This judgment is critical reading for public bodies who need to take action to restrain the use of confidential information in circumstances where that information has been inadvertently disclosed to a third party.
This article is taken from February's public matters newsletter. Click here to view more articles from this issue.
On 5 February 2021, the Queen’s Bench Division of the High Court handed down judgment in London Borough of Lambeth v AM (No. 2) [2021] EWHC 186 (QB). Browne Jacobson acted for the claimant council. The judgment is critical reading for public bodies who need to take action to restrain the use of confidential information in circumstances where that information has been inadvertently disclosed to a third party, most likely in response to a request under either the Data Protection Act 2018 or Freedom of Information Act 2000.
By way of brief background, the case concerned a referral made by the defendant’s sister (‘HJ’) to the council’s Children’s Services department in confidence, under condition of anonymity, in respect of the defendant’s daughter. After the referral was eventually closed, the defendant made a Subject Access Request to the council for a copy of the file held by Children’s Services. Unfortunately, the defendant was able to uncover the confidential information that had been redacted by the council simply by copying and pasting the file into Microsoft Word. The defendant thereby discovered HJ’s identity and thereafter threatened to use the confidential information to bring a claim against her for defamation, harassment and various other torts.
The council commenced a claim for breach of confidence seeking to restrain the defendant from using the confidential information. The essential ingredients of the tort of breach of confidence are that: (i) the information is confidential in quality; (ii) it was imparted so as to import an obligation of confidence; (iii) there has been or will be an unauthorised use of that information to the detriment of the party communicating it: see Coco v Clark [1968] FSR 415. An interim injunction was obtained and, following several interim hearings, the matter was set down for an eight day trial before Mr Justice Pepperall in July 2020. The defendant sought to argue that even if the tort of breach of confidence was made out, he relied on the public interest of iniquity on the basis that his sister had been acting with malice when making the referral and the council had been a ‘bad actor’ because of the way it had assessed the referral and handled his personal data (the latter argument was struck out at an interim hearing).
In a detailed judgment, Mr Justice Pepperall held that:
For these reasons, the court concluded that the council was entitled to final injunctive relief to prevent the defendant from using the confidential information.
Breach of confidence is a complex area of the law. However, the important lesson for public bodies is that there are steps that can be taken to protect confidential information when such information has been disclosed to a third party either by mistake or due to the improper conduct of a third party.
Our public law law team frequently advises public bodies in respect of breaches of confidentiality, and its lawyers are experienced in liaising with the Information Commissioner and police in respect of possible criminal offences and commencing civil proceedings to restrain the unlawful use of confidential information. Please contact us with any questions about the High Court’s judgment or to discuss what steps you should take in a particular case where a breach of confidentiality has occurred.
Senior Associate
matthew.alderton@brownejacobson.com
+44 (0)330 045 2747