Case Comment: Advertising Standards Authority v Mitchell, the Perils of the Misdirected Email – Oscar Davies

3 07 2019

The case of Advertising Standards Authority v Mitchell ([2019] EWHC 1469 (QB)) deals with the problem of a misdirected email.  We have all sent an email to the wrong person, realising only moments after sending it.  Warby J considers the perils of such a situation, and how the court may step in if the receiving party refuses to undertake not to use the information.

Background

An investigating officer of the Advertising Standards Authority (“ASA”),  accidentally sent an email containing legal advice from a partner (Mr Rupert Earle) and from Counsel, to Robert Mitchell – the very person being investigated. The email was meant to go to ASA’s external legal counsel for further legal advice, but in error was sent to Mr Mitchell.

The investigator soon realised his mistake and promptly sent a ‘message recall’ email, and a further one stating that the information in the previous email was confidential, asking for its deletion. A letter was then sent with a draft application notice for an injunction, in the absence of suitable undertakings being provided by Mr Mitchell.

Mr Mitchell responded by email headed “OPEN LETTER in the PUBLIC INTEREST”, which made it clear that he would make none of the requested undertakings. An injunction application was therefore issued by the ASA against Mr Mitchell. Mr Mitchell was not present at the court hearing, as he said that the Court was not the appropriate locus for considering the application and that he was not domiciled in England and Wales.

The ASA argued that the Court had jurisdiction to grant the injunctions sought, and that the contents of the email and attachments were confidential and, in part, legally privileged. Mr Eardley submitted that, subject to certain exceptions and qualifications, Mr Mitchell should be prohibited by injunction from using, publishing, communicating or disclosing all or any part of the email and its attachments. An additional order was sought by the Applicant for disclosure of what Mr Mitchell did with the email, attachments, and the information they contain.

The ASA was unable to serve Mr Mitchell formally because it was unable to identify a service address. He was however told about the hearing and had responded.

Judgment

Warby J considered that Mr Mitchell was domiciled or at least present in England and Wales, and therefore that the English Court had jurisdiction. Further, the legal advice given by Mr Earle and by Counsel in the email was considered plainly confidential in nature, and protected by legal professional privilege.

The court had to consider whether there was a sufficient threat or risk that the respondent would, unless restrained, publish the information. Warby J took a number of factors into account and concluded that there was sufficient risk of publication by Mr Mitchell to justify intervention by the court.

The threshold test for an application of this kind, which seeks pre-trial relief that may restrict the Convention right to freedom of expression, is “that the applicant is likely to establish that publication should not be allowed” (section s.12(3) HRA). Warby J explained the requirement in Linklaters LLP v Mellish [2019] EWHC 177 (QB) [26]:

“This requirement looks forward to the time of a trial, and to what would happen then. “Likely” in this context normally means “more likely than not”, though a lesser prospect of success may suffice where the Court needs a short time to consider evidence/argument, or where the adverse consequences of publication might be extremely serious: Cream Holdings Ltd v Banerjee [2005] 1 AC 253 [16]-[23] (Lord Nicholls); ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329 [2019] EMLR 5 [16].”

Further, the court had to be persuaded that the applicant would establish the three elements of an alleged breach of confidence: first, the information having the necessary quality of confidence about it, second, the information having been imparted in circumstances importing an obligation of confidence, and third, there must be an unauthorised use of that information to the detriment of the party communicating it. There must be no defence or justification for the breach of confidence.  The extent to which the information at issue was already in the public domain, and the extent to which its publication would be in the public interest, must always be considered.

Warby J concluded that, in terms of the merits of the claims in confidence, the ASA would be likely to satisfy a trial Court that the information in the email its attachments were 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 in the email and attachments would represent a breach of confidence [26].

The court also considered the specific strand of authority concerning legally privileged documents disclosed by mistake, sometimes called the Ashburton v Pape jurisdiction (after Lord Ashburton v Pape [1913] 2 Ch 469). Some helpful principles can be drawn:

  1. Where the disclosure is the result of an obvious mistake the Court should ordinarily intervene; there may be exceptions, where the Court could properly refuse relief on other grounds; but the law does not require the Court to engage in a balancing of the public interest in upholding the privilege as against the public interest in allowing the documents to be used in litigation.
  2. When it comes to the imposition of a duty of confidence the law does not approach the recipient of a mistaken disclosure of privileged information any more favourably than one who inadvertently receives or obtains other kinds of confidential information, in other circumstances. Here, the mistake must have been clear on the face of the email – addressed to “Dear Rupert” – and must have been plainly apparent to Mr Mitchell when he received it.
  3. When a public authority is involved it must demonstrate that the use or disclosure which it seeks to restrain would be harmful to the public interest (see the “Spycatcher” case, [1990] 1 AC 109, 258, 270 & 283). In this case it was accepted that he ASA would be likely to succeed at trial in persuading the Court that the identification of the complainant in this case would tend to have a chilling effect on complainants generally, and that this would be inimical to the public interest.

Comment

This case shows how the court can step in to help when an email is mistakenly sent to the wrong party. Whilst injunctions of this sort can be useful in stopping the recipient from disclosing information to other sources, it will not stop the (unintended) recipient from reading its content, which may contain useful strategic information that would ordinarily never be disclosed in an adversarial dispute.

Oscar Davies works at ACK Media Law and will start pupillage in September 2019.


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