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1. The schedule was as follows:-

2. At the hearing of the appeal, counsel on behalf of the plaintiffs accepted that the adjective “confidential” should appear after the word “any” in each of the paragraphs in the schedule.

3. Some features of the scheme being operated by the plaintiffs and Clerical Medical Insurance and details of which are set out in the judgment which Lynch J. will deliver, should be noted. The operation of such a scheme by the plaintiffs, provided the necessary licences or permissions under any relevant legislation were obtained, was not of itself unlawful. The participation by customers of the plaintiffs in the scheme was also not of itself unlawful. Since, however, one of the results of the scheme was that accounts formerly held in the names of customers were now held in the name of Clerical Medical Insurance, the evasion of tax by the customers concerned could thereby be facilitated. The defendant says that, in the absence of any legitimate fiscal advantage resulting to the customer from his participation in the scheme, the conclusion is inescapable that one of its objects was to enable customers of the plaintiffs with “sensitive” accounts to put their monies beyond the reach of the Revenue Commissioners. The plaintiffs for their part, while conceding that there were what they described as “shortcomings” in the manner in which the scheme was operated, deny the allegation that it was established by them in order to facilitate tax evasion.

4. While it is said in the affidavit sworn on behalf of the defendant that the material which has provided the basis for the allegations made by its news division against the plaintiffs is not based exclusively on the furnishing to it of documents or information in breach of the confidential relationship between the plaintiffs and its customers, it acknowledges that it is in possession of such information and claims the right to publish it as it wishes in its broadcasts. Counsel on behalf of the defendant informed the Court during the hearing of this appeal that it had in its possession the account numbers of twenty accounts involved in the Clerical Medical Insurance scheme and the names of six customers entitled to the funds in the accounts, some of whom, he said, had informed the defendant that the accounts had been opened for the purposes of tax evasion. Counsel for the defendant says that his instructions are that one or more of the named customers, but not all six, had made such admissions. It is not in dispute that in excess of 150 customers of the plaintiffs accepted an invitation to participate in the scheme.

5. The plaintiffs do not claim to be entitled to an injunction restraining the defendant from broadcasting allegations against them that they have been operating a scheme which facilitates tax evasion. What they seek to enjoin is the use (including its transmission to the world at large) of the names of their customers and the details of their accounts and transactions entered into by them. That they said, would constitute a breach of the confidential relationship between the plaintiffs and their customers which will cause them irreparable damage. While the defendant accepts that the dissemination of the information will amount to a breach of the confidential relationship in question, it says that it is justified by the overriding requirements of the public interest: it submits that the evidence adduced by it to the High Court provides a strongly arguable case for holding that the public interest in the investigation and exposure of wrongdoing outweighs the requirements of confidentiality.

6. The legal principles applicable to these circumstances must now be considered. The plaintiffs in this case seek the equitable relief of an injunction and, accordingly, the maxim that “he who comes into equity must come with clean hands” is applicable. Moreover, where, as here, the plaintiffs say that they are entitled to prevent the use by the defendant of confidential information, another legal principle, sometimes called the “iniquity” defence is relevant. In an Irish case from the 18th century, the court approved of counsel’s submission that:-

7. Thereafter the doctrine was largely developed by the English courts. A helpful analysis can be found in Chapter 6 The Defence of Public Interest of Mr. Paul Lavery’s recent work Commercial Secrets. The Action for Breach of Confidence in Ireland (Dublin 1996). The “iniquity” label was first given to the defence by Wood V.C. in Gartside v. Outram [1857] 26 L.J. Ch. 113 at p.114 where he said:-

8. The modern English authorities have proceeded on the basis that such a defence, based as it is on the public interest in the prevention of wrongdoing, extends not merely to cases of criminal or fraudulent misconduct, but also to other wrongs or misdeeds, whether already committed or in contemplation. This was so held by the Court of Appeal in Initial Services Ltd. v. Putterill [1968] 1 Q.B. 296. A series of cases in that jurisdiction also established that the defence of “public interest” – which now, rather than the more old fashioned term “iniquity”, was the preferred description – extended to cases in which, while there was no evidence of misdeeds as such, the disclosure of the information could avert some danger to the public such as the marketing of particular drugs: see Hubbard v. Vosper [1972] 2 Q.B. 84, Beloff v. Pressdram Ltd. [1973] 1 All E.R. 241; Lion Laboratories Ltd v. Evans [1985] Q.B. 526; and Schering Chemicals Ltd. v. Falkman [1982] Q.B. 1.

