The Commercial Court (Cockerill J) has handed down judgment in Saab v Dangate Consulting Ltd & Ors  EWHC 1558 (Comm), finding that two former Scotland Yard police detectives, who worked as private investigators, breached contractual duties of confidence owed to shareholders of FBME Bank. The case makes important findings with respect to the nature and scope of (a) contractual duties of confidence, and (b) the public interest defence / defence of iniquity.
In synopsis, the Defendants were retained by the Claimants (former shareholders of the Bank) to perform an internal investigation at the Bank into allegations of money laundering made by the U.S. regulator FinCEN (the Financial Crimes Enforcement Network) by a Notice of Finding in July 2014. The Defendants performed that investigation between July and November with a view to assisting the shareholders, and the Bank, in responding to FinCEN’s allegations. The Defendant’s engagement was terminated in November 2014, prior to completion of their investigation. Three months after their engagement came to an end the Defendants began making extensive disclosures to third parties of confidential information and documentation obtained during their investigation, including the Central Bank of Cyprus, the Cypriot Unit for Combating Money Laundering (“MOKAS”), the Attorney General of Cyprus, and the Cypriot Police. The Defendants also provided lengthy affidavits to the very institution whose Notice of Finding precipitated the need for their private investigation at the Bank, namely FinCEN.
The Defendants pleaded two defences to the breach of confidence claim: (1) the public interest defence, and (2) compulsion by law. As to the latter defence, the Defendants’ case was that the Central Bank of Cyprus and Attorney General of Cyprus had compelled them, in writing, to make the disclosures of confidential information/documentation. The Defendants elected not to adduce any expert evidence as to Cypriot law, and Cockerill J rejected the defence in any event on the basis the letters sent to the Defendants requested, but did not compel, disclosure.
As to the public interest defence, the Defendants sought to suggest they had uncovered evidence of “criminality” at the Bank that justified their disclosures, contrary to their duties of confidence. Cockerill J found the defence did not apply. The Defendants had made such broad disclosures of documents, amounting to a “document dump” (§157), that it could not be said each and every disclosure was necessary in the public interest. The judge found that “it would be vanishingly rare for a situation to arise which justified such a very broad disclosure” as was made by the Defendants (§159). Cockerill J also considered each category of disclosure made and found that either there was no pressing need for the public to know the information disclosed (some of which was described as “loose gossip” (§162(1)), or that information was already in the public domain.
During the course of her judgment, Cockerill J decided that, in principle, greater weight should attach to express duties of confidentiality in circumstances where the information in question is of a nature that would attract confidentiality obligations at common law (§143 – §154). That finding resolves an open question, following obiter comments in Campbell v Frisbee  EWCA Civ 1374 (CA), HRH Prince of Wales v Associated Newspapers Ltd  EWHC 522 (Ch) and Attorney General v Parry  EWHC 3201 (Ch), and opposing commentary in the leading texts. Cockerill J also set out a helpful summary of the current law on breach of confidence and the public interest defence at §126 – §154 of her judgment.
David Allen QC and Jason Robinson were instructed by Quinn Emanuel Urquhart & Sullivan UK LLP.
A copy of the judgment can be found here.