[2025] UKUT 308 (AAC)

The Appellant’s case before the First-tier Tribunal, regarding the law of confidence, was largely that a duty of confidence would be incompatible with the asserted implied duty under section 405 EA 1996. However, the Tribunal did make various wider findings of fact, and rulings, about the application of the law of confidence:

the email of 8 November 2021 by which the Slides were provided to the School stated, “‘could I request that these are not shared further, and that they are deleted once you’ve used them to clarify anything with the parent?” The Tribunal ruled:

“140.

We accept on the basis of this email that the slides were provided to the School in circumstances importing an obligation of confidence. The wording is akin to an express statement that the information is being provided in confidence. Any reasonable person would have realised on the basis of that email that the slides were being given to the School in confidence…”;

the Slides / information within them had the ‘necessary quality of confidence’ because “they are a unique product that has been created by SoSE. The slides were not public knowledge or publicly available” (paragraph 140);

SoSE would suffer a detriment were the Slides to be disclosed. Had providers been freely disclosing their materials in January 2022, it was unlikely that the Secretary of State for Education would have needed to write to schools in March 2023. The Secretary of State’s letter “strongly suggests that providers were not freely disclosing their materials at the relevant time” (paragraph 143). While there were many freely available resources about ‘consent’, “a ready-made set of slides created by an experienced organisation would be attractive to competitors and to schools” and “would be likely to significantly decrease the appeal of engaging SoSE to deliver this particular lesson on consent” (paragraph 144). Also, “enforcing copyright is slow, expensive and uncertain” (paragraph 144);

regarding the public interest defence to an action for breach of confidence, the Tribunal instructed itself that, “we are considering the public interest in disclosure to Ms Page as a member of the public i.e. we must consider the public interest in disclosure to the world” (paragraph 147);

the Tribunal found in paragraph 150 that “SoSE were willing to attend a meeting with a parent whose child had attended the session to show them the slides and to talk through the content” and “this offer accords with SoSE’s general practice of offering to run through the sessions with parents”. These factors “significantly reduce the public interest in ordering disclosure of these slides to the public in general” (paragraph 151). The Tribunal also instructed itself that “an important factor in the balance” was the public interest in “the importance of upholding duties of confidence”;

the Tribunal identified a number of factors in support of the proposition that disclosing the information sought, despite it being subject to an obligation of confidence would be in the public interest:

the above-mentioned public interests were served by “the availability of a ‘run through’ where parents can see the slides and are talked through the content”. It did not make a difference that no such ‘run through’ occurred in the Appellant’s case (paragraph 157);

the Tribunal accepted some residual public interest that would be served by disclosure, rather than a ‘run through’ alone (convenience, facilitation of parent-child discussions and enabling more effective parental complaints) (paragraph 158);

more generally, disclosure would be of some value to the public who may wish to know the content of publicly funded sex education, although that was limited in a case such as this where the information consisted of one set of slides on a particular topic (paragraph 159). The Tribunal also accepted a transparency related public interest in disclosure of educational materials of “organisations such as SoSE” in the light of “public debate and sensitivity” relating to political impartiality and partisan teaching. However, that was a limited interest in this case since the materials sought concerned a single lesson (paragraph 161).