9. The English authorities indicated that the appropriate approach was for the courts to engage in a balancing exercise, described as follows by Goff L.J. in A.G. v. Guardian Newspapers (No. 2) [1990] 1 AC 109 at p. 282:-

10. That approach has attracted some criticism in Australia. In S.K & F. Ltd v. Department of Community Services [1990] F.S.R. 617, Gummow J. referred to it as:-

11. Those misgivings may have been prompted by a wide ranging formulation of the principle by Denning M.R. in Woodward v. Hutchins [1977] 1 W.L.R. 760, where he defined it as at p. 764:-

12. While, as the learned trial judge noted, it would be unwise to attempt a formulation of the defence of public interest which would be applicable in every case, it can be said with confidence that the “balancing” approach suggested by the English authorities can be adopted in this jurisdiction in a case such as the present. If the plaintiffs and their customers are indeed participating in a scheme designed wholly or in part to facilitate the evasion of tax, the public interest in the maintenance of the confidentiality must be outweighed by the countervailing public interest in exposing such conduct.

13. The extent of the disclosure which may be permissible, however, is another matter. In Initial Services Ltd v. Putterill [1968] 1 Q.B. 396, Denning M.R. said at p. 405:-

14. That approach was developed further by Sir John Donaldson M.R. in Francome v. Mirror Group [1984] 1 W.L.R. 892, where the information the publication of which it was sought to restrain suggested a breach of the Jockey Club rules. The Master of the Rolls said at p. 898:-

15. A similar principle was applied in Re a Company’s Application [1989] Ch. 477, where a former employee of the plaintiff company threatened to disclose possible breaches of certain relevant regulations to the regulatory authority and misfeasances on the part of the company’s directors to the Inland Revenue. Scott J., as he then was, said that there would have been no answer to a claim for an injunction if the defendant had threatened a general disclosure of the confidential information, but that disclosure to the regulatory authority and (in an appropriate case) the Inland Revenue should not be restrained.

16. The application of these principles to this case must now be considered. While this is an application for an interlocutory injunction, there can be no doubt that consequences which will be to an extent irreparable will result from either the granting or the withholding of the injunction. If no injunction is granted, the relationship of confidentiality will be at once destroyed. If, on the other hand disclosure is restrained until the trial of the action, the role of the defendant in transmitting news as it happens will be seriously inhibited.

17. In these circumstances, the criteria usually applicable to the granting or withholding of an interlocutory injunction are of limited relevance. Both sides accept that, while either party may ultimately be entitled to damages as the result of the plenary hearing, the balance of convenience does not afford any clear guidance as to whether or not an interlocutory injunction should be granted. It is admitted that the information in the possession of the defendant is confidential and that its disclosure to third parties should normally be restrained. The essential issue is as to whether the defendant has established a public interest in the disclosure of the information which outweighs the public interest in confidentiality and, if so, the extent of the disclosure which is legitimate.

18. In arriving at a conclusion on this issue, there is one other factor which must be borne in mind. Typically, in the cases which have come before the courts in other common law countries, the plaintiff seeks to restrain the disclosure of information in breach of a duty of confidence owed to him by the defendant, or by a third party from whom the defendant has obtained the information. In this case, the plaintiffs’ case is that the disclosure of the information would also be in breach of the right to confidentiality of parties who are not before the court, i.e. the plaintiffs’ customers.

