[2025] UKUT 308 (AAC)

the Appellant criticises the Tribunal for failing properly to consider whether the first condition in Coco v Clark was met (information must have the necessary quality of confidence), and simply assumed the Slides were confidential in the light of SoSE’s email to the School on 8 November 2021. However, the Appellant’s case before the Tribunal did not include the argument that SoSE’s email was incapable of imposing an obligation of confidence. In fact, the email did not feature in the Appellant’s arguments at all;

the Appellant did not argue before the Tribunal that the Slides had been prepared for widespread dissemination. The fact that, on an action for breach of confidence, the provider of information is required to show confidentiality makes no difference here. The Appellant did not put the ‘widespread dissemination’ point to the Tribunal and cannot now seek to challenge its decision for failing to find widespread dissemination. The same applies to the argument that the Tribunal failed to recognise that the Commissioner’s and SoSE’s case amounted to an attempt to reestablish confidentiality after it had been irrevocably lost at the Session;

the argument that, if the information within the Slides was confidential, pupils at the Session could be restrained from talking about it, was not put to the Tribunal. It was therefore unsurprising that the Tribunal made no finding as to whether the pupils were bound by an obligation of confidence.

it was not put to the Tribunal that it ought to draw the inference that the information within the Slides had, before the Session, already been put in the public domain;

it was not put to the Tribunal that the real ‘added value’ offered by SoSE was the services of its facilitators rather than the Slides;

it was not put to the Tribunal that the School’s RSE policy was ‘highly relevant’ to the question whether an obligation of confidence had been established.

the Appellant submits that the Tribunal made an untenable finding that SoSE’s email of 8 November 2021 contained wording that was akin to an express statement that the information was being provided in confidence. Firstly, the words used – ‘could I request’ – were not consistent with a person requiring a recipient to keep information secret. Secondly, the notional reasonable person deployed by the Tribunal to analyse the import of the email should have been a notional reasonable person aware of the statutory educational context. The second argument may be disposed of shortly. It rests on an assumption about the legal nature of the statutory context that I rejected in deciding Ground 1. The second argument can only succeed if the Tribunal’s interpretation of the email, for the purposes of the law of confidence was irrational. It was not an irrational interpretation of the email read as a whole. SoSE’s email also asked the School to delete the Slides once used to clarify ‘anything with the parent’. The Tribunal was entitled to interpret this email, sent by a non-lawyer, as akin to an express statement that information was provided in confidence and that interpretation does not show that the Tribunal misunderstood or misapplied the law of confidence;

it is argued that the Tribunal failed adequately to address whether there could not be anything in the information / Slides that could be confidential. Again, the Appellant did not argue before the Tribunal that the nature of the Slides was such that they did not have the ‘necessary quality of confidence’. In those circumstances, the Tribunal, having instructed itself on the relevant authorities including those which emphasise the need for the application of ‘human ingenuity’ in order to render information confidential, adequately explained why the information did have the necessary quality of confidence. For the same reason, the Appellant’s argument that the Tribunal’s acknowledgement that the information within the Slides ‘was not particularly sensitive’ demonstrates no error of law in its other findings;