Bloomberg LP (Appellant) v ZXC (Respondent) - [2022] UKSC 5

The reporting restrictions made by the High Court and the Court of Appeal remain in force.

Hilary Term
[2022] UKSC 5
On appeal from: [2020] EWCA Civ 611

JUDGMENT

Bloomberg LP (Appellant) v ZXC (Respondent)

before

Lord Reed, President
Lord Lloyd-Jones
Lord Sales
Lord Hamblen
Lord Stephens

JUDGMENT GIVEN ON
16 February 2022

Heard on 30 November and 1 December 2021

Appellant
Antony White QC
Clara Hamer
(Instructed by Reynolds Porter Chamberlain LLP (London))

Respondent
Tim Owen QC
Sara Mansoori
Edward Craven
(Instructed by David Byrne)

LORD HAMBLEN AND LORD STEPHENS: (with whom Lord Reed, Lord Lloyd-Jones and Lord Sales agree)

1. Introduction

The central issue on this appeal is whether, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

The appellant, Bloomberg LP (“Bloomberg”), is an international financial software, data and media organisation headquartered in New York. Bloomberg News is well-known for its financial journalism and reporting.

The respondent, ZXC (“the claimant”), is a citizen of the United States but has had indefinite leave to remain in the UK since 2014. He worked for a publicly listed company which operated overseas in several foreign countries (“X Ltd”) and became the chief executive of one of its regional divisions but was not a director.

The claimant brought a claim for misuse of private information arising out of an article (“the Article”) published by Bloomberg in 2016 relating to the activities of X Ltd in a particular country for which the claimant’s division was responsible (the “foreign state”). These activities had been the subject of a criminal investigation by a UK law enforcement body (the “UKLEB”) since 2013. The information in the Article was almost exclusively drawn from a confidential Letter of Request sent by the UKLEB to the foreign state.

The claimant claims that he had a reasonable expectation of privacy in information published in the Article and in particular the details of the UKLEB investigation into the claimant, its assessment of the evidence, the fact that it believed that the claimant had committed specified criminal offences and its explanation of how the evidence it sought would assist its investigation into that suspected offending.

The claimant claimed that Bloomberg misused his private information by publishing the Article and sought damages and injunctive relief. Following a four-day trial before Nicklin J, the claims were upheld and damages of £25,000 awarded, as set out in his open judgment of 17 April 2019 - [2019] EWHC 970 (QB); [2019] EMLR 20. Bloomberg’s appeal was dismissed by the Court of Appeal (Underhill LJ, Vice President of the Court of Appeal, Civil Division, and Bean and Simon LJJ) in its open judgment of 15 May 2020 - [2020] EWCA Civ 611; [2021] QB 28. Permission to appeal was granted by a panel of the Supreme Court on 17 December 2020.

The judgments below were given in an open form which was an edited version of the private judgment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] UKSC 5
Decision Date

CaseChat Overview and Summary

This appeal concerns a claim for misuse of private information arising out of an article published by Bloomberg relating to the activities of a company in a particular country. The claimant, ZXC, had been under criminal investigation by a UK law enforcement body and claimed that he had a reasonable expectation of privacy in respect of information relating to the investigation. The Court of Appeal had dismissed Bloomberg’s appeal against a finding by the High Court that the claimant had a reasonable expectation of privacy in respect of information relating to the investigation and that the article 8/10 balancing exercise came down in favour of the claimant. Bloomberg appealed to the Supreme Court.The Supreme Court dismissed the appeal on all grounds. The Court of Appeal was correct to hold that there is a general rule, applicable in the present case, that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. The Court of Appeal was also correct to hold that, in a case in which a claim for breach of confidence was not pursued, the fact that information published by Bloomberg about a criminal investigation originated from a confidential law enforcement document rendered the information private and/or undermined Bloomberg’s ability to rely on the public interest in its disclosure. The Court of Appeal was correct to uphold the findings of the High Court that the claimant had a reasonable expectation of privacy in relation to the published information complained of, and that the article 8/10 balancing exercise came down in favour of the claimant.

Orders