Revelations in UK Law

Mr Spearman has argued that these matters, if they are to be criticised at all, should be regarded as relatively trivial. There is, for example, a dispute as to the extent to which BP personnel were involved in the project.

On the other side of the line, or so it seems to me, would fall private conversations in a domestic environment (including at any rate some discussion about business matters). For example, one would expect most people from time to time to come home from work and to feel free to unburden themselves about the horrors of the day – whether to a wife, husband, lover, mistress or partner (homosexual or otherwise).

It is not the subject-matter which determines the issue in those cases, but the circumstances in which the opinions or information may be imparted. The entitlement to protection springs from the nature of the confidential relationship itself: cf Argyll v Argyll (cited above) at 329–30. It is necessary to have regard to any such pre-existing relationship, and the duties of confidence to which it correspondingly gives rise.

Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case.

For these reasons, the test to be applied when considering whether it is necessary to restrict freedom of expression in order to prevent disclosure of information received in confidence is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached.

When an ex parte application is made for a Mareva injunction, it is of the first importance that the plaintiff should make full and frank disclosure of all material facts. He ought to state the nature of the case and his cause of action. Equally, in fairness to the defendant, the plaintiff ought to disclose, so far as he is able, any defence which the defendant has indicated in correspondence or elsewhere.

It is possible, I think, to envisage cases where, even in the light of widespread publication abroad of certain information, a person whom that information concerned might be entitled to restrain publication by a third party in this country. The publication in England would be more harmful to her than publication in America. Similar considerations would apply to, say, a publication in America by the medical adviser to an English pop group about diseases for which he had treated them.