Matalia v Warwickshire County Council, Court of Appeal - Civil Division, July 13, 2017, [2017] EWCA Civ 991

Issuing Organization:Civil Division
Actores:Matalia v Warwickshire County Council
Resolution Date:July 13, 2017
 
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Neutral Citation Number: [2017] EWCA Civ 991

Case No: A3/2015/1002

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

BIRMINGHAM DISTRICT REGISTRY

Mr Justice Newey

3BM30478

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 13 July 2017

Before:

LADY JUSTICE BLACK

LORD JUSTICE LINDBLOM

and

LORD JUSTICE DAVID RICHARDS

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Between:

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Edward Bragiel (instructed by direct professional access) for the Appellant

Tony Watkin (instructed by Warwickshire County Council Legal Services) for the Respondent

Hearing date: 18 January 2017

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LORD JUSTICE DAVID RICHARDS :

  1. This is an appeal against a final injunction restraining Amit Matalia, the appellant, from publishing or disclosing the contents of 11-plus tests used by the respondent Council and taken by candidates in the years 2013 to 2015. The injunction applies, in the case of each test, for three years from September in the year in which the test was sat. The legal basis for the injunction is the restraint of breach of confidence.

  2. In 2013, as in other years, there was more than one date on which candidates could sit the test administered by the Council. The dates were 7, 14 and 17 September, and the numbers of candidates sitting the test on those dates were 1,671, 267 and 67 respectively. The judge found that Mr Matalia obtained details of some questions in the 2013 tests from his nephew and perhaps other candidates, who had sat the tests on the first date. Mr Matalia published those details on a publicly-accessible website before the second date. The judge found that information about the contents of the tests was clearly confidential and that it would have been obvious to Mr Matalia, and to any other reasonable person, that the Council did not want information about the contents of the test to be made public.

  3. Any reasonable person knows that unauthorised disclosure of the contents of an examination or test yet to be taken, in a way that may come to the attention of candidates, risks undermining the purpose and integrity of the examination or test, and that such information is therefore confidential. An injunction to restrain such disclosure is not therefore on the face of it surprising.

  4. Mr Matalia applied for permission to appeal on a wide variety of grounds. He was granted permission to appeal on limited grounds. Lewison LJ granted permission on a ground that wrapped up a number of points, principally that the information had not been imparted to him in confidence and that the information published was in fact insufficient to compromise the tests. Following an oral hearing, Patten LJ gave permission to appeal on a further ground, that no duty of confidence was owed to the Council which therefore did not have standing to bring the claim.

    The facts

  5. There are six grammar schools in Warwickshire which award places on the basis of the candidates' performance in 11-plus tests. The Council administers the tests for the schools and, in the relevant years, commissioned the Centre for Evaluation and Monitoring at Durham University (the University) to provide the test papers. It is common ground that the University retained copyright in the papers and licensed their use by the Council. The test for each year comprised two papers, each containing between 100 and 125 questions. The time allowed for each paper was 45 to 60 minutes. No past or present papers are ever made publicly available.

  6. The judge heard evidence of the reasons for the test being taken on more than one day, and it is not necessary to repeat that evidence for the purpose of this appeal. The same test is used for each sitting to ensure consistent testing against the same standard, and to avoid the additional time and cost of commissioning separate tests for each occasion. There was no evidence that candidates were told not to disclose the contents of the tests.

  7. On 9 September 2013, the Council was told that information about the content of the test sat for the first time on 7 September 2013 had been posted on a website, of which Mr Matalia was the registered owner. The relevant page, headed ``Warwickshire 11+ Review 7th September, 2013 also (14th and 17th September 2013)'', provided information, much of it of a general nature, about the test but with an express disclaimer of accuracy and a statement that it should be used ``as a guide only''. The full text was set out by Newey J and it included:

    ``A. Comprehension regarding Lemurs in Madagascar. Around 2 pages of text and perhaps 20 questions. Easy enough to finish.

