REPUTATION UPDATE: HIGH COURT REFUSES INJUNCTION TO MAINTAIN CONFIDENCE IN PRICING DISCOUNTS ON GROUNDS OF PUBLIC INTEREST

Posted: July 23, 2020

In this recent breach of confidence judgment, Miles J refused to award an injunction to the Claimants restraining the Defendants from publishing an allegedly confidential discount offered by the Claimants to its long-term customers (Discount), on the basis that the public interest in publication outweighed the public interest in preservation of confidence.

The Claimants are producers of iron ore based in Australia, who offered their customers a discount as part of a formula for pricing sales.  The Defendants are English and American price reporting agencies, supplying to their readers news about commodities markets, as well as compiling indices of current market prices for (among other things) iron ore.  The Defendants had regularly reported on the Discount since 2014 without any action being taken by the Claimants.

However, in late 2019 or early 2020, the Claimants sought to take steps to enforce the confidentiality in the Discount, on the basis that they had switched from selling via intermediaries, where the Discount had been used to determine provisional prices, to direct sales, where the Discount formed part of the final pricing formulae.  The Defendants refuted that the Discount was confidential and refused to give the Claimants undertakings that they would not publish it, and accordingly the Claimants applied for an injunction to restrain publication.

Applying the test in section 12(3) of the Human Rights Act 1998 (HRA), Mr Justice Miles held that the Claimants were more likely than not to demonstrate at trial that the information was confidential.  Following the test in Coco v Clark, Miles J held that the Discount (1) had the necessary quality of confidence, given it was supplied only to a limited class of customers for a specific purpose, and (2) was imparted with confidence, by virtue of the contractual confidentiality provisions and email notices put in place by the Claimants to protect its confidentiality.

However, under section 12(4) of the HRA, the Court is required to have regard to the extent to which publication would be in the public interest.  This involves a balancing test between the competing public interests in, on the one hand, upholding obligations of confidence and, on the other, publication of the confidential information.  The factors considered in conducting this balancing act are “highly sensitive to the facts” but include the value of the information to the public, the nature of the specific duty of confidence and the importance in upholding it.

Mr Justice Miles held that there is an “important and weighty public interest” in publications like the Defendants providing well-informed analysis and data to the public about the iron ore markets, and an injunction here would prevent the Defendants from using a “significant source of data”.  He considered too the importance in a democratic society of the press having access to a wide range of data points and using their own editorial judgments.

The significant period of inaction by the Claimants did not, in Miles J’s view, suggest that confidentiality was particularly important to them during that period.  He was not convinced by their argument that disclosure of the Discounts would lead to undercutting by the Claimants’ competitors, and, although he accepted the importance of upholding confidentiality in bilateral commercial transactions to facilitate open negotiation, in this case the Discount was a generic figure, not a negotiated one.  For these reasons, the Claimants’ application was refused.

Fortescue Metals Group & anor v (1) Argus Media Ltd (2) S&P Global Inc [2020] EWHC 1304 (Ch)

Jon Oakley, Partner, Simkins LLP

Thomas Moore, Associate Solicitor, Simkins LLP