Ambrosiadou v Coward [2010] EWHC 1794 (QB)

[2010] EWHC 1794 (QB)Case No HQ10X02210
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 July 2010
Before
THE HONOURABLE MR JUSTICE EADY
Between
ELENA AMBROSIADOUClaimantMARTIN COWARDDefendant
Richard Spearman QC, Mark Warby QC and Justin Rushbrooke (instructed by Schillings) for ClaimantDesmond Browne QC and William Bennett (instructed by Hogan Lovells International LLP) for DefendantHearing Hearing dates: 21-22 June 2010
Judgment
[1]On 4 June 2010, at some point after 9 p.m., Maddison J granted the Claimant an injunction against her husband in these terms:
“Until after the Return Date or further Order of the Court in the meantime: (1) The Respondent must not deal with or part with possession of the following documents or any of the them (‘the Documents’) (save by delivering the Documents up to the Applicant’s solicitors and save to the extent provided by paragraph 7 below): (a) the Petition of the Applicant, the Counterclaim of the Respondent, and the Respondent’s application for provisional measures dated 19 May 2010 in the divorce proceedings in Greece between the Applicant and the Respondent (‘the Divorce Proceedings’); (b) any other documents filed or served in the Divorce Proceedings or which relate to the Divorce Proceedings or which have been brought into existence as a result of the Divorce Proceedings including without limiting the generality of the foregoing the originals or copies of or extracts from any applications, witness statements, affidavits, orders, judgments, transcripts of hearings, correspondence and the ‘bunch of papers filed in a Greek Court last week by Martin Coward’ which are referred to in the email dated 1 June 2010 (sent at about 15.04 pm) from Louise Armitstead of the Telegraph to Gill Ackers; and (2) The Respondent must not use and must not publish or communicate or disclose to any other person (other than (i) by way of disclosure to legal advisers instructed in relation to these proceedings for the purpose of obtaining legal advice in relation to these proceedings or (ii) for the purpose of carrying this Order into effect) any information or claims extracted or derived from the Documents or any of them PROVIDED ALWAYS that nothing in this paragraph of this Order shall be taken to either prevent or allow the Respondent to use publish communicate or disclose information or claims which he possesses independently of the contents of the Documents; and (3) The Respondent must not cause or authorise any other person, firm or company to do any of those acts. PROVIDED ALWAYS THAT the above prohibitions shall not apply if and to the extent that at the date of this Order or at any time hereafter the Documents or any of them are or become generally accessible to the public other than as a result of a breach of this Order or a breach of confidence or privacy on the part of any person (including for the avoidance of doubt any distribution to Bell Yard of the Documents).”
The matter came before me on the return date and was argued on 21 and 22 June. The original injunction was extended until the handing down of this judgment. On 8 July, the date originally intended for the hand down, I heard submissions from the parties as to how much detail should be included in the judgment and there was a postponement, with a further extension of the injunction to cover the period until an application for permission to appeal was determined. (a) the Petition of the Applicant, the Counterclaim of the Respondent, and the Respondent’s application for provisional measures dated 19 May 2010 in the divorce proceedings in Greece between the Applicant and the Respondent (‘the Divorce Proceedings’); (b) any other documents filed or served in the Divorce Proceedings or which relate to the Divorce Proceedings or which have been brought into existence as a result of the Divorce Proceedings including without limiting the generality of the foregoing the originals or copies of or extracts from any applications, witness statements, affidavits, orders, judgments, transcripts of hearings, correspondence and the ‘bunch of papers filed in a Greek Court last week by Martin Coward’ which are referred to in the email dated 1 June 2010 (sent at about 15.04 pm) from Louise Armitstead of the Telegraph to Gill Ackers; and PROVIDED ALWAYS that nothing in this paragraph of this Order shall be taken to either prevent or allow the Respondent to use publish communicate or disclose information or claims which he possesses independently of the contents of the Documents; and PROVIDED ALWAYS THAT the above prohibitions shall not apply if and to the extent that at the date of this Order or at any time hereafter the Documents or any of them are or become generally accessible to the public other than as a result of a breach of this Order or a breach of confidence or privacy on the part of any person (including for the avoidance of doubt any distribution to Bell Yard of the Documents).”