19. It is clear at this stage of the proceedings that, as found by the learned trial judge, the defendant has established a strongly arguable case that the admitted breach of confidentiality is justified by a countervailing public interest in disclosure. The fact that the scheme, by its nature, would facilitate the evasion of tax in this jurisdiction would not be of itself sufficient to justify such a breach of confidentiality. The defendant concedes that it is not in a position to say that all the customers who availed of the Clerical Medical Insurance scheme did so for that purpose. It is obvious that the scheme could be availed of by customers for legitimate objects, such as the lawful reduction of their tax burden or the maintenance of a particularly high degree of confidentiality, for family or business reasons, in respect of certain transactions or investments. The claim, however, by the defendant is not based exclusively on the nature of the scheme: it also says that it has information from persons connected with the plaintiffs, including some customers, that what are euphemistically described as “sensitive accounts” were “targeted” with a view to their being included in the scheme. It remains to be seen whether at a plenary hearing, the defendant will be in a position to establish that case, since it depends on sources which, at present, it is unwilling to identify. But the assertion has not been denied in the affidavits filed on behalf of the plaintiffs. At this stage, the defendant has met the criterion requiring a strongly arguable case.

20. It is clear that, having regard to the principles to which I have already referred, the postures adopted by the plaintiffs and the defendant respectively are not fully justified. The plaintiffs’ claim to restrain the defendant from making any use whatever of the confidential information obtained by it, which is capable of identifying their customers and accounts/ transactions relating to them goes too far. So, too, does the claim of the defendant to be entitled to make whatever use it wishes of the information, including broadcasting the names of customers and the details of their accounts to the world at large.

21. The details of the scheme are already in the public domain and are the subject of inquiries by the Revenue Commissioners and the Central Bank. The defendant has not made it clear how the broadcasting of the names of the customers and their accounts, some of whom, it accepts, may be innocent of any wrongdoing, is justified in the public interest. As has been frequently pointed out, it is not sufficient for it to say that the public would find such information interesting, as well it might: that does not make the disclosure one that is required in the public interest. On the contrary, given that there is a public interest in the maintenance of confidentiality for legitimate banking transactions, to permit the disclosure to the world at large of the names of customers and the details of their private financial affairs without notice to them, in circumstances where no illegality has been established, could not be justified.

22. It should be emphasised that this is not simply a question of protecting the interests of the plaintiffs, or even those of their customers involved in the scheme who may, for all one knows, be innocent of any wrongdoing. The existence of an efficient banking system based on a confidential relationship between the individual banks and their customers is a central feature of a modem economy. To give to the defendant an unfettered licence to publish the names of every customer involved in the Clerical Medical Insurance scheme where it had no information in its possession in relation to the particular accounts that wrongdoing has, or will, take place would be to effect a major inroad into that confidential relationship, which is warranted neither by principle nor authority.

23. It is undoubtedly the case that, at this stage of these proceedings, the defendant cannot be said to have done anything which is an invasion of the plaintiffs’ rights. That consideration, however, should not inhibit the court from granting what is usually called a quia timet injunction in an appropriate case. While the authorities on that somewhat arcane branch of the law were not opened to us, there can be no serious doubt as to the court’s power to grant such an injunction, where the defendant, as here, asserts the right to commit such an invasion of the rights of the plaintiffs and their customers without any prior notice. The defendant has steadfastly refused to give any undertaking whatever inhibiting its future course of conduct in relation to the confidential information in its possession, no doubt for what seem to it good reasons. It is a necessary consequence of that attitude, however, that the court enjoys the jurisdiction to grant a quia timet injunction.

24. The authorities to which I have already referred and which, I am satisfied, should be followed in this jurisdiction, make it clear that where someone is in possession of confidential information establishing that serious misconduct has taken place or is contemplated, the courts should not prevent disclosure to persons who have a proper interest in receiving information. The defendant accordingly, should not be restrained in this case from disclosing to the Revenue Commissioners the confidential information in its possession which, it says, establishes that this scheme has been availed of in order to evade the payment of tax. Nor should it be restrained from making use of the information in order to pursue an investigation which it has legitimately undertaken. The plaintiffs, however, are entitled in my view to an injunction restraining the defendant from disclosing to anyone other than the Revenue Commissioners the categories of information referred to in paras. 1 to 4 inclusive of the schedule to the plenary summons until the trial of the action, save where:-

25. I would allow the appeal and substitute for the order of the High Court an order granting an interlocutory injunction in those terms.

26. This is an appeal by the plaintiffs from a judgment and order of the High Court (Shanley J) delivered on the 6th March, 1998, refusing the plaintiffs’ application for an interlocutory injunction restraining the defendant from making any use whatever, and in particular from publishing, information which the plaintiffs allege is confidential to them selves and to their customers.

