Established prior restraint principles applied in novel breach of confidence action: Tillery Valley Foods v Channel 4 Television and Shine Ltd

In a judgment handed down on 11 May by Mr Justice Mann, the High Court rejected an application, unless certain conditions were met, to restrain broadcast of a Despatchesprogramme made by Shine Ltd for Channel 4.


The claimant, Tillery Valley Foods, sold chilled frozen meats to the healthcare and public sector markets. The programme was based on the investigations of a journalist who had posed as a factory worker at one of the claimant’s premises and had taken secret footage as part of a report on allegations of bad and unhygienic practice on the part of TVF. TVF applied for an injunction postponing the broadcast of the programme until it had been given a chance to view parts of the footage taken at the factory, and respond to the allegations made on the programme, which it denied.

TVF argued that the activities of the undercover journalist amounted to a breach of his duties of trust and confidence, and the film recorded by him constituted confidential information. TVF conceded that the public interest justified the publication of the allegations but argued that the extent to which use could be made of confidential information in the public interest was a balancing exercise. TVF said that part of that exercise should involve giving the company a right of reply, as provided for in the Programme Code, and that this should be taken into account in deciding whether the footage should be broadcast.

The judge applied section 12(3) of the Human Rights Act 1998 which lays particular stress on the importance of freedom of expression where applications are made to restrain publication of information. He did not think there was any realistic prospect of success for TVF’s action. He rejected TVF’s contention that the information captured on the secret footage was self-evidently confidential information. The claimant could not rely on the employment contract which the investigative journalist had signed barring the disclosure of confidential information, because the judge found that the information at issue lacked the essential quality of confidence.

However, the judge considered that even if the information was confidential, there was a clear public interest in its disclosure, and the Programme Code did not assist since it was merely a code of practice and not an embodiment of law. There was therefore no right of reply which the court should uphold in these circumstances.

The judge concluded that this was really a defamation action dressed up as one for breach of confidence, and therefore dismissed it applying the long established principle of defamation law which rules out any prior restraint of defamatory material where there is an intention on the part of the defendant to justify it (ie to prove that material published was true).

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