Eleven plus and Spycatcher

This one is a little outside our normal remit, but it covers Education, and hence children, and it is a bit unusual. In fact, even though it is a question about the legal implications of leaking exam questions it would actually make a perfect legal exam question – which I’m sort of leaking in advance of anyone actually doing it.

Matalia v Warwickshire County Council 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/991.html

Mr Matalia owned a website. I’m not sure what else he was doing on the website, but one of the things that he did in 2013 was post some information about the contents of the 11 plus exam being used in Warwickshire after it had taken place.

He was able to learn what the contents were by making some enquiries of children who had sat the exam (I believe his nephew was one of said children)

So what? What earthly use is knowing the contents of an exam AFTER the event? That’s like someone running up to you with a hot tip for the Grand National and telling you that Red Rum won it three times in the Seventies. It’s not inaccurate, but it isn’t useful.

Well, except that not everyone who sits the 11 plus exam in Warwickshire does so at the same time  (which I personally think is something of a flaw in the security of their system, which Mr Matalia has exposed). There are three separate examination sitting dates, all using the same paper. So if you are taking the test on the third of those sitting dates and you know what is in the test because someone who was in sitting date one tells you, you have an advantage.

(Assuming there’s a grade curve, rather than a hard pass mark, it is utterly disdvantageous to people who sat the exam on the first date to help out people sitting later on, and actually if it were me, I’d tell them the questions were largely about the role of crocodiles in Egyptian mythology so they’d crash and burn, but that’s by the by)

Here’s what went onto Mr Matalia’s website

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

…

A. 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.

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

• 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”.

It doesn’t sound as though Mr Matalia’s nephew was some sort of super-spy, taking detailed notes of the exam questions as part of a well designed scheme, but rather that those were just the bits he happened to remember when asked about them.  I mean, knowing that the Comprehension question was based on an article about lemurs doesn’t help you in the slightest. It isn’t going to be beneficial to cram the Wikipedia entry on lemurs to give you an edge. Also ‘cinema tickets, time calculations and prices’  is, when you boil it down ‘some questions involving maths’ – which I think most children sitting an Eleven Plus exam would probably anticipate.

But a visitor to the site who would be sitting the exam on one of the two later sitting dates would gain a slight edge (and on at least the thrifty/frugal question would pick up a free mark)

The Council asked Mr Matalia to take the exam spoilers down.  He refused and the Council applied for an injunction. They asked him to take the spoilers down before the trial. He refused.

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.”

Without trying to be unkind, and avoiding any feelings about whether eleven plus exams are a good thing, bad thing, indifferent thing, it does feel from the outside something of an unusual thing for a grown man to do, to post spoilers about an exam to be undertaken by eleven year olds.  I really don’t know what else was going on his website, or how that content fitted into the general scope of the site…  (It would make more sense to me if he were publishing the full questions and answers and charging for access. I don’t really understand the motivation here. It doesn’t seem like a political protest against grammar schools or trying to subvert the system, nor does it actually seem like a monetarised plan. I guess it was simply for the lulz)

Anyway, the Council got their injunction, banning Mr Matalia from posting on his website any information about Eleven Plus examinations in 2013, 2014 or 2015.  This was Mr Matalia’s appeal.

The case was decided on the principle of ‘breach of confidence’  – this has three limbs

• three limbs of the test to establish a breach of confidence set out by Megarry J in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 was satisfied. It is Mr Matalia’s case that none was satisfied.
• The test formulated by Megarry J at p.47 of the report, and subsequently approved and applied many times, is:

“In my judgment, three elements are normally required, if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

Mr Matalia argued at his appeal (and I think it is a decent lawyer argument, though I suspect any normal human being would reject it immediately) – how can the information in an exam paper handed out to 1,600 children have a ‘quality of confidence’ about it? And when the paper was handed out to his nephew, how was there an obligation of confidence imported to him? Of course children talk about exams after they’ve taken them. And these days, they probably do so on social media, thus publishing their conversations.  With that in mind, how can the exam papers have that ‘necessary quality of confidence’?

He doesn’t argue, though it seems blindingly obvious to me – why don’t Warwickshire do their 11 plus exams all on the same day, then they don’t have to worry about this?

• Ground 2 is as follows:

“2. The judge erred in concluding that the Appellant had committed a breach of confidence, given that

2.1 the relevant information which the Appellant had published on his website (“the Information”) was (as was accepted by the Judge, in paragraph 35 of his judgment (“the judgment”)) communicated to him by one or more pupils who themselves were under no duty of confidence in relation to the Information;

2.2 the Information was, in the context (see paragraph 34 of the Judgment, and paragraph 2.4 below), trivial;

2.3 the Information concerned a test about which the deviser of the test (Durham University) said to the Respondent (only 3 days after the 11+ examination from which the Information was believed by the Appellant to be drawn)

2.3.1 “the testing process as a whole would not seem to have been compromised” and

2.3.2 “If there are issues [i.e there was a possibility of late sitters having any “particular advantage” where the Respondent “had concerns”, the Respondent had] the option of excluding these questions from the results”;

