Associated Newspapers Ltd v His Royal Highness the Prince of Wales
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE KITCHIN,The Honourable Mr Justice Kitchin,THE HON MR JUSTICE BLACKBURNE |
| Judgment Date | 17 March 2006 |
| Neutral Citation | [2007] EWHC 1685 (Ch),[2006] EWHC 522 (Ch),[2006] EWHC 11 (Ch) |
| Docket Number | Case No: HC05C03452 |
| Court | Chancery Division |
| Date | 17 March 2006 |
[2006] EWHC 11 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
The Honourable Mr Justice Kitchin
Case No: HC05C03452
Hugh Tomlinson QC and Lindsay Lane (instructed by Harbottle & Lewis) for the Claimant
Mark Warby QC and Christina Michalos (instructed by Reynolds Porter Chamberlain) for the Defendant
Hearing dates: 19, 21 December 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand noteshall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application for directions in a summary judgment application. The matter has come before me for two short hearings. The first hearing took place on 19 December and at its conclusion I hoped that the parties would be able to agree a form of order. Regrettably that proved not to be the case and accordingly it was listed again for 21 December. At the end of that hearing I made an order protecting the confidentiality of certain documents relied upon by the Claimant and was asked by counsel for the Defendant to give my reasons in a judgment. That I now do.
The background to the application is set out in a witness statement of Sir Michael Peat. The Claimant has, over a number of years, kept hand written journals detailing his personal impressions and private views of his overseas tours. On the Claimant's return to the United Kingdom he circulates copies of the journals to members of his family, close friends and advisors. These proceedings concern a number of such journals, the dates and titles of which are set out in Confidential Schedule 1 to the Particulars of Claim. The Claimant contends that these journals are confidential and protected by copyright which he owns. One of the journals, described as the Hong Kong Journal, contains recollections of the official visit of the Claimant to Hong Kong in 1997. Sir Michael explains it was circulated to 13 recipients, counting husbands and wives who were sent a copy jointly as one, together with a letter from the Claimant or from his Personal Assistant or Secretary in an envelope marked "Private and Confidential". A list of the recipients of the Hong Kong Journal and an example of a copy covering letter are contained in pages 1 and 2 of Confidential Exhibit 2 to Sir Michael's witness statement.
A Ms Sara Goodall was employed by the Household of the Claimant as a secretary to the Deputy Private Secretary at St James's Palace between 23 May 1988 and 21 December 2000. The Claimant contends she wrongly copied a number of the journals, including the Hong Kong Journal, removed those copies from the Claimant's private office and gave copies of them, through an intermediary, to The Mail on Sunday. Thereafter and, it is said, knowing of their confidential nature, The Mail on Sunday published quotations and other material from the Hong Kong Journal and threatens to make further use of the journals in future newspaper articles. In these circumstances the Claimant contends that the Defendant has acted in breach of confidence and infringed his copyright and threatens so to do.
The Defendant resists the claim and intends to contest the application for summary judgment. Through counsel it has said that it anticipates serving reasonably substantial evidence dealing with a range of factual matters including the Claimant's constitutional role and functions, the Claimant's history of private lobbying of democratically elected persons on topics of political importance, the Claimant's history of voluntary disclosure to the public of his views on a range of topics and the Claimant's boycotting of certain official dinners.
The parties have agreed a timetable for the further hearing of the application which will allow them sufficient time to gather and address this evidence and the application is to be listed for hearing not before 13 February 2006 with a time estimate of 1 day. However the parties were unable to agree as to what, if any, order should be made in the meantime to protect the identities of the journals listed in Confidential Schedule 1 to the Particulars of Claim and the contents of pages 1 and 2 of Confidential Exhibit
This lack of agreement had two aspects: first, whether the information is at least arguably confidential and secondly, whether it was appropriate to make an order under CPR 31.22.
As to Confidential Exhibit 2, the Defendant accepted shortly before the hearing on the 19 December:
"1. That the information contained in pages 1 and 2 of Confidential Exhibit 2 to the Witness statement of Sir Michael Peat will not be disclosed until after judgment on the Claimant's summary judgment application, even if these pages are read by the court or referred to in open court.
2. That it will not disclose or copy or cause to be disclosed or copied pages 1 and 2 of Confidential Exhibit 2 to the Witness statement of Sir Michael Peat except for the purposes of these proceedings.
SAVE that these undertakings will not apply to any information:
(a) that has entered into the public domain otherwise than by virtue of a breach of undertaking;
(b) disclosed with the written consent of the Claimant's solicitors."
In my judgment it was right to do so. I am satisfied that the Claimant has established at least an arguable case that the names of the recipients of the Hong Kong Journal and the copy private letter constitute private confidential information which the Claimant is entitled to protect. There is no suggestion that preservation of the confidentiality of this information over until the hearing in February will cause the Defendant any damage.
As to the identities of the journals listed in Confidential Schedule 1, the position is a little more complicated. By letter dated 9 December the Defendant's solicitors wrote giving the following undertaking:
"The Defendant undertakes that it will not disclose or copy or cause to be disclosed or copied Confidential Schedule 1 to the Particulars of Claim except (1) for the purposes of these proceedings or (2) to the extent that it has entered into the public domain otherwise than by virtue of a breach of undertaking or (3) with the written consent of the Claimant's solicitors."
However, I gained the impression from the Defendant's skeleton argument before the hearing on the 19 December that it was not prepared to continue any undertaking in respect of Confidential Schedule 1. Further, on that day a witness statement of Ms Elizabeth Hartley, a partner in the Defendant's solicitors, was served. That statement exhibited extracts from the Clarence House website showing official visits made by the Claimant and giving their dates, a press notice dated 18 October 2005 and extracts from the biography of the Claimant by Jonathan Dimbleby. In the light of this evidence it appeared that it was not accepted that any of the information contained in Confidential Schedule 1 was confidential.
At the hearing on 19 December I was taken to some of the materials exhibited to the statement of Ms Hartley. These do indeed show that the visits which the Claimant has made are in the public domain. It is also in the public domain that the Claimant makes private journals. However, the materials do not identify the journals written by the Claimant and taken by Ms Goodall and delivered into the hands of the Defendant. Nor has the information come into the public domain in any other way. This is the information which is set out in Confidential Schedule 1 and which the Claimant seeks to protect pending the full hearing of the summary judgment application. The fact that the Claimant has written particular journals which have been taken by Ms Goodall is personal private information of a sensitive nature. Accordingly, it is, at least arguably, confidential private information which the Claimant is entitled to protect.
I should also note that during the course of the hearing on the 19 December, I understood counsel for the Defendant to accept that, contrary to the impression I had gained from the skeleton argument, the undertaking offered in the letter of 9 December and to which I have referred would be continued over until the summary judgment application. Indeed counsel made clear it was accepted that the contractual undertaking given remained binding on the Defendant until that time. Further, the Defendant accepted that, until that time, it would maintain as confidential the identities of the journals listed in Confidential Schedule 1. However, it submitted both at the hearing on 19 December and at the further hearing on 21 December that this information was not confidential in character. For the reasons I have given, however, I am satisfied that at this stage of the proceedings the Claimant has shown an arguable case that the information which is set out in Confidential Schedule 1 is entitled to protection. Once again, there is no suggestion that preservation of the confidentiality of this information over until the hearing in February will cause the Defendant any damage.
I turn then to consider the request for an order pursuant to CPR 31.22. This reads:
"31.22 (1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been...
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