[2]As will have become apparent from the terms of the order itself, the parties are husband and wife and are currently engaged in contested divorce proceedings (both in Greece and in Monaco). There is a 13-year-old son of the marriage and one of the important aspects of the Defendant’s application in Greece, which was heard in part on 27 May 2010, was concerned with protecting the best interests of the son.[3]As it happens, the parties are also closely linked in relation to a hedge fund business to which they have both devoted many years of their lives. IKOS CIF Ltd is a company incorporated under the laws of Cyprus in which they worked together until last year. It was founded in 1992 and proved to be very successful. Since 2005 it has carried on business from Cyprus and in 2007 it was valued, according to the Defendant, at one billion dollars. On 23 December 2008 the Claimant summarily dismissed the Defendant’s IKOS research team. Two of its members had been responsible, together with the Defendant, for designing and operating the trading systems. This act was apparently the casus belli so far as the marriage was concerned. The Defendant only discovered what had happened three days afterwards.[4]In the aftermath of the events in December 2008, the Claimant began divorce proceedings in Thessaloniki on 23 April 2009. As Maddison J’s order records, the Defendant counterclaimed in those proceedings on 28 January of this year. Shortly before that, on 19 January, the Claimant had begun a second set of divorce proceedings in Monaco.[5]The parties appear to be agreed that the matrimonial proceedings and their business affairs are inextricably linked. The Claimant remains chief executive officer of IKOS. In the Defendant’s witness statement, he describes how the business relationship also impacts upon the son’s affairs. He suggests that steps need to be taken in relation to the son’s trust fund, most of which has been concentrated in IKOS.[6]The Defendant’s application notice in the Greek proceedings dated 19 May 2010, to which reference is made in Maddison J’s order of 4 June, sought provisional measures concerning such matters as contact with the son, his education and the management of his financial affairs.[7]An order was made on 27 May at a relatively brief hearing, dealing with contact and other matters. The detail does not need to be set out for present purposes.[8]I was told that a further hearing of the Defendant’s application was due to take place in Thessaloniki on 23 June (i.e. the day after the hearing before me concluded). After the hearing, I was informed as to what had taken place. It seems that the substantive issues went off to a date in October – primarily because of a lawyers’ strike in Greece. The order of 27 May was varied in certain respects. I entertained further evidence as to the status of those proceedings, which grew somewhat heated, as the parties were vehemently disagreeing as to whether the earlier hearing took place in private and as to the extent of privacy attaching to court papers. I understand that the hearing on 23 June was itself in public. This is likely to be so in relation to future hearings also, unless an order is made to the contrary.[9]Mr Browne QC, for the Defendant, highlights the first of the two provisos in the order made by Maddison J, arguing that this undermines the main thrust of the order itself and renders it pointless. It is said that the restrictions could be circumvented by simply publishing material from the Defendant’s own recollection and sources without using the vehicle of the Greek court documents.[10]Mr Spearman QC, on behalf of the Claimant, does not attempt to obtain any restriction upon the publication or use by the Defendant of information already available to him. As he explained to Maddison J, he had no evidence of any threat or intention on the Defendant’s part with regard to publishing any information save by means of the court documents. He pointed out to the court that at no time between handing in his resignation letter, on or about 11 December 2009, and the present time has there been any evidence of publication by any other route. Mr Spearman does not, of course, concede that the Defendant would be entitled to breach obligations of confidence by any means at all. He simply recognises that he had no evidence of an apprehended breach such as to justify applying to the court for interim injunctive relief – save in respect of the use of court documents from the Greek proceedings.[11]It is quite possible that the Defendant believed, perhaps on legal advice, that if the matters he wished to canvass in public were mentioned in open court, whether in Greece or elsewhere, they could then be reported and referred to in public without his incurring legal liability (whether for libel or breach of confidence). If that is so, this could be the reason for the Defendant’s silence over many months and would rather suggest that the injunction, far from being pointless, would have the effect of depriving him of the only route to publishing the controversial information of which he intends to avail himself.