2.4 the Respondent had written to the Appellant in April 2011 that

“it would be very very difficult for a child to remember any of the questions in enough detail to pass on to children who are yet to take the test in order for that child to be at any significant advantage” (see paragraph 34 of the judgment);

2.5 websites other than that of the Appellant had revealed and continued to reveal similar information about the content of the 11+ examinations set by the Respondent;

2.6 there was evidence before the Court that persons who acted (for financial reward) as tutors for the 11+ examinations set by the Respondent appeared surreptitiously to use information comparable to the Information in preparing their tutees to take the 11+ examinations administered by the Respondent (see paragraph 6 of the Appellant’s witness statement of 8 December 2014); and

2.7 there was evidence before the Court that children who had taken the 11+ examinations were giving to their friends and relatives who were about to sit the same examination at a later date information which was at least comparable to the Information (see also paragraph 6 of the Appellant’s witness statement of 8 December 2014).”

• Apart from sub-paragraph 2.1 of Ground 2, which clearly relates to the second limb of Megarry J’s test, the other sub-paragraphs appear to relate both to whether the information disclosed by Mr Matalia on his website had the necessary quality of confidentiality about it (limb 1) and to whether its disclosure was to the detriment of the Council (limb 3). As to the other part of limb 3, that the disclosure was unauthorised, it is clear that neither the Council nor any other person authorised the disclosure.

Ground 2.1: chain of confidentiality

• Mr Matalia submits that because he received the information from one or more pupils who were themselves under no duty of confidence in relation to it, he was not himself under any obligation of confidence and was free to publish it as he saw fit. He submits that the candidates were free to disclose the contents of the test and could therefore transmit the contents to others without any duty of confidentiality being imposed on the recipients.
• Although Lewison LJ subsequently clarified that he gave permission to appeal on the entirety of Ground 2, he focussed on this issue in his reasons:

“1. Although the evidence is not entirely clear, it seems to be the case that the pupils taking the test were not told that it was confidential or that they should not discuss the contents of the test with others.

2. If that factual premise is correct then it is arguable that the judge was wrong to find that all three limbs of the test in Coco v Clark were satisfied.”

• Despite this, Mr Bragiel’s skeleton argument made very little of Ground 2.1. He made even less of it in his oral submissions and, in answer to a question from Lindblom LJ, accepted that the issue was whether the information was confidential in nature and whether Mr Matalia realised or should have realised that it was confidential. However, in a note sent to the court after the hearing, Mr Bragiel stated that he had not abandoned reliance on the fact that the children taking the test were not told that the test was confidential or that they should not discuss it with others. He said this was the fundamental factor relied on and was relevant to each of the three limbs of Megarry L’s test.

This is the nub of it – if the nephew wasn’t told, or it wasn’t written on the exam papers ‘this is confidential’ or ‘you must not talk to other people about what is in this test’ or words to that effect, was the test in Coco v Clark satisfied?

This is, however, where we get into law exam territory – literally.  The reference that the Court of Appeal give here is in relation to the Spycatcher trial (a case where a former employee of UK Security Services wrote a book about his experiences, published it in Australia and it was serialised by the Sunday Times with excerpts appearing in other newspapers) and the SPECIFIC reference is

. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”

Come on, how meta is that? A law case about exam papers is decided by reference to a law case that was giving a hypothetical scenario beloved of law teachers.

The Court of Appeal liked this so much that they went back to it

It seems highly improbable that a 10 or 11-year old child would be prohibited from discussing the test with their parents, but that gets Mr Matalia nowhere. First, it does not follow that candidates owe no duty of confidentiality. If the Council became aware that a candidate was proposing to publish questions on social media, I do not see why it could not take steps to restrain it, assuming that the candidate knew that there were to be further sittings of the test. If, by virtue of their age, the candidates were not susceptible to injunctive relief, communication by them would be analogous to the example given by Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) of the confidential document being wafted into the street by an electric fan and picked up by a passer-by.

Secondly, and in any event, it does not follow that because a child can tell his or her parents about questions in the test they have taken, the parents are free to publish that information, knowing that other candidates are yet to take the test. The communication is made by the child in very particular circumstances, as part of the child-parent relationship. Given the confidential character of the information, as will or should be apparent to the parents, it would in my judgment be entirely consistent with principle to impose the duty of confidentiality on the parents, and quite contrary to principle to treat the parents as free to publish the information as they saw fit.

The appeal was refused and the onward secrecy of Warwickshire’s Eleven Plus exams is secured. Hooray. (or Boo, depending on how you feel politically about grammar schools)

(Dragging us back to family law, I’ve written before about how just like Rorschach tests, many of the psychometric tests applied by psychologists in assessment of parents aren’t available online – to stop people deciding in advance how to answer them, or being coached. So I guess this would apply to an enterprising parent who photographed the test paper and tried to publish it. Don’t do that, obviously. That would be a breach of confidence, and you would be made to take it down.)

And just to make us all feel super thick, here’s an O Level Geometry paper from 1957.

Belinda blinked. How on earth was she supposed to answer these questions?