Confidence, privacy, and incoherence

Abstract

Bloomberg v ZXC is only the fourth case in the (apparently) tortious action known as ‘misuse of private information’ (MPI) to reach our highest court. And yet, it is entirely arguable that Bloomberg ought not to have been pleaded in MPI in the first place. Prima facie, its facts fall within the wellknown Spycatcher formulation of the equitable action for breach of confidence (BoC). Pleading it in MPI, whilst plausible, gives rise to a wholly unnecessary debate about the relationship between our primary privacy-protecting tort and its reputation-protecting counterpart. Simply pleading the case in BoC would have avoided this. But the case was pleaded in MPI only and dealt with on that basis by the High Court, Court of Appeal and Supreme Court. Clearly, claimant counsel were convinced this was either the only or best way to put the case. This leaves us, however, with more questions than answers. For it further obscures the already murky relationship between MPI and BoC, making it even more difficult than it had already become to determine precisely what the formal lineage of each is. The desirability of formal coherence is often prayed in aid by jurists and legal scholars alike as an important component of the rule of law. It may be that this