Ashdown v Telegraph Group Ltd

JurisdictionEngland & Wales
JudgeLORD PHILLIPS
Judgment Date18 July 2001
Neutral Citation[2001] EWCA Civ 1142
Docket NumberCase No: A3/2001/0213
CourtCourt of Appeal (Civil Division)
Date18 July 2001
The Right Honourable Paddy Ashdown, Mp Pc
Respondent
and
Telegraph Group Ltd
Appellant

[2001] EWCA Civ 1142

Before:

Lord Phillips Mr

Lord Justice Robert Walker and

Lord Justice Keene

Case No: A3/2001/0213

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

CHANCERY DIVISION

Vice-Chancellor Morritt

Royal Courts of Justice

Strand, London, WC2A 2LL

Richard Spearman, QC (instructed by Bates Wells & Braithwaite for the Respondent)

Andrew Nicol, QC and James Mellor (instructed by Olswang for the Appellant)

LORD PHILLIPS

This is the judgment of the Court to which all members have contributed.

1

This appeal raises the important question of whether the Human Rights Act 1998 ("the Human Rights Act") has impacted on the protection afforded to owners of copyright by the Copyright, Designs and Patents Act 1988 ("the Copyright Act"). The appellants ("Telegraph Group") contend that it has. They contend that, when considering whether an actionable breach of copyright has occurred or the remedies appropriate in the event of such a breach, the Court must now have regard to the right of freedom of expression conferred by Article 10 of the European Convention of Human Rights ("the Convention"). This, so Telegraph Group contend, requires the Court to give individual consideration to the facts of each case in order to assess the impact of Article 10.

2

Sir Andrew Morritt, Vice-Chancellor, has rejected this contention. He has held that the Copyright Act already strikes the appropriate balance between the rights of owners of copyright and the right of freedom of expression, and that it is not necessary, in order to comply with Article 10 of the Convention, to do more than apply the provisions of the Copyright Act to the relevant facts. That, in this case, he has done and, in a judgment delivered on 11 January 2001 [2001] 2 WLR 967 has held that the Telegraph Group infringed the respondent's copyright. Against that judgment Telegraph Group now appeal.

The facts

3

At the general election on 1 May 1997 the Labour party won 419 seats, the Conservatives 165, the Liberal Democrats 49 and other parties 29. The scale of Labour's landslide was expected by many to put an end to any plans for formal co-operation between Labour and the Liberal Democrats and for review of the voting system (with the possible introduction of some form of proportional representation). In fact, however, high-level contacts continued. This case is concerned with a confidential record of a particularly important meeting held at 10 Downing Street on the evening of 21 October 1997.

4

The record was made by the leader of the Liberal Democrats, then invariably referred to as Mr Paddy Ashdown. He has since relinquished the leadership of the Liberal Democrats and has been honoured, first with a knighthood and then with a life peerage. But he is not so readily recognisable as Sir Jeremy Ashdown or Lord Ashdown and it is simpler (and involves no disrespect) to refer to him as he was known at the time of the events with which the Court is concerned.

5

Since he became leader of the Liberal Democrats in 1988 Mr Ashdown had kept detailed diaries and other records of his life and political career. He treated these as confidential and kept them secure. If he showed them to others it was on a confidential basis. His record of the meeting on 21 October 1997 was prepared on that basis. The meeting had been attended by only five persons: apart from Mr Ashdown they were the Prime Minister, Mr Peter Mandelson, Lord Jenkins of Hillhead and Mr Jonathan Powell. Mr Ashdown dictated his minute of the meeting later that evening and it was typed by his secretary at the House of Commons. Only two copies were made. One was placed with Mr Ashdown's diaries and associated records in a safe in his constituency, Yeovil. The other was read by a few of his closest advisers and then was shredded.

6

About two years later, when it was known that Mr Ashdown was standing down from the leadership of the Liberal Democrats, it also became known that he was thinking of publishing his diaries. He had formed this idea in about February 1999 and spent some time on sorting and editing material. His plans for publication were referred to in a radio interview called 'Resigning Issues' which was broadcast on 16 November 1999. Mr Ashdown referred to the possibility of publication in two stages because of the sensitivity of some of the material. At about this time some of Mr Ashdown's material, including the minute of the meeting on 21 October 1997, was shown in strict confidence to eight individuals who were representatives of newspapers or publishing houses. Considerable interest was shown but no contract was entered into before the publication by the Sunday Telegraph of which Mr Ashdown has complained.

