Court of Appeal rejects appeal against injunction over contents of 11-plus tests

The Court of Appeal has rejected an appeal against a final injunction restraining the appellant from publishing or disclosing the contents of 11-plus tests used by a county council.

The tests used by Warwickshire County Council were taken by candidates in the years 2013 to 2015. There are six grammar schools in the county.

The local authority had obtained an injunction against Amit Matalia, 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 was the restraint of breach of confidence.

Mr Justice Newey in the High Court had found that Matalia had obtained details of some questions in the 2013 tests from his nephew and perhaps other candidates, who had sat the tests on the first of three dates.

Matalia then published those details on a publicly-accessible website before the second date. Mr Justice Newey found that information about the contents of the tests was clearly confidential and that it would have been obvious to Matalia, and to any other reasonable person, that the council did not want information about the contents of the test to be made public.

Lord Justice David Richards in the Court of Appeal said: “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.”

Matalia applied for permission to appeal on a wide variety of grounds. He was granted permission on limited grounds, namely that:

• No duty of confidence was owed to the council which therefore did not have standing to bring the claim;
• The information had not been imparted to him in confidence and that the information published was in fact insufficient to compromise the tests.

In Matalia v Warwickshire County Council [2017] EWCA Civ 991 the Court of Appeal rejected Matalia’s appeal.

Lord Justice David Richards said: “The judge was right to say ‘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’. When the judge referred to the council not wanting the information to be disseminated, he was not referring to a personal desire but to a substantial and legitimate interest in preventing the dissemination of the contents of the tests.

“Subject therefore to the suggested need for a chain of confidentiality arising under the second ground of appeal, I consider that the council had, in the circumstances of this case, the standing to bring proceedings to protect the confidentiality of the tests.”

On the second ground, the Court of Appeal judge said Mr Justice Newey had correctly held that an injunction lay against Matalia whether or not the children who supplied information to him were themselves under any duty of confidentiality.

“The confidential character of the information was obvious to Mr Matalia, as was the fact that the council did not want and had not authorised its publication on his website,” Lord Justice David Richards said.

The Court of Appeal judge added that there was more than sufficient material on which the judge could conclude that the information disclosed by Matalia was far from trivial and had the necessary quality of confidentiality about it.

“It plainly does not follow from the view that the testing process ‘as a whole’ had not been compromised that there was no breach of confidence in the disclosures made by Mr Matalia,” he said.

Lord Justice David Richards said he did not consider that any of the grounds of appeal were well-founded.

“In my judgment, the judge was fully entitled to grant the injunction in the terms of his order and I would dismiss the appeal,” he said.

Lord Justice Lindblom and Lady Justice Black agreed.