27. By an order of the High Court made on the 30th January, 1998, on ex parte application, the plaintiffs were granted an interim injunction effectively in the terms of para. 1 of the interlocutory injunction immediately thereafter sought and as hereinafter outlined.

28. By a notice of motion dated the 30th January, 1998, returnable for the 9th February, 1998, the plaintiffs sought:-

29. The categories described in the schedule to the plenary summons which was issued on the 2nd February, 1998, are as follows:-

30. The word “confidential” was inserted before the words information and documentation in each of the foregoing paragraphs by way of amendment not having been included in those paragraphs of the schedule to the plenary summons as originally issued and served.

31. The plaintiffs conceded on the hearing of the appeal before this Court that they could not seek by way of interlocutory relief the order sought at para. 2 of their said notice of motion quoted above and the appeal was accordingly, confined to the interlocutory injunction sought at para. 1 of their said notice of motion.

32. The defendant is the State broadcasting authority and operates a national television service. The plaintiffs are companies which have a banking business within and without the State. The second plaintiff is a wholly owned subsidiary of the first plaintiff and it provides services of a financial nature to customers of the first plaintiff.

33. On the 20th January, 1998, the plaintiffs received a letter from one Charles Bird, special correspondent with the defendant’s news department. This letter indicated that the defendant was working on a story for transmission the next day on the plaintiffs’ involvement with Clerical Medical Insurance Company Limited, a company based in the Isle of Man and New York. The letter contained a series of nineteen questions. Two of the questions set out hereunder give an idea of the contents of the letter of the 20th January, 1998.

34. By letter dated the 21 ^st January, 1998, the solicitors for the plaintiffs responded to Mr. Bird’s letter and said that, having regard to the contents of that letter, the defendant was in possession of confidential information which it would be wrongful for the defendant to disclose or publish in any way. On Friday, the 23rd January, 1998, the defendant broadcasted a story concerning the relationship between Clerical Medical Insurance Company Limited and the National Irish Bank. A further story was transmitted regarding that relationship on the 29th January, 1998. Again the solicitors for the plaintiffs wrote to the Director General of the defendant on the 29th January, 1998, seeking an undertaking from the defendant not to publish any confidential information in its possession, power or procurement relating to the plaintiffs or their customers. That undertaking was sought to be given before 12 noon on the 30th January, 1998, in default of which the plaintiffs’ solicitors indicated that they would be making an application to the High Court for injunctive relief. No such undertaking was given and in consequence the plaintiffs applied successfully to the High Court for the interim injunction already referred to and that interim injunction has been continued and remains in force at the present time.

35. The plaintiffs’ interlocutory application is to restrain the defendant from using confidential information in the hands of the defendant. The plaintiffs allege that the letter of the 20th January, 1998, indicates that Mr. Bird has information which belongs to the plaintiffs and which is of a confidential nature. They say that the publication of that information would damage the relationship of trust and confidence between the plaintiffs and their customers. They say that the plaintiffs’ reputation will be irreparably damaged if there is disclosure of the information and that such would result in a movement of customers from their bank to other banks. The plaintiffs say that they pride themselves on keeping the business affairs of their customers confidential.

36. The defendant says that the information which it has in its possession comes from a number of sources including interviews with former employees of the plaintiffs and some of the plaintiffs’ customers. It does not disclose whether the information includes documents and if so the nature of such documents. The defendant has submitted that to disclose the nature of the information which it has (whether of a documentary kind or otherwise) would be likely to have the effect of disclosing the source of such information. While the defendant admits to having information about the plaintiffs which is not in the public domain it says that even if it attracts the protection of confidence, its publication is justified on grounds of the public interest.

37. In an affidavit sworn by Mr. Edward Mullhall, director of news of the defendant on the 1st February, 1998, the defendant’s answer to the claim for an interlocutory injunction is set forth and particularly relevant to that answer are paras. 15 to 18 inclusive which I quote as follows:-

38. I beg to refer to a copy of this document upon which marked with letters EM 4 I have endorsed my name prior to the swearing

39. There is no ambiguity whatever in the defendant’s allegation. The allegation is expressly to the effect that the scheme was used by the greater part of the investors for tax evasion and that the plaintiffs knew that the scheme could enable customers to evade tax and they deliberately targeted customers who would be interested in such a scheme. The plaintiffs for their part deny that they ever had a policy to act in the manner which facilitated or encouraged or achieved tax evasion by their customers. They say that they are conducting an investigation of their own to determine whether there has been any wrongdoing on the part of the plaintiffs or their servants or agents and if there has they propose to notify the appropriate regulatory authorities.

