Introduction

The controversies surrounding the rejection to appoint Prof. Johannes Chan SC as the Pro-Vice-Chancellor of the University of Hong Kong (“HKU”) by the HKU Council (the “Council”) have resulted in a series of leakage of comments made by Council members on Prof. Chan during a confidential meeting which had been secretly taped and published. In response, HKU applied to court for an injunction prohibiting further circulation or publication of any materials or documents of the Council’s meetings (case number: HCMP 2801/2015). Pending trial, an interim injunction has been granted by the Court of First Instance.

HKU’s cause of action: breach of confidence

Civil cause of action

Notwithstanding that the Council had reported to the police for the leakage of the Council’s discussion, HKU’s application for injunction is a civil action between private parties.  There is no (or has not yet been) any criminal procedure involved.

The cause of action underlying HKU’s application for injunction is breach of confidence. Breach of confidence is not statute or contract based; rather, it is a cause of action founded on case law in equity.

Elements and defences

The leading case which sets out the elements for establishing a case of breach of confidence is Coco v A N Clark (Engineers) Ltd [1968] FSR 415. According to the case, three elements have to be proved:

1.        the information must have necessary quality of confidence about it;

2.        that information must have been imparted in circumstances importing an obligation of confidence; and

3.        there must be an unauthorised use of that information to the detriment of the party communicating it.

However, even if each of these three elements can be proved, a claim of breach of confidence may still fail if the defendant can show that he has a defence. An important defence which has been relied upon against the HKU’s claim is the public interest defence. To establish the defence, it is not necessary that the confidential information has to be about crime or misconduct. The court has to balance between the public interest which favours disclosure against the public interest in maintaining confidentiality of the information concerned in deciding whether the defence can succeed. The application of the rule therefore depends on the particular facts and circumstances of a case.

Application of the public interest defence

There are English cases which discussed and applied the public interest defence in the context of media publication of confidential information. For example, in Jockey Club v Buffham [2003] QB 462, the British Broadcasting Corporation (the “BBC") succeeded in varying an injunction to the extent that the BBC was not prohibited from using in its television programme the confidential information that the Jockey Club had been investigated by the government security department. The judge found that “information revealing the existence or apparent existence of wide-scale corruption within racing is of legitimate concern to a large section of the public who either participate in racing or who follow it or who bet on the results of races”.  BBC was therefore allowed to use the confidential information contained in documents it received from a former employee of the Jockey Club who disclosed them in breach of his employment contract.

In particular, the judge in the case said that compared with an ordinary individual, a public authority “may be more readily open to scrutiny by the media even in cases where the scrutiny is based in part on confidential documents belonging to the authority concerned”. Therefore, whether the party seeking protection of confidentiality is a public body serving public function is a relevant factor when the court applies the public interest defence.

With regard to HKU’s claim, however, whether HKU is such a public body has not been discussed in Mr. Justice Godfrey Lam’s written decision on whether the interim injunction should be granted. The discussion was rather on whether the public interest that disclosure should be made outweighs the public interest in maintaining the protection of confidentiality by law. The fact that HKU is a leading tertiary institution was taken to give weight to the public interest of maintaining confidentiality, in terms of ensuring the governing body of HKU to function properly.

HKU’s claim is still ongoing. It therefore seems too early to say whether HKU will be able to prove its case or a defence will succeed defeating the claim. As a matter of fact, even the date of trial has not yet been fixed. In other words, HKU has not yet made out its case that an injunction should be granted as a relief of breach of confidence.

Injunction now in place: interim injunction

HKU has not yet succeeded in its action, so one may wonder why the court has already granted an injunction. The injunction now granted is an interim injunction, which is, as can be known from its name, temporary in nature. The grant is not the final adjudication of the case, but only a temporary measure before the judge gives his judgment after trial hearing.

Though not permanent, an interim injunction still restrains its objects from certain actions or behaviour. A restraint violation of which will render the object committing contempt of court. Therefore, whether an interim injunction should be granted is usually a point of hot dispute in court at the pre-trial stage.

Serious issue to be tried

In determining whether an interim injunction should be granted, the court first considers whether there is a serious issue to be tried, which means that the claim must have some strength and is not frivolous. In granting the interim injunction in favour of HKU, Justice Lam found that the taped discussion of the Council’s meeting could on its face trigger an obligation of confidentiality for two reasons: (1) the emphasis on confidentiality in the Code of the Council, and (2) the taping being surreptitious. He is therefore satisfied with the strength of the claim on its face.

Irreparable damage and balance of convenience

The next matter the court would consider is whether the damage of the breach is irreparable – if the person seeking interim injunction eventually succeeds in obtaining an injunction after trial, will money compensation be sufficient as a remedy of what had continued to be done by the defendant because the interim injunction was not granted? If not or not likely, the court may grant the interim injunction.

Justice Lam found that money compensation to either side of the litigation would not be adequate, but he ruled in favour of HKU, for the reason that damage suffered by HKU in the situation that the interim injunction is not granted but HKU eventually succeeds in its claim will be greater than the damage suffered by the defendants in the situation that the interim injunction is granted but HKU eventually failed in its claim – if HKU fails eventually, media will by then still be able to publicise and report what was banned by the injunction. Furthermore, the Council’s decision of not appointing Prof. Chan is already made and not likely to be changed, so the prejudice suffered by the defendants is less irreparable. This illustrates the “balance of convenience” test in determining whether to grant an interim injunction, a test applied when both sides of the litigation may suffer damage not sufficiently compensable by money.

 

Pending trial

Although the balance between public interest of disclosure and confidentiality has been discussed by Justice Lam in his written decision of granting interim injunction in favour of HKU, the discussion was in the context of the application of laws regarding an interim measure pending trial, which is not conclusive in respect of the core issue of the case – whether the publication of the taped discussion of the Council is a breach of confidence that should be tackled by an injunction. As the date of trial for HKU’s claim has not yet been fixed, the focus and major point of dispute in the present pre-trial stage are what the court should order before and until the judgment of the case is handed down. It could be expected that the public interest defence will be brought out and argued at trial in an elaborated and comprehensive manner, but it takes some time for this final stage to come.

For enquiries, please contact our Litigation & Dispute Resolution Department:

E: ldr@onc.hk                                                                   T: (852) 2810 1212 W: www.onc.hk                                                                F: (852) 2804 6311 19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2015