[12]Indeed, it is Mr Spearman’s suggestion that the Defendant in his application notice of 19 May, before the court in Thessaloniki, adopted the device of including matters that were largely irrelevant to the substance of the application purely because he wanted to get them into the public domain. In particular, he set out in the body of his application notice a memorandum sent to the board of IKOS on 9 December and also his resignation letter of 11 December 2009. There were also a number of allegations (which are denied) about the Claimant’s conduct in relation to the business. Obviously, at this stage, it is not possible to come to a final conclusion as to whether Mr Spearman’s allegation is well founded.[13]His suggestion is that the Defendant wanted, for one reason or another, to publish this material and had hitherto refrained from doing so because he believed that he would thereby be in breach of a duty of confidence owed to the company. Another possible consideration was the risk of being sued for libel. On the other hand, once the material entered the public domain, via the route of court proceedings, the Defendant may have been of the opinion that the information would lose its confidential quality and/or that it could be reported under the cloak of privilege – notwithstanding the fact that it had come about at his own instigation.[14]Some support for Mr Spearman’s interpretation of events is to be found in the recent conduct of the Defendant and his advisers. On 4 June, for example, when the Claimant’s solicitors sought to reach agreement and thus to avoid the hearing later that day, they appear to have jumped the gun by supplying the information to a number of media organisations so as to defeat her objective (although the application notice was itself heavily redacted). The statement put out on the Defendant’s behalf by his publicist that day included the following claims:
“ … I have refrained from commenting in detail either to my former clients or to the media. Last week, however, an open court hearing in Greece reviewed the text of my resignation letter, among other matters, effectively making this information public.”
In view of the limited nature of the court hearing on 27 May, and of its consequent order, I find it difficult to understand in what sense it could truly be claimed that the resignation letter had been “reviewed” in open court.[15]Moreover, as emerged from disclosures made pursuant to Maddison J’s order, Hogan Lovells had sent a Daily Telegraph journalist the application notice of 19 May, together with the two December documents, and suggested that it should all be given coverage under the guise of “court papers obtained by the Daily Telegraph”. Hogan Lovells and the relevant partner, Mr Grierson, did not wish to be revealed as the source. Indeed, it was expressly stated that “We’d like to be completely invisible”. That is hardly surprising.[16]Although the Defendant claims that he wished to put the material into the public domain because of “media interest” in the circumstances of his departure, there is very little evidence of such interest. Mr Spearman suggests that this was not a genuine reason.[17]He suspects that there is a clue to the Defendant’s true agenda to be found in a text message he sent to the Claimant on 6 June of this year. The Claimant had complained to him that he had “shamed” her in a press article. In his response, the Defendant said:
“I didn’t like the article either. I’d like to work with you to limit publicity, but it’s inevitable unless we settle all these issues. … ”
That, says Mr Spearman, rather looks as though he is using publicity or the threat of it as a way of achieving settlement. I could not come to a conclusion about this on the papers and it is unnecessary to do so.[18]Much attention was focused, both before Maddison J and before me, upon expert evidence as to whether or not the hearing of the interim application before the Greek court on 27 May 2010 should be regarded as open or closed court proceedings. The Defendant’s experts assert clearly that, according to Greek law and practice, it would be regarded as taking place in public (whether or not actually attended by members of the public), whereas the Claimant’s witnesses contend the opposite. Mr Browne invites me to accept his client’s expert evidence and to conclude that the documents in question had thereby entered the public arena and lost, at a stroke, any quality of confidence they might previously have had.[19]This submission would apparently extend even to such matters as the Defendant himself had chosen to redact from his application notice, prior to releasing it to the media, including personal material about the parties’ marriage and the circumstances of their 13-year-old son and, in particular, his substantial assets. As Mr Spearman points out, that has to be the logical conclusion of Mr Browne’s argument. At all events, Mr Browne submits in the light of the expert evidence, at the very least, that the Claimant cannot succeed in showing that she is “likely” to obtain a permanent injunction at trial: see s.12(3) of the Human Rights Act 1998 and Cream Holdings Ltd v Banerjee [2005] 1 AC 253.