Ernst & Young Ltd and Others v Department of Immigration

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 12 February 2015
• Court: Grand Court (Cayman Islands)
• Date: 12 February 2015

Grand Court, Civil Division

(Smellie, C.J.)

ERNST & YOUNG LIMTED and THREE OTHERS

and

DEPARTMENT OF IMMIGRATION

ERNST & YOUNG LIMITED and THREE OTHERS

and

TIBBETTS and PERSONS UNKNOWN

M. Imrie, Ms. L. Kuehl and Ms. K.-L. Wight for the plaintiffs.

Cases cited:

(1) A v. B, [2005] E.M.L.R. 36; [2005] EWHC 1651 (QB), referred to.

(2) A v. B plc, [2003] Q.B. 195; [2002] 3 W.L.R. 542; [2002] 2 All E.R. 545; [2002] E.M.L.R. 21; [2002] 1 FLR 1021; [2002] 2 F.C.R. 158;

[2002] H.R.L.R. 25; [2002] U.K.H.R.R. 457; [2002] EWCA Civ 337, referred to.

(3) American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396; [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504, applied.

(4) Argyll (Duchess) v. Argyll (Duke), [1967] Ch. 302; [1965] 2 W.L.R. 790; [1965] 1 All E.R. 611, referred to.

(5) Att. Gen. v. Barker, [1990] 3 All E.R. 257, referred to.

(6) Att. Gen. v. Observer Ltd., [1990] 1 A.C. 109; [1988] 3 W.L.R. 776; [1988] 3 All E.R. 545; [1989] 2 FSR 181, applied.

(7) Att. Gen. v. Times Newspapers Ltd., [2001] 1 W.L.R. 885; [2001] E.M.L.R. 19; [2001] EWCA Civ 97, referred to.

(8) Bloomsbury Publishing Group plc v. News Group Newspapers Ltd., [2003] 1 W.L.R. 1633; [2003] 3 All E.R. 736; [2003] FSR 45; [2003] EWHC 1205 (Ch), applied.

(9) Coco v. A.N. Clark (Engrs.) Ltd., [1968] F.S.R. 415; [1969] R.P.C. 41, referred to.

(10) Cream Holdings Ltd. v. Banerjee, [2005] 1 A.C. 253; [2004] 3 W.L.R. 918; [2004] 4 All E.R. 617; [2005] E.M.L.R. 1; [2004] H.R.L.R. 39; [2004] U.K.H.R.R. 1071; [2004] UKHL 44, considered.

(11) Dunford & Elliott Ltd. v. Johnson & Firth Brown Ltd., [1977] 1 Lloyd”s Rep. 505; [1978] FSR 143, referred to.

(12) Harris v. Harris, [2001] 2 FLR 895; [2001] 3 F.C.R. 193, referred to.

(13) M v. Home Office, [1994] 1 A.C. 377; [1993] 3 W.L.R. 433; [1993] 3 All E.R. 537, considered.

(14) M and N (Minors), In re, [1990] Fam. 211; [1989] 3 W.L.R. 1136; [1990] 1 All E.R. 205; [1990] 1 FLR 149; [1990] F.C.R. 395, referred to.

(15) S (A Child) (Identification: Restrictions on Publication), Re, [2004] Fam. 43; [2003] 3 W.L.R. 1425; [2003] 2 FLR 1253; [2003] 2 F.C.R. 577; [2003] H.R.L.R. 30; [2003] EWCA Civ 963, considered.

(16) Saltman Engr. Co. Ltd. v. Campbell Engr. Co. Ltd., [1963] 3 All E.R. 413; (1948), 65 RPC 203, referred to.

(17) Tony Blain Pty. Ltd. v. Splain, [1994] FSR 497, referred to.

(18) Venables v. News Group Newspapers Ltd., [2001] Fam. 430; [2001] 2 W.L.R. 1038; [2001] 1 All E.R. 908; [2001] E.M.L.R. 10; [2001] 1 FLR 791; [2002] 1 F.C.R. 333; [2001] H.R.L.R. 19, referred to.

(19) X (A Minor), In re, [1984] 1 W.L.R. 1422; [1985] 1 All E.R. 53, referred to.

(20) X (formerly known as Mary Bell) v. O”Brien, [2003] E.M.L.R. 37; [2003] 2 F.C.R. 686; [2003] EWHC 1101 (QB), considered.

(21) X v. Persons Unknown, [2007] E.M.L.R. 10; [2007] 1 FLR 1567;

[2007] 3 F.C.R. 223; [2007] H.R.L.R. 4; [2006] EWHC 2783 (QB), applied.

Legislation construed:

Freedom of Information Law (2007), s.21: The relevant terms of this section are set out at para. 14.

s.23: The relevant terms of this section are set out at para. 14

Freedom of Information (General) Regulations, 2008, reg. 2: The relevant terms of this regulation are set out at para. 15.