7

By some unknown means a copy of the minute reached the hands of the political editor of the Sunday Telegraph, Mr Joe Murphy. Mr Murphy's evidence was that it came from an individual who did not work for Mr Ashdown, or for the Liberal Democrats, and who thought that "the record should be set straight". The Sunday Telegraph did not pay for the minute. Mr Murphy knew that the minute was authentic, and that it was confidential. Indeed it is described as a "leaked document" and a "secret record" in the first and second sentences of his front-page article in the Sunday Telegraph on 28 November 1999.

8

The Sunday Telegraph of that date published three separate items on the minute. There was the front-page article by Mr Murphy; a major story (headed exclusive and illustrated by sketches of the five participants) on pages 4 and 5; and a comment by Mr Matthew d'Ancona, a political columnist, on page 33. Mr Ashdown's Counsel virtually conceded that the items on pages 1 and 33, had they stood alone, would not have been actionable as copyright infringement. The thrust of the attack based on infringement was directed to the main story on pages 4 and 5, which contained several verbatim quotations from the minute.

9

The full text of the minute has not been disclosed in these proceedings. The Court has a redacted copy disclosing only those passages which were either quoted verbatim or closely summarised. But it is possible to see that the minute was a nine-page document and that Mr Murphy has made most use of the last four pages of it. The Court was not given any precise statistics (sensibly, since infringement of copyright is not a matter of statistics) but it appears that very roughly one-quarter of the text of the main article on pages 4 and 5 consisted of verbatim or almost-verbatim reproduction of the minute, and very roughly one-fifth of the minute was reproduced in this way.

10

As to the factual content of the articles, there was some lively reporting of what had been said by the Prime Minister, Mr Ashdown and others. An adequate picture of this can be derived from the Vice-Chancellor's summary of the political comments made by the Sunday Telegraph journalists ([2001] 2 WLR at p.976 C-E):

"The points made by the writers are: (1) the minute confirmed that the Prime Minster had seriously intended to form a coalition Cabinet by the inclusion of two Liberal Democrat members of Parliament in place of two Cabinet ministers who were Labour members of Parliament notwithstanding the large majority he enjoyed as the result of the election in May 1997; (2) the disclosure contradicted the denials emanating from 10 Downing Street; (3) the co-operation between the Prime Minister and [Mr Ashdown] went beyond discussing a coalition Cabinet and extended to assisting the Liberal Democrats to win the by-election then pending in Winchester and the Liberal Democrats toning down their criticism of the Government; (4) had the members of the Labour party known how far the Prime Minister had gone in the formation of a coalition Cabinet their opposition to voting reforms in the wake of the Jenkins Report would have been a full scale revolt."

11

On 6 December 1999 Mr Ashdown commenced proceedings against Telegraph Group, the proprietor of the Sunday Telegraph, making claims for breach of confidence and copyright infringement. He was seeking injunctions and damages (or alternatively an account of profits). On 30 June 2000, after a defence had been served, Mr Ashdown applied for summary judgment under Part 24 of the Civil Procedure Rules in respect of the copyright claim only. This application was made on the basis that Telegraph Group had no real prospect of successfully defending the action, and that there was no other compelling reason for that part of the claim to go to trial (see CPR rule 24(2)).

12

After a two-day hearing in December 2000 the Vice-Chancellor on 11 January 2001 gave judgment against Telegraph Group on the copyright claim. He granted a final injunction against any further infringement and directed disclosure of information to enable Mr Ashdown to exercise his right of election between damages and an account of profits. However the Vice-Chancellor gave permission to appeal and his Order has been stayed pending the appeal.

THE VICE-CHANCELLOR'S JUDGMENT

13

Before the Vice-Chancellor (as in this Court) it was common ground that the minute was a copyright work and that Mr Ashdown is the owner of the copyright. It was also common ground that substantial parts of the minute had been copied in the Sunday Telegraph for 28 November 1999, especially in the main article. Telegraph Group relied on the defence of fair dealing under s.30 of the Copyright Act; on the defence of public interest recognised or preserved by s.171(3) of the Copyright Act; and on provisions of the Human Rights Act including in...

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