[20]By contrast, Mr Spearman submits that even if the court hearing on 27 May was technically a public one, this fact would not of itself determine the present application. He suggests that this is an artificial and technical approach: the quality of confidence would not for that reason have been irretrievably lost. It would be for the court to assess how much the material had truly become public – as opposed to the purely theoretical position. It would be appropriate to have in mind the analysis adopted by Lord Goff in Att.-Gen. v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109. The court should consider whether it was really the position that there was nothing confidential left to protect: see also the discussion in Att.-Gen. v Greater Manchester Newspapers Ltd (2001) 145 SJLB 279 at [28]-[33].[21]The issue of the openness of court proceedings was addressed a few years ago in this jurisdiction through amendments to the CPR. It is now provided, for example, that the confidentiality of documents obtained on disclosure must be respected until such time as they are referred to in open court – subject to a judge, for good reason, continuing the restriction: see CPR 31.22. The position is thus “all or nothing”. Once any document has been referred to in court, even though tangentially, there is a presumption of public accessibility. So too, in CPR 39.2(1) it is provided that the general rule is that a hearing is to be in public. An order may be made, however, derogating from that general rule, that a hearing take place in private on specified grounds. These rules at least have the merit of clarity. Unfortunately, it would seem that in Greece the position cannot be so definitively stated.[22]It is necessary to remember that the only claimant in these proceedings is Ms Ambrosiadou. The company has not brought proceedings in this jurisdiction and, if it be the case that the two key documents of 9 and 11 December 2009 were subject to a duty of confidence, it is most likely that the duty was owed to the company rather than to Ms Ambrosiadou. On the other hand, proceedings were brought by the company in Cyprus, where an injunction was obtained on 23 December 2009 to protect its confidentiality. That order has subsequently been registered here and would be enforceable in accordance with the Judgments Regulation and the Civil Jurisdiction and Judgments Order (SI 2001 No. 3929) (but at the suit, presumably, of the company itself).[23]Mr Browne’s response is that it is not relevant for present purposes, since there is no need for this court to replicate the relief already obtained in Cyprus – still less so if IKOS is not a party. Nothing I do can, or should, in any way undermine the effectiveness of the Cypriot injunction. Conversely, that order cannot be determinative of the extent of this Claimant’s remedies in English proceedings. Thus, for example, if I were persuaded that it would not be appropriate to grant her an order preventing disclosure of the memorandum or resignation letter, that would not impact at all on the company’s rights, one way or the other, to enforce confidentiality by means of the Cypriot injunction. I understand, as it happens, that Mr Spearman told Maddison J on 4 June that the Claimant was not seeking to prevent the Defendant from publishing those documents in any event.[24]It seems remarkable that the distinguished experts in Greek law and procedure who have been assembled on either side are so diametrically opposed on the simple question of whether the hearing of 27 May was public or private. My attention was drawn to provisions of the Greek Constitution, to the procedural rules contained in Articles 112, 113 and 691 of the Civil Code, and to relevant case law. That is all obviously against the background that Greece, like the United Kingdom, has to achieve compliance with the values to be found in Articles 6 and 8 of the European Convention on Human Rights and Fundamental Freedoms.[25]Reference was made to Article 93 of the Constitution:
“1. Courts are distinguished into administrative, civil and criminal courts, and they are organised by special statutes. 2. The sittings of all courts shall be public, except where the court decides that publicity would be detrimental to moral principles or that special reasons call for the protection of the private or family life of the litigants. 3. Every court judgment must be specifically and thoroughly reasoned and must be pronounced in a public sitting. Publication of the dissenting opinion shall be compulsory. Law shall specify matters concerning the entry of any dissenting opinion into the minutes as well as the conditions and prerequisites for the publicity thereof. 4. The courts shall be bound not to apply a statute whose content is contrary to the Constitution.”