40. Counsel for the plaintiffs submitted:-

41. Counsel on behalf of the defendant submitted:-

42. Counsel in the course of their respective submissions referred inter alia to the following cases: A.G. v. Guardian Newspapers (No. 2) [1990] 1 AC 109; X v. Y [1990] 1 Q.B. 220; Fraser v. Evans [1969] 1 Q.B. 349; Lion Laboratories Ltd. v. Evans [1985] Q.B. 526 ; Francome v. Mirror Group [1984]1 W.L.R. 892; Gartside v. Outram [1857] 26 L.J. Ch. 113; Initial Services Ltd. v. Putterill [1968] 1 Q.B. 396; Attorney General for England and Wales v. Brandon Book Publishers Ltd. [1968] I.R. 597 ; Connolly v. R.TE. [1991] 2 I.R. 446; M v. Drury [1994] 2 I.R. 8.

43. There is no doubt but that there exists a duty and a right of confidentiality between banker and customer as also exists in many other relationships such as for example doctor and patient and lawyer and client. This duty of confidentiality extends to third parties into whose hands confidential information may come and such third parties can be injuncted to prohibit the disclosure of such confidential information. There is a public interest in the maintenance of such confidentiality for the benefit of society at large.

44. On the other hand there is also a public interest in defeating wrong doing and where the publication of confidential information may be of assistance in defeating wrong doing then the public interest in such publication may outweigh the public interest in the maintenance of confidentiality.

45. In the present case the plaintiffs rely heavily on the fact that the court will not have been informed of the precise information in the possession of the defendant which it wishes to publish. This is certainly a matter to be put into the scales having regard to the usual case where the court is furnished with a copy of the information which it is desired to publish but in this particular case the absence of copies of what the defendant may wish to publish is not of all that great weight when it has made it clear what its information is which it contemplates publishing. Mr. Mullhall’s affidavit sworn and filed on behalf of the defendant and in particular paras. 15 to 18 inclusive which I have quoted above make it quite clear what it is that the defendant is alleging against the plaintiffs and at least the majority of their customers involved in this particular form of investment in Clerical Medical Insurance Company Limited insurance policies. It is said that the proper course for the defendant is to furnish such information as it has to the regulatory authorities and no further. I certainly agree that the defendant should furnish its information to such authorities and especially if it is asked for such information by such authorities but the allegation which it makes is of serious tax evasion and this is a matter of genuine interest and importance to the general public and especially the vast majority who are law abiding tax payers and I am satisfied that it is in the public interest that the general public should be given this information.

46. I have no problem therefore in upholding the refusal of the learned trial judge to grant the injunction sought regarding information related to the conduct of the plaintiffs in this matter but greater consideration must be given to the publication of the names of and related information about customers and their accounts. Mr. Mullhall’s affidavit establishes a strong prima facie case that at least the greater number of the Clerical Medical Insurance Company Limited policy investors were doing so for the purposes of tax evasion. Counsel for the plaintiffs conceded in his submissions in reply to counsel for the defendant that any customer who has admitted to the defendant that he was engaged in tax evasion in investing in the Clerical Medical Insurance Company Limited policies has no right to confidentiality.

47. If the defendant were to publish the names of persons who invested in Clerical Medical Insurance Company Limited policies but in fact did so lawfully and were not engaged in tax evasion the defendant concedes that the mere publication of their names would involve a serious libel on them and it (the defendant) would have to take the consequences. Therefore if the defendant decides to publish the names of any investors it should be very sure, and should take all necessary steps to ensure, that it does not publish the names of innocent investors.

48. Apart from that warning however and the warning that as a State body the defendant should co-operate with other State authorities having regulatory functions in the matter, I do not think that this is an appropriate case for any injunction against the defendant. In these circumstances I would affirm the order of the learned High Court judge and would dismiss the appeal.