For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Tuesday, 17 April 2012

Active Director Expects Double Dividend but loses Battle of the Bulge

Even in the best-organised
families, there is sometimes
speculation as to who the father
might possibly be ...
It's good to know that the courts are reluctant to place a ban on disclosure of confidential information in at least one situation -- when the secret information in question becomes too big to hide any more.  This is apparent from SKA and PLM v CRH and persons unknown [2012] EWHC 766 (QB), a Queen's Bench decision of Mr Justice Tugendhat late last month.  This case nearly escaped the IPKat's attention since he doesn't always spot decisions that come from the regular High Court for England and Wales rather than from the Patents Court. For the record, it's always worth checking the Queen's Bench cases to see what's cooking: big disputes involving intellectual property licences and other contractual arrangements are also often tried there.

In this case SKA and PLM [Who? Merpel hasn't heard of them either], who were obviously enjoying a relationship of some intimacy, applied for an order that CRH, along with various other persons unknown, be prohibited from disclosing allegedly private and confidential information and from harassing them. There was some evidence that CRH was making demands with menaces that added up to blackmail, which strengthened the applicants' case.  However, apart from the usual personal information which they wished to protect, the couple also sought to protect the disclosure of the fact that PLM was due to give birth to twins which were fathered by SKA.  CRH, it seems, had threatened to disclose this information (i) to SKA's grown-up children by his first marriage and (ii) to his second wife, to whom SKA was still married and with whom he was still living [Merpel notes: SKA is described as a man in his 70s who is an active director of several companies. "Active" seems a peculiarly apt adjective for him].

Tugendhat J granted the non-disclosure injunction substantially in the terms sought, except that he refused to prohibit disclosure of the bare facts that (i) SKA and PLM were in a relationship and that (ii) SKA is the father of PLM's shortly-expected twins. For the sake of clarity he stated that he was not ordering that any disclosure be made, nor was he authorising anyone to make that disclosure: he was just declining to prohibit it by an injunction. Regarding the twins, he added that, without having heard any evidence of submissions about the rights and interests of SKA's first family, or of the twins, he could not be satisfied that the claimants were likely to succeed in establishing that publication of the information in question to SKA's first family should not be allowed. This being so, an injunction was neither necessary nor proportionate.

In the course of his judgment, Tugendhat J observed that PLM -- like any expectant mum -- would have had a reasonable expectation of privacy in respect of her pregnancy at a time before it was obvious to those associating with her that she was pregnant. However, once it was obvious that she was pregnant, that time had passed -- and with it passed any chance of success for the application.  If he was wrong about this, it would still be necessary to consider whether there was some proper justification for disclosure of PLM's pregnancy to SKA's grown-up children and his current wife -- which was unlikely to be the case.

The IPKat thinks this decision is a good one; it protects the claimants against blackmail threats while not seeking to ban the blindingly obvious.   Merpel wonders what all the fuss is about.  Felines generally have any number of kittens at a time and don't usually have a clue as to who the father is ...

Nothing about twins: The Battle of the Bulge here
Dreadful movies about twins here and here

1 comment:

Anonymous said...

Re this case and the alleged blackmail threats, it's worth looking at the current Private Eye (edition 1311, page 7, "Privacy News"), which reports this case - provides some additional information, context and observations.

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