Constitutional Law-Bill of Rights-publication of personal information disclosed in breach of procedures prescribed by Freedom of Information Law (2007 Revision) infringes right to private and family life under Bill of Rights, art. 9-injunction may be granted to prevent publication if individual”s right to private and family life outweighs importance of publisher”s freedom of expression under art. 11

Injunctions-defendants-contra mundum-may in exceptional circumstances grant injunction contra mundum if sought to prevent publication of highly personal information of large number of people-injunction extends to those with notice of terms of injunction-temporary nature of injunction justifies far-reaching applicability

Injunctions-defendants-persons unknown-may grant injunction against person unknown to prevent publication of confidential information if applicant unable to name defendant but can otherwise identify him (e.g. by pseudonym and email address)

The plaintiffs applied for judicial review of the defendant Department”s decision to publish their employees” personal details. Pending trial, injunctions were sought to prevent the Department and others from disclosing the employees” details more widely.

In response to a freedom of information request, the defendant Department disclosed, via a spreadsheet, the personal details of all work permit holders in the Cayman Islands (amounting to roughly 21,000 people) to a local newspaper. The spreadsheet included details of their employers, nationalities, salaries, job titles and start dates, though their names were not revealed. The defendant did not follow the procedure prescribed in the Freedom of Information Law (2007), which required a notice period of at least 60 days to allow affected third parties to be consulted before disclosure.

The plaintiffs were multinational firms operating in the Cayman Islands which sought interlocutory injunctions preventing the defendant from further disclosing the employees” details, on the basis that disclosure infringed their right to privacy and revealed commercially sensitive information. The newspaper voluntarily agreed not to publish the spreadsheet and was therefore not joined as a party to the proceedings. The Department stated that the information had only been disclosed to the newspaper.

In the original ex parte application to the Grand Court, the plaintiffs submitted that there was a serious issue to be tried-i.e. whether a government body could disclose personal information in response to a freedom of information request-and the balance of convenience clearly favoured the plaintiffs, given that a large number of individuals might have their personal information made public and there was no discernible adverse effect on the defendant or third parties. In addition, the defendant had breached the Freedom of Information Law by failing to follow the prescribed procedure of giving 60 days” notice to affected individuals prior to disclosure. The court found that the plaintiffs had standing to bring the applications, accepted their submissions and granted an injunction restraining the defendant from further disclosure of the information contained in the spreadsheet.

Subsequently, it became apparent that extracts from the spreadsheet had been published on Facebook and that the Department had, prior to the injunctions being granted, disclosed the information to another person, identifiable only by a pseudonym and an email address. The publication of the information online generated hostility towards the plaintiff companies on the basis that they were perceived to hire large numbers of non-Caymanians and pay them lucrative salaries.

The plaintiffs therefore applied for additional injunctions to prevent the further publication of the spreadsheet. They submitted that (a) the person unknown had breached an equitable duty of confidence in that he or she ought to have known that publication of the spreadsheet would create public hostility to the plaintiffs and detriment to the employees; (b) the information was highly personal, and awarding damages would be inadequate compensation for the employees” loss of privacy; and (c) given the large number of people involved and the commercially sensitive nature of the information, injunctions against persons unknown and contra mundum would be appropriate.

Held, granting the injunctions:

(1) Further injunctions would be granted, as the plaintiffs had met the condition that they were likely to succeed at the inter partes stage and not merely that they had an arguable case. Though the privacy of the employees and the interests of the companies had to be balanced against the freedom of expression of those wishing to disseminate the spreadsheet, the information was highly personal, and its publication was clearly a serious infringement of the privacy of the plaintiffs” employees. Given

that the spreadsheet was used to provoke anger at the companies” hiring of non-Caymanians, and its publication would disseminate highly private information, it was likely that the unknown defendant was in breach of a duty of confidence. Further, there was no basis for thinking that the information was already in the public domain. The balance of convenience was in favour of an injunction as there was no discernible adverse effect on any other party (paras. 53–62).

(2) The court had jurisdiction to grant an injunction against ‘persons unknown’ when, as here, the plaintiffs did not currently know the identity of all defendants who were in possession of the information. It should not allow the requirement that defendants be named to prevent the grant of an injunction when an individual could be adequately described (e.g. by an email address). It was permissible to grant such an injunction if its duration and scope were made clear; in particular a public domain proviso should be included restricting its scope to information not in the public domain. Although proceeding against unnamed persons was technically in breach of the specific provisions of the Grand Court Rules, the overriding objective of enabling the court to deal with cases justly allowed it to approve the departure from the normal rules of pleading (paras. 64–74).

(3) The court also had jurisdiction, in the exceptional circumstances of the case, to grant injunctions contra mundum (i.e. against third parties with notice of the existence of the spreadsheet and also those with notice of the injunction, wherever they might be). They would be liable for contempt if they acted in a way contrary to the terms of the injunction (having notice of those terms) so as to frustrate the purpose of the court making the order. The present circumstances were exceptional in...