Line to take - LTT172 - Meaning of the term "actionable" in section 41 cases

• FOI/EIR: FOI
• Section/Regulation: s41
• Issue: Meaning of the term "actionable" in section 41 cases
• Source: Information Tribunal
• Details: Higher Education Funding Council / Guardian News (13 January 2010)
• Related Lines to Take: LTT93, LTT94, LTT95, LTT96, LTT97, LTT98
• Related Documents: EA/2009/0036 (HEFCE)
• Contact: HD
• Date: 07/04/2010
• Policy Reference: LTT172
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

An actionable breach is not just one that is arguable but one that would, on the balance of probabilities, succeed.

Further Information

Content

The Tribunal in the case of the Higher Education Funding Council for England (HEFCE) & Guardian News and Media Ltd (EA/2009/0036) considered the issue of what constitutes an actionable breach for s.41 purposes. The Commissioner had argued that an actionable breach was one that was, on the balance of probabilities likely to be successful. However the HEFCE argued that an actionable breach was simply one which was ‘properly arguable’ — this is described by the Tribunal at paragraph 21 as referring to a case where

“....if the Particulars of Claim would not be struck out applying the normal strike out test of considering if the claim would fall even if the truth of every fact alleged in the Particulars were to be established at trial, then we should treat the claim as ‘actionable”.

At paragraph 25(d), the Tribunal said as follows:

“We... turn to Hansard to see if it provides guidance in the form of an authoritative, clarifying statement from a promoter of the legislation. We find that it unquestionably does, the following quotations from statements made in the course of debate by Lord Falconer putting the issue beyond doubt, in our view:

“Simply to put at the top of a document “Confidential” does not make the disclosure of that document by anyone actionable in breach of confidence. “Actionable’, means that one can go to court and vindicate a right in confidence in relation to that document or information. It means being able to go to court and win.” (Hansard HL (Series 5), Vol.618, col.416)

“... the word “actionable” does not mean arguable ... It means something that would be upheld by the courts; for example, an action that is taken and won. Plainly, it would not be enough to say, “I have an arguable breach of confidence claim at common law and, there fore, that is enough to prevent disclosure”. That is not the position. The word used in the Bill is “actionable” which means that one can take action and win.” (Vol 619, cot 175- 176)”

Thus, to establish an ‘actionable’ breach of confidence, the public authority must establish that an action for breach of confidence would, on the balance of probabilities, succeed i.e. considering whether or not all three limbs of the test of confidence can be established and whether or not the public authority has a public interest defence to the claim.

It is important to note however that this does not mean that it has to be established that someone (*) would be likely to bring a claim for breach of confidence but rather that if they did; they would be likely to succeed.

(*) - In most cases it will be obvious who would be likely to bring the action for breach of confidence but in cases involving deceased’s medical records, it will be sufficient to show that a personal representative could bring an action rather than having to identify the specific representative.