[26]None of these provisions is in any way unexpected. What is perhaps more surprising, to an outsider, is that the hearing which took place on 27 May should be deemed, according to the Claimant’s expert witnesses, to be other than a judicial sitting. It seems that only a limited part of Defendant’s application was dealt with; namely, para 7, which was concerned with the issues relating to the son. On that occasion, a temporary order was made to which I have already referred (at paragraph [7] above). An order made in England, dealing with such matters, would certainly be classified as a judicial act. It was said, however, by one of the Defendant’s experts, Mr Kloukinas, that there has long been debate in Greece as to whether a provisional order is to be characterised as an “act of the court” or a “judicial decision”. The only difference, according to him, is whether reasons need to be given. In either case, however, the proceedings would still be regarded as taking place in public (unless the court has made a specific order for a private hearing).[27]I shall return in due course to the conflicting expert evidence, but I do not regard the outcome as determinative of the issue I have to decide. I have an obligation in any event, so it seems to me, to address and balance the competing Convention rights on the facts of this case: see e.g. Re S (A Child) [2005] 1 AC 593.[28]Mr Spearman has submitted that this is a case of “old-fashioned” breach of confidence, as it is sometimes now called: see e.g. McKennitt v Ash [2008] QB 73 at [8]. That is to say, it is concerned with a duty owed to the Claimant in equity (or possibly with a duty owed to the company in contract) – as opposed to the more recently developed cause of action deriving largely from Campbell v MGN Ltd [2004] 2 AC 457. Sometimes, of course, facts arise which are capable of analysis in accordance with either of these forms of action: see e.g. McKennitt v Ash, cited above, and HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch 57. In this case, the classification may not matter greatly, but the court needs to take account of various competing rights.[29]Of particular significance in this case are the interests of the 13-year-old son. His rights under Article 8 of the Convention certainly need to be borne in mind throughout – even though he is not a party to this litigation. He has made his own position clear in an email to his parents on 13 June 2010. Quite simply, he does not want all those matters canvassed in public. That is not surprising. There is no reason to suppose that his true sentiments have not been accurately reflected in that email.[30]Even if it is the position under Greek Law that the hearing of 27 May took place in public, whether substantively or only technically, this court would still have a responsibility to balance the son’s rights of privacy against those of other relevant persons – and, in particular, those of the Defendant under Article 10.[31]It is quite true that the Defendant has made clear that he has no wish to publish private family matters, and specifically anything private concerning his son, but I am invited by him to take a view of Greek law and procedure that would have a potentially significant impact on those rights. I do not intend to take any step that would have the effect of undermining them. His privacy should not simply depend on how much of the application notice the father chooses to redact. Whatever the position may be according to Greek law, nothing has so far occurred that has resulted in the boy’s private affairs entering the public domain. It cannot be said, therefore, “that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential”: see the observations of Lord Goff in Att.-Gen. v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282C.[32]I propose to focus my attention on the various categories of information before me rather than confine it to the single document that is the Defendant’s Greek application notice of 19 May 2010.[33]Just as it must be right for me to take into account the rights of the son, so too, submits Mr Spearman, it would be appropriate for me also to pay due regard to those of the company IKOS. It may seem surprising that a corporate entity could be accorded rights of privacy and the law may not yet be clearly defined in this respect: see e.g. Clayton & Tomlinson, The Law of Human Rights (2nd edn) at 22.22. Certainly, so far as individuals are concerned, their business activities would not necessarily fall outside the scope of Article 8 protection: see e.g. Niemetz v Germany (1992) 16 EHRR 97 and Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103 at [34] – [36]. Each case has to be judged on its own facts. On the other hand, companies’ rights of confidentiality will usually be governed in this jurisdiction by the equitable principles of “old-fashioned” breach of confidence or by specific contractual provisions.[34]It is an unusual scenario in which the court is asked to weigh up the confidentiality rights of a (foreign) corporate entity against those of an individual under Article 10 of the Convention, especially in circumstances where(i) the company is not a party before the court or present in the jurisdiction and(ii) its rights are already protected by a foreign injunction registered here. It should at least be clear that no order I make in these proceedings can have, or is intended to have, any effect on the rights of the company under the relevant foreign law, or under contract, or under the injunction granted in Cyprus. Whatever order I make, the Defendant must still comply with any outstanding obligations he may have in those respects. He will no doubt take advice accordingly.