    ...

    1. Longer maths. 4 long questions with subsections (perhaps 15 minutes).

      i) A question relating to luggage dimensions and time differences: London and Hong Kong.

      ii) Cinema tickets, time calculations and prices.

      iii) Prices of items in a sale, including original prices. E.g price was £4.85 after a 75% discount. What was the original price?

      iv) Swimming suggestions - swimming lengths in a certain time. Required conversions and ratio/proportion knowledge.

      Some questions were difficult and many may not complete the questions.

    2. Synonyms (words included thrifty, frugal, insolent). Enough time to complete the questions.''

  8. The relevant test included a comprehension question on a passage concerning lemurs in Madagascar with a total of 23 questions. The ``Matching Words'' section required candidates to give ``thrifty'' as a synonym for ``frugal''. The judge found that the section on the website headed ``Longer maths'' also ``contained truth''. He referred to an email dated 10 September 2013 in which the University told the Council that there were ``4 maths Qs (6 marks) where day 2 candidates may be at an advantage - although the exact Qs are not revealed''.

  9. In the afternoon of 9 September 2013, the Council emailed Mr Matalia, telling him that, if he did not remove all details of the test, it would apply for an injunction against him. In his reply, Mr Matalia refused to remove the details. On 11 September 2013, the Council applied, without notice to Mr Matalia, for an interim injunction requiring him to remove the details, which was granted by HH Judge Barker QC. Personal service could not be effected until 13 September 2013, by which time Mr Matalia had removed the details from his website. Mr Matalia said that he did so before he knew of the injunction but the judge thought that unlikely.

  10. The interim injunction was continued by HH Judge Cooke at a hearing on 7 October 2013, before which Mr Matalia made a witness statement in which he gave an explanation as to how he had come to know of the information he published. He stated that he happened to be at one of the schools at which the test was taken on 7 September 2013, because his younger son was due to start there the following week, and he overheard comments from children who had just taken the test, as well as later receiving a call from a parent who disclosed some of the contents of the test. Newey J found that this gave ``at best, a misleading picture''.

  11. In the course of his cross-examination before Newey J, Mr Matalia accepted that his nephew sat the test on 7 September 2013 and that he learnt about the comprehension question about lemurs from him. It transpired that Mr Matalia's nephew had earlier taken the 11-plus test for another area, and that Mr Matalia had posted some details of that test on his website. Mr Matalia gave evidence that the information published about the test used by the Council largely reflected predictions he had already posted on his website. The judge rejected this evidence and found that the screenshots on which Mr Matalia relied were not genuine but were created only in the course of the proceedings.

  12. Before the trial, Mr Matalia refused to give any undertakings, saying in an email to the Council that, quite apart from expecting to win, ``it is financially advantageous for me to go to trial and the publicity and media details will be invaluable for my sites.'' He also stated that he understood that ``there is a surprise waiting for [the Council] for this year's 11+ exams. I won't spoil the fun....I did not ask for help, have no involvement, direct or indirect and no contact numbers. I understand the content on my site last year will be insignificant in comparison.''

  13. Newey J granted a final injunction prohibiting Mr Matalia from (i) re-publishing or disclosing before 1 September 2016 the information that had appeared on his website, or (ii) publishing, re-publishing or disclosing the contents the 11-plus tests taken in September 2013, 2014 and 2015 until 1 September 2016, 2017 and 2018 respectively.

    The judgment

  14. The judge recorded counsel then appearing for Mr Matalia as being ``inclined to accept that information about the contents of Warwickshire's 11 Plus test was initially confidential''. The judge continued that ``that was clearly the case''. The Council's principal witness had referred in evidence to the ``extreme care that is taken to ensure that the content of the papers is not disclosed before students take them''.

  15. At [34], the judge said:

    ``It appears to me, too, that it would have been obvious to Mr Matalia, and to any other reasonable person, that the Council did not want information about the contents of the 11 Plus test to be disseminated.''...

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