HomeInsightsHigh Court continues interim non-disclosure order in relation to private, commercially sensitive information overheard during business negotiations

Article by

Clearcourse Partnership issued proceedings against Manoj Jethwa for breach of confidence, misuse of private information and breach of data protection legislation in relation to what it said were improper threats made by Mr Jethwa to disclose the content of private conversations between Clearcourse and others in relation to commercial negotiations that Mr Jethwa had overheard (from another room) and of which he had taken a screenshot from the building’s CCTV system, during a meeting in relation to negotiations of a share purchase agreement (SPA).

Following a without notice hearing, Mrs Justice Stacey granted an interim non-disclosure order (INDO) restraining disclosure of such private conversation (and any recordings of them). Clearcourse sought continuation of the INDO. Mr Jethwa said that the INDO should never have been granted.

In terms of the facts, Mr Justice Saini found that:

  1. Mr Jethwa had made some form of threat of disclosure to a third party of something adverse to Clearcourse that was embarrassing or commercially sensitive;
  2. the material that Mr Jethwa threatened to disclose consisted of things said between two representatives of companies involved in the SPA negotiations while Mr Jethwa was out of the room; and
  3. Mr Jethwa had showed Clearcourse the screenshot he had obtained from the CCTV in order to provide an evidential basis for the discussion that he threatened to disclose and was a way of making the threat appear cogent and serious.

As for the breach of confidence claim, Saini J found that:

  1. a reasonable person would understand a conversation behind closed doors to be private and confidential;
  2. the subject matter of the conversations attracted confidentiality and Mr Jethwa knew this;
  3. Clearcourse had sufficiently defined the confidential information in its pleading and was likely to succeed at trial in showing that this was what was discussed and overheard by Mr Jethwa;
  4. disclosure of the private conversations would be detrimental to Clearcourse;
  5. there was no public interest in disclosure of the information and a clear public interest in protecting the confidentiality of private and commercially sensitive conversations;
  6. the nature of the threat of disclosure had not changed since the hearing before Stacey J, at which she had accepted that Mr Jethwa’s threat was real; and
  7. Clearcourse was therefore likely to succeed at trial.

As for misuse of private information, Saini J found that:

  1. the overheard conversation, behind closed doors, gave rise to a reasonable expectation of privacy;
  2. disclosure of the private information did not make any contribution to a debate of general interest, nor was there any other realistic justification for it;
  3. although the freedom of expression rights of Mr Jethwa had to be weighed against Clearcourse’s privacy rights, Mr Jethwa’s rights in these circumstances were limited; and
  4. therefore, the claim in misuse of private information was more likely than not to succeed at trial.

As for breach of the GDPR, Saini J held that:

  1. the screenshot contained the personal information of the representatives involved in the conversations, which had been compiled and retained without their consent or on the basis of any other legitimate interest of Mr Jethwa; and
  2. the GDPR claim was likely to succeed at trial.

Saini J said that the court’s discretion fell to be exercised to restrain disclosure and he held that the injunction should continue, albeit in a slightly modified form in which the information protected was defined more narrowly. (Clearcourse Partnership v Manoj Jethwa [2022] EWHC 1199 (QB) (16 May 2022) — to read the judgment in full, click here).

Expertise