[35]On 4 June, Maddison J was confronted by limited expert evidence which led him to the conclusion that the Claimant’s case was “more compelling”; that is to say, that on the available evidence he thought it more likely than not that the 27 May hearing was in private. One factor in his reasoning was that it had taken place in the judge’s private room.[36]The evidential position before me was significantly different. Each side produced expert reports. The Defendant relied on evidence from Charilaos Kloukinas, who has recently retired from the Athens Court of Appeal. He has many years of judicial experience in Greece both at first instance and at the appellate level. He stated that hearings for “provisional orders”, embracing what would here be referred to as interlocutory injunctions, are heard in public under Article 113 of the Civil Code, which requires that all civil court hearings are conducted in public. He goes so far as to say that he has never known any such hearing take place in private and attaches considerable weight to the absence of any order for privacy or restricted access (e.g. for the protection of “private or family life”, in accordance with Article 93(2) of the Constitution). Had any such order been made, he would have expected to find it in the annotations made by the court on the application notice itself. (That corresponds broadly with the traditional practice of the Queen’s Bench masters in endorsing their orders upon the summons or application notice.)[37]Furthermore, the witness states clearly that “provisional order” hearings, even though public, would usually take place in the judge’s chambers. This is not an indicator in itself that such a hearing is other than a public one under Article 113. It is, as one would expect, the substantive nature of the hearing that matters rather than the location in which it happens to take place.[38]These authoritative statements as to the general practice under Greek law are supplemented by factual evidence, from both sides, about the specific hearing in this case. The Defendant relies upon evidence from Mr Grierson, his solicitor, who was actually present. There is scope for differences of recollection and interpretation of what took place, but his account is to the effect that the judge’s door was only closed because of the level of noise in the corridor outside and that, in any event, people came and went in the course of the hearing (i.e. people unconnected with the case).[39]Although such evidence is entirely consistent with Mr Kloukinas’ expert report, it is preferable at this stage to concentrate on the experts because, although none of the witnesses have been tested in cross-examination, I believe that disadvantage to be of less significance in the case of the experts. Their evidence can, to an extent, more easily be assessed by reference to the reasoning on the face of their reports and less, if anything, turns on recollection of events.[40]The Defendant has adduced evidence from two other experts with academic backgrounds, Professor George Orphanides and Professor Pelayia Yessiou-Faltsi. Both are civil law proceduralists and each gives evidence that is consistent with Mr Kloukinas’ report. There is no need to rehearse them in this judgment.[41]The Claimant relies on the evidence of Professor Stavros Tsakyrakis, an expert in constitutional law, and Professor Evangelos Vassilakakis, who has a chair in private international law.[42]Professor Tsakyrakis states that hearings for interim relief do not take place at a public sitting. It is for the judge to determine the time and place of any such hearing, although that in itself would not necessarily matter, since it is the substantive nature of the hearing that counts rather than the location. He primarily relies, however, on the provisions of Article 112 of the Civil Code which states that “out of open court proceedings” are not public (something of a tautology). He asserts that applications for interim relief fall within that category; and that an order for interim relief, because of its “exceptional and urgent character”, does not constitute “the authentic judgment of the case in dispute”. It is not “an ordinary judicial ruling”.[43]He also states, although this is disputed, that on 27 May “the judge did not allow the presence of any witnesses or third persons”. He places weight on the fact that the door was closed “so as to secure the absolute privacy of the procedure” (i.e. deliberately).[44]As to the Defendant’s application notice of 19 May, Professor Tsakyrakis expresses the view that it should not be made publicly available and that, normally, only the litigants would be allowed access to it. He cites in support Article 22, paragraph 2, of Law 1756/1988 and explains why this involves no infringement of Article 93(3) of the Constitution (cited above). In his view, an order for interim relief simply does not constitute a “court ruling” in that context.[45]Furthermore, the Professor prays in aid the recent decision No 17/2009 of the National Court of Cassation to the effect that such an interim order “ … is not a court judgment, since it does not contain any authentic judgment of the case in dispute”. It is neither pronounced in a public sitting nor promulgated publicly – as would be required for a valid decision. Mr Kloukinas is apparently very familiar with the decision and denies that it supports the Claimant’s proposition.