The Council sought the injunction on the grounds of breach of confidence and/or under section 222 of the Local Government Act 1972. This second ground (which was in the event unsuccessful) raises interesting questions regarding the scope of injunctive relief in the public sector.
In relation to breach of confidence, Mr Justice Newey considered the elements of the claim set out in Coco v A N Clark (Engineers) Ltd [1969] RPC 41, that:
- The information must have the necessary quality of confidence about it;
- The information must be imparted in circumstances imposing an obligation of confidence; and
- There must be an unauthorised use of that information to the detriment of the party communicating it.
Mr Justice Newey decided that these elements had been established and accordingly granted an injunction. The court considered that information regarding the 11+ exam papers was confidential in nature and had not been compromised by limited disclosure to students who had already sat the exam (the exams are taken by students seeking entry to Birmingham grammar schools on multiple dates). Further, the judge stated that public disclosure of this information on the defendant’s website “was plainly unauthorised” and drew attention to correspondence between the Council and the defendant where the Council had made it obvious that it did not want information relating to the exam to be disseminated.
So far this was a relatively routine application of the principles of injunctive relief in the context of a breach of confidence claim.
The second ground on which the injunction was sought was more interesting. The Council argued that the court had a broad jurisdiction to grant an injunction to prevent anyone interfering with it carrying out its statutory duties. In particular, the Council referred to the obiter words of Lord Woolf MR in Broadmoor Special Hospital Authority v Robinson [2000] QB 775:
“if a public body is given a statutory responsibility which it is required to perform in the public interest, then, in the absence of an implication to the contrary in the statute, it has standing to apply to the court for an injunction to prevent interference with its performance of its public responsibilities and the courts should grant such an application when ‘it appears to the court to be just and convenient to do so”.
The Council pointed to section 222 of the Local Government Act 1972, which states that where a local authority considers it expedient for the promotion or protection of the interests of the inhabitants of the area, they may “prosecute or defend or appear in any legal proceedings, and, in the case of civil proceedings, may institute them in their own name”.
They said that this provided the basis for an injunction, having regard to the principle apparently identified by Lord Woolf, and that the defendant’s interference with the administration of the 11+ test constituted an interference with the Council’s general responsibilities pursuant to the Education Act 1996 and the School Standards Framework Act 1998. Accordingly the court should grant injunctive relief to the Council simply to assist it perform its statutory functions.
The court noted that in Birmingham City Council v Shafi [2008] EWCA Civ 1186, Clarke MR and Rix LJ observed that “it has long been recognised that the court’s power to grant relief by way of injunction is to be exercised only in support of some legal or equitable right“. That seems inconsistent with the modern approach (see in particular Cartier International AG and others v British Sky Broadcasting Ltd and others [2014] EWHC 3354 at paragraph 92 onwards which suggests greater flexibility).
Nonetheless, the court doubted that the general duties imposed on the Council could entitle it to injunctive relief against the defendant. However, it did not arrive at a “final conclusion on the point” given that the breach of confidence claim had been successful.
In most cases, public authorities when seeking injunctive relief will doubtless be able to find a traditional cause of action on which to base it. However, the question of whether where there is no such cause of action applicable, they can rely on the court to grant such relief simply to prevent interference with the performance of the public functions remains an open one. Such a development would be consistent with the recent broadening of the power to grant injunctive relief but would also raise serious questions as to the ambit of this approach.
This post originally appeared on The Injunctions Blog and is reproduced with permission and thanks