considered to be a "just outcome". The case law on anti-suit injunctions, for example, showed this tendency and this has resulted in problems in the modern era.

Best wishes

Andrew

Professor Andrew Dickinson

Fellow and Tutor in Law

St Catherine's College
Manor Road
Oxford
OX1 3UJ

Tel. +44 (0)1865 281434 / Mobile +44 (0)7881 588871
andrew.dickinson@stcatz.ox.ac.uk

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From: Tettenborn A.M. <a.m.tettenborn@swansea.ac.uk>
Sent: 15 August 2019 08:37
To: Gerard Sadlier <gerard.sadlier@gmail.com>; obligations <obligations@uwo.ca>
Subject: Re: Privilege without Confidentiality in the HCA

 

I agree that it's a bit odd that there should be no confidence here (unless disclosure was in the public interest).

Absent confidence, howeveer, I'm a bit unhappy about granting injunctions to those with no rights to protect or duties to enforce. Injunctions are drastic remedies, involving the judge (as Tony Weir once put it) taking off his wig and donning a helmet; if I'm not breaking a duty owed to anyone I shouldn't on principle be liable to be bossed around. The increasingly wide interpretation attached to s.37 of our Senior Courts Act and its analogues elsewhere is in my view worrying.

I should add that in the European field I'm equally unhappty about the morphing of the ECHR into a sourse of rights against anyone other than the state, and decry the trigger-happy use of injunctions in that connection too. 

Andrew

On 15/08/19 00:32, Gerard Sadlier wrote:

Dear all

Some of you will be aware of the High Court of Australia's judgment in
Glencore International AG v Commissioner of Taxation [2019] HCA 26 (14
August 2019) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2019/26.html

In brief, the applicant sought an injunction to restrain use by the
Commissioner of Taxation of documents over which the applicant claimed
legal professional privilege and which had been disclosed as part of
the so-called Paradise Papers leak.  The applicant argued that
privilege was in itself sufficient to justify the grant of an
injunction and that it did not have to rely on the law of
confidentiality for this purpose.

The Court held the privilege is an immunity, not a right which would
justify the grant of an injunction, in the absence of confidentiality,
which would justify the grant of injunctive relief.

I must confess, with the utmost respect, that I find the reasoning
conclusory at best.  A number of questions do also seem to arise
though:
1. The case was put on the basis that privilege would justify the
grant of injunctive relief, without reference to the law of
confidence. I am sure that I am missing something here but that seems
to me a baffling concession. Whatever one's view of the Paradise
Papers leak, the fact remains that confidential documents were
disclosed without the consent of those like Glencore who had a right
to that confidence. Everyone, including the Commissioner is presumably
aware of how these documents became public. In those circumstances,
why would the Commissioner not be impressed with an obligation to
respect that confidence, as against Glencore, in much the same way as
a third party is obliged by equity not to accept the disclosure of
information which he knows is being provided by an employee in breach
of confidence.  Was there a concern that the Commissioner might
successfully rely on a public interest or statutory defence?

2. Does the HCA's reasoning suggest that a different result would be
reached where privilege is constitutionally protected or guaranteed by
the European Convention on Human Rights? There, arguably at least, it
is in reality a substantive legal right.

3. To ask 1 in another way, how can privilege be claimed at all by a
party who cannot say either that (i) the documents are in fact be
confidential or (ii) the documents should and would be confidential
but for some wrongful act of the other side or of which the other side
is on notice?

Any comments would be most welcome as I have rarely left a judgment of
the HCA so unsatisfied.

Kind regards

GEr

Glencore International AG v Commissioner of Taxation [2019] HCA 26 (14 August 2019) www.austlii.edu.au Australasian Legal Information Institute (AustLII), a joint facility of UTS and UNSW Faculties of Law.

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Andrew Tettenborn Professor of Commercial Law, Swansea University Institute for International Shipping and Trade Law School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Cellphone 07472-708527 / (int) +44-7472-708527 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

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