[46]Professor Tsakyrakis also sought to explain the theoretical basis for his approach by reference to Kranis, Functional Structures of the Interim Measures Procedure, Greek Justice 44, p.1234, and Apalagaki, Conservative Mortgage, 2005, p.163. It seems that an order for interim measures is characterised as an “imperfect expression of the judicial task” and thus not equated to a judicial decision.[47]Professor Vassilakakis seems to focus on the right of access to documents by third parties and upon whether in fact there were members of the public present on 27 May. But none of this is especially helpful. In particular, it is more important to focus on whether the Defendant himself has the right to publicise the content of his application notice as a matter of Greek law. Both Professor Orphanides and Professor Yessiou-Faltsi appear to take the unequivocal view that he does.[48]I also had before me evidence in reply, adduced on behalf of the Claimant, from Professor Antonis Manitakis and Professor John Spyridakis, as well as a response from Professor Tsakyrakis.[49]The state of the Greek expert evidence before me is, I am afraid, inconclusive. I would not be able to come to a definitive conclusion without further explanation in oral evidence and cross-examination, but it seems clear at least that the Claimant is unable at this stage to establish that it is “likely” that she will demonstrate at trial that the proceedings on 27 May in general, and the application notice in particular, were and should remain private. As I have already explained, however, that is not the end of the matter. The critical question for the purposes of s.12(3) of the Human Rights Act is whether she would be likely to obtain injunctive relief at trial. That is not a matter defined exclusively by reference to Greek procedural law.[50]I record that argument was also directed at the status of a different Greek hearing on 7 June 2010. This concerned an application relating to a private aircraft. There was conflicting evidence about whether a journalist friend of the Claimant was excluded by the Judge, on grounds of privacy, or whether she was merely told that her assistance was not required and left of her own accord. I did not find that those discussions did much to advance the present debate.[51]If I apprehended a real risk that private matters, whether concerning the marriage and the parties’ purely personal relations, or any of the son’s private affairs, were to be publicised by the Defendant, I would have no hesitation in granting an injunction to protect that information – simply by way of carrying out the “ultimate balancing exercise” required as between competing Convention rights.[52]As it happens, I take the view, in accordance with the stance taken by Mr Spearman both before me and before Maddison J, that there is no likelihood that the Defendant will seek to publicise the matters he attempted to redact from his application notice. There is evidence that his redaction was not entirely successful. He has given an assurance, however, that in any further publication the redaction would be complete. At all events, there has been no argument advanced to the effect that there is a public interest in respect of the redacted material which would override the privacy rights of the Claimant or the son. Nor can it be said that it has genuinely entered the public domain.[53]On the other hand, so far as the company documents of December 2009 are concerned, I can see no reason for this court to prohibit the Defendant from making those public if he sees fit. As I have said, IKOS is not a party to these proceedings and has already taken its own steps to protect the confidentiality of its information and documents by obtaining an injunction last December in Cyprus.[54]I hasten to add that the mere fact that I am refusing to grant an injunction in these proceedings in respect of IKOS documents should not be construed in any sense as a “go ahead” for publication of confidential material. Whatever the content of my order, that can have no effect on the company’s rights under Cypriot law generally, or under the law of contract in particular, and the Defendant will have to make his own decision as to where he stands in the light of such advice as he is able to take. All I am deciding is that I see no reason why the Defendant’s freedom to publish what passed between him and the company in December should be additionally inhibited by a claim brought by his wife (rather than the company) in reliance upon her rights of privacy and/or confidentiality – even if that was her wish.[55]One of the other complaints against him is that the Defendant has used the device of publicising the application notice in order to attack her activities within IKOS. I would not grant an injunction in proceedings of this kind in relation to those allegations. This is not about information passed between one spouse and another concerning business matters, in respect of which there can sometimes be a reasonable expectation of privacy: see e.g. Lord Browne of Madingley, cited above. Here the criticisms are of her conduct in the context of the company’s affairs. I am not saying that this complaint is necessarily one of “defamation in disguise”, but I do not think that the protection of personal information, as contemplated in Campbell v MGN Ltd, goes this far. If the Defendant wants to publish allegations of that kind, he will have to take account of various risks, such as being sued for libel, or being held in contempt of the Cypriot court, or being in breach of a duty of confidentiality owed to IKOS. Those are matters for him to assess, but they do not affect my task.