Neutral Citation Number: [2007] EWHC 1816 (QB)
Case No: HQ07X02371
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/07/2007

Before :

MR JUSTICE STANLEY BURNTON
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Between :

	(1) Long Beach Limited		
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	(2) Denis Christel Sassou Nguesso	Claimants/Applicants	
	-and-		
	Global Witness Limited	Defendant/Respondent	

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Mr Matthew Nicklin (instructed by Schillings) for the Claimant Applicants
Mr Andrew Nicol QC (instructed by Finers Stephens Innocent LLP) for the Defendant Respondent

Hearing dates: 12, 13 July 2007
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Judgment
Stanley Burnton J : 
Introduction 
1.	On 12 and 13 July 2007 I heard an application by the Claimants, made formally without notice but after notification to the Defendant of their intention to make it, for injunctions requiring it to remove from its website allegations, information and documents relating to the Claimants’ affairs which the Defendant had obtained as a result of proceedings in High Court of Hong Kong. The Claimants’ application focused on three specified documents or sets of documents, to which I shall refer as “the specified documents”, and to information derived from them. On the basis of those documents, the Defendant suggested on its website and in a press release that the Second Claimant may have been guilty of misconduct as President and Director General of Cotrade, the marketing arm of the Société Nationale des Pétroles du Congo, the state oil company of the Republic of the Congo (“the Congo”).
2.	On 13 July 2007 I informed the parties of my decision to dismiss the Claimants’ application. I stated that I would give my reasons orally on 16 July. Mr Nicklin, for the Claimants, submitted that I should not in my open judgment make reference to the specified documents or to the Defendant’s statements derived from them: those matters could if necessary be referred to in a separate private judgment that would not be available to the public. He submitted that any reference to these matters would prejudice the Claimants’ claim for damages for the misuse of their private information. Mr Nicol QC took issue with this submission. He submitted that in the present case the Court was free to make such references to those documents and other material as it considered appropriate in order to give the reasons for its decision. 
3.	The Claimants subsequently suggested that I should hand down a written judgment with, as customary, a confidential draft being distributed to the parties in advance. I acceded to this suggestion.
4.	On 16 July 2007 I received additional written submissions from Mr Nicklin in support of his contention that the documents and information which are the subject of these proceedings should not be referred to in my open judgment. Mr Nicol responded to these submissions in writing. Neither of them suggested a further hearing.
5.	In these circumstances, I have decided to hand down a judgment on the issue raised by Mr Nicklin as to the content of my principal judgment. My principal judgment will be distributed as a confidential draft. The parties will be able to see from it my reasons for dismissing the Claimants’ application for injunctive relief. It is therefore unnecessary for me to set out the background or facts relating to the application for injunctive relief. They will also be able to see what reference I propose to make to the information that is the subject of these proceedings.
6.	I have decided, for the reasons that appear below, to reject the Claimants’ submission as to the content of my principal judgment giving my reasons for refusing their application for injunctive relief. They will be able to make further submissions to me on the detail of that judgment when the instant judgment is handed down, if they are so advised, and to seek from me or the Court of Appeal permission to appeal this judgment, and to pursue an appeal if permission is given. They will be able to refer to my draft judgment, on the hearing of any such appeal, which the Court of Appeal may decide to hold wholly or partly in private. If my present judgment is not appealed, I shall hand down my principal judgment in its present form.
The Claimants’ grounds for submitting that no reference should be made in my open judgment to the subject matter of their application 
7.	In support of this application, Mr Nicklin relied upon the decision of the House of Lords in Cream Holdings Ltd v Bannerjee [2005] UKHL 44, [2005] 1 AC 253 and that of the Court of Appeal in Lord Browne of Madingley v Associated Newspapers Ltd [2007] EWCA Civ 295. In both cases, the Court of Appeal gave two judgments, one open and one confidential. In Cream Holdings the members of the House of Lords were able to give their reasons for allowing the appeal without referring to the content of the confidential judgments of the Court of Appeal.  In Lord Browne of Madingley v Associated Newspapers Ltd the Court of Appeal directed that excisions should be made from the public judgment of Eady J at first instance.
8.	Those cases differed from the present in an important, and in my judgment crucial, respect. In both of those cases, the information that was referred to in the confidential judgments was confidential information that had never been published, but which a defendant had threatened to publish. In Cream Holdings, the defendant newspaper had already published an article derived from information passed to it by the first defendant, a former employee of the claimants. The claimants sought an injunction to prevent publication of further information: see the judgment of Simon Brown LJ in the Court of Appeal [2003] EWCA Civ 103, [2003] Ch 650 at paragraphs 7 to 9. As he put it, “They (the claimants) made no complaint about the initial article, recognising both that it was too late to do so and that in any event there was a public interest in exposing corruption.” See too the speech of Lord Nicholls of Birkenhead at paragraph 5. The newspaper admitted that it wished to publish further information that was confidential; the issue was whether disclosure was in the public interest. It was this further unpublished confidential information that was the subject of the confidential judgments of the Court of Appeal and at first instance. By excluding that information from the public judgments, the court avoided pre-empting the decision of the newspaper as to what if any further confidential information it would publish. 
9.	Similarly, in Lord Browne of Madingley v Associated Newspapers Ltd the information that was referred to in the confidential judgments had never been published. 
10.	The present case is very different. The Claimants sought an injunction restraining the Defendant from continuing to publish information and documents that had already been published, and which as a result of my refusal of their application it has presumably continued to publish. The great likelihood is that that information is no longer confidential. As Lord Nicholls of Birkenhead said in Cream Holdings at paragraph 18: “Confidentiality, once breached, is lost for ever.” I see no significant basis for considering that the publication of my principal judgment will affect any claim for damages that the Claimants may have.
11.	The Claimants also contend that the principle of comity requires me to abstain from referring to one of the orders of the High Court of Hong Kong. Since, however, that order is one of the bases for their application for injunctive relief in this country; it would be difficult if not impossible to avoid referring to it in any judgment giving the full reasons for my decision. Comity requires this Court to respect any order of that Court, but it does not require this Court to observe an order made against a defendant which was not subject to its jurisdiction. Moreover, the Claimants have not been able to put forward any good reason, apart from the terms of the order itself,  for excluding reference to that order in my principal judgment.
12.	In my judgment, on the assumption that Article 6 of the European Convention on Human Rights applies to the Claimants’ application for injunctive relief, it requires the publication of the full reasons for the decision of this Court unless there are cogent reasons for not doing so. Common law principles point in the same direction. In addition, to excise the information of which the Claimants complain from my public judgment would involve a prohibition on the publication of my full reasons. That prohibition, in the absence of cogent reasons for it, would infringe the rights of the Defendant and others under Article 10. My draft judgment will, when handed down, contain no information that has not already been published, other than the reference to the order of the High Court of Hong Kong. In my judgment, there are no good reasons in this case for any part of my principal judgment to be excluded from public access and consideration.