[56]In their 82 page skeleton argument, counsel for the Claimant put forward a suggested list of issues for the court to resolve on this application. It may be appropriate for me to summarise my conclusions by reference (broadly) to these questions:(1) The Claimant and/or her son have a reasonable expectation of privacy in respect of the personal information the Defendant chose to redact – notwithstanding that it was mentioned in (or perhaps “ dragged into”) the Greek proceedings.(2) Even if they were technically available to public scrutiny via the Thessaloniki hearing of 27 May, in reality those matters have not yet entered the public domain, in the sense that there is nothing confidential left to protect in this jurisdiction. Nor is their reasonable expectation of privacy outweighed by any countervailing public interest.(3) The Cypriot injunction does not provide a reason in itself for this court to grant an (additional) prohibition on information in respect of which IKOS is owed a duty of confidence. It has its remedies already available via the existing injunction (now registered in England). In any event, it is not before the court as a party to these proceedings. The fact that I do not seek indirectly to enforce it, however, does not mean that the Defendant in any way ceases to be bound by existing obligations.(4) As to the allegations about the Claimant’s conduct in a corporate context, it may be that they go to reputation. But I do not need to describe the claim as a “libel action in disguise” or to cite Bonnard v Perryman [1891] 2 Ch 269 as a reason for refusing relief. It does not get to that stage, because the Claimant has failed to demonstrate that allegations critical of her behaviour in a business or corporate context are such that she would have a reasonable expectation of privacy in relation to them.(5) So far as the Greek court documents are concerned, the only one in respect of which the Defendant has shown an intention to publish is his own application notice. It is not appropriate to grant an injunction in relation to that document, since the Claimant is unable to demonstrate, in the light of the expert evidence, that she is “likely” to succeed in obtaining a permanent injunction to restrain its use. As I have already made clear, however, that does not mean that all the information contained in it can be published without any qualification. If it has not yet reached the public domain, it may be that rights of privacy or confidentiality can still be enforced in respect of it, whether in this jurisdiction or elsewhere.[57]In the result, therefore, I refuse the relief sought by the Claimant on the present application for a variety of reasons, depending on the particular category of information – but not on the primary ground put forward by the Defendant, to the effect that everything he chose to put in his application notice of 19 May can now be published by him freely and without legal consequences. The injunction is to be discharged, although I granted an extension, on 8 July, to allow the Claimant to have the opportunity to apply for permission to appeal.[58]On that occasion, I was also asked to rule on the issue of the costs of the hearings before Maddison J on 4 June and myself on 21 and 22 June. Mr Browne asked for an order in favour of the Defendant because the Claimant had failed to obtain an injunction with regard to the Defendant’s application notice of 9 May or any of the other court documents. He presented a schedule of costs amounting to £415,000. I was not given any figure relating to the Claimant’s costs. Mr Warby QC invited me to analyse the issues addressed and which party had “won” in relation to each. He suggested that “no order” was appropriate.[59]It is clear that a significant proportion of the costs is attributable to expert evidence and the outcome was neutral for the reasons I gave.[60]Mr Warby also highlighted a number of issues raised by the Defendant on which he had proved unsuccessful: i) It had been contended by Mr Browne that the Defendant was free to publish all the material in the application notice, as it was his information. That argument was not wholly successful, since it was held that the court was still required to balance competing rights. ii) It was submitted that the injunction granted on 4 June was simply pointless, but that did not succeed for the reason I gave in paragraph [11] above. iii) The argument based on public interest was rejected. iv) So too, for the time being at least, the public domain argument has proved unsuccessful. Mr Warby relies on these issues in support of his submission that it would be unfair for the Defendant to recover his costs.[61]There is another factor which seems to me significant. That relates to the conduct of the Defendant and his representatives at the end of May and beginning of June. It has emerged that he handed over (through his solicitors) an unredacted version of the application notice to a Daily Telegraph journalist. What is more, when the Claimant’s advisers intimated their intention to seek the court’s protection on 4 June, he moved swiftly to get the information to dozens of other people in an apparent attempt to deprive her of any effective access to the court. On this occasion there was an attempt at redaction that was not wholly successful. Against this background, it may be said that to a significant extent the Defendant brought the proceedings on himself. It is hardly surprising that the Claimant was sceptical as to the Defendant’s protestations that he did not wish to publish truly private and personal material.[62]For these reasons, it seems to me that the fair order in relation to the hearings is that the costs should lie where they fall.

Cited in 1 later judgment