Attorney General v Blake

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD WOOLF, MR
Judgment Date16 Dec 1997
Judgment citation (vLex)[1997] EWCA Civ J1216-19
Docket NumberCHANF 96/0666/B

[1997] EWCA Civ J1216-19

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CHANCERY DIVISION

(THE VICE CHANCELLOR)

Royal Courts of Justice

Strand

London WC2

Before:

The Master of the Rolls

(Lord Woolf)

Lord Justice Millett

Lord Justice Mummery

CHANF 96/0666/B

Her Majesty's Attorney General
Plaintiff/Applicant
and
George Blake
Defendant/Respondent

MR P HAVERS and MISS M VITORIA QC with MR A ROBERTSON (Mr S Richards 6.10.97) (Instructed by The Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Appellant

LORD LESTER QC (6.10.97) LORD FALCONER QC (1.12.97) and MR P SAINI appeared as Amicus Curiae (Instructed by Messrs B M Birnberg & Co, London SE1 1NN) appeared on behalf of the Respondent

LORD WOOLF, MR
1

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

2

The Background to the Appeal

3

The issues which this appeal raises are of considerable importance. They involve consideration of whether Her Majesty's Attorney General ("The Attorney") is entitled to any remedy in (a) private or (b) public law to prevent a former member of the Secret Intelligence Services ("SIS") receiving substantial royalties for the publication of a book which he has written, when the submission of the manuscript of the book for publication was in breach of contract and a criminal offence and when certain information contained in the manuscript had been, but was no longer, secret or confidential.

4

The appeal is by the Attorney from the decision of Sir Richard Scott, Vice Chancellor, who held that in these circumstances there was no remedy in private law available to the Attorney on behalf of the Crown. The Vice Chancellor did not deal with the position in public law, since it was only as a result of this court indicating on the first day of the hearing of the appeal that they would like to hear argument on the position in public law that the Attorney subsequently sought leave to amend his Statement of Claim so as to rely on public law.

5

The respondent to the appeal, George Blake, took no part in the hearing before the Vice Chancellor or on the hearing of this appeal. However, both before the Vice Chancellor and on this appeal, Lord Lester of Herne Hill QC and Mr Pushpinder Saini, as Amici Curiae, deployed before this court, all the arguments which the respondent might have wished to present to the court if he had been present. In relation to the position in private law the Attorney was represented by Mr Philip Havers QC, Miss Mary Vitoria QC and Mr Stephen Richards. On the adjourned hearing at which the arguments as to the position in public law were advanced, the Court heard further argument from Lord Charles Falconer QC, the Solicitor General, on behalf of the Attorney, and Mr Pushpinder Saini, as Amici.

6

The Vice Chancellor has decided what he described as broadly "two issues. First, whether, in writing and authorising the publication of the book, the defendant was in breach of duties he owed to the Crown. Second, whether, if the defendant was in breach of duty as alleged, the proprietary consequences for which the plaintiff contends, namely the copyright in the book, and the profits derived therefrom belong in equity to the Crown" ( [1997] Chancery 84 at p.91D). The Vice Chancellor, in coming to the conclusion that the Attorney was not entitled to any remedy and that the action should be dismissed, decided that the duty owed by former members of the Security Services not to disclose secret or confidential information acquired by them in the course of their service did not extend to information which was no longer secret or confidential and therefore the respondent was not in breach of any duty which he owed to the Crown. The Vice Chancellor did, however, suggest that, if the respondent had owed the Crown the duties contended for, then the writing and publication of the book would have constituted a breach of those duties and the respondent, as a wrongdoer, would in equity be required to hold the fruits of his wrongdoing, namely the benefit of the copyright in the book and the profits derived by him therefrom, for the Crown.

7

At the adjourned hearing, the Solicitor General argued that the Attorney, in his role as the guardian of the public interest, was entitled to seek an injunction to prevent the defendant from receiving any sums due to him as a result of his crime. The defendant had been represented by solicitors until 12 August 1994. The solicitors' application to come off the record was then granted. Subsequently, documents were served upon the respondent in accordance with directions made by Carnwath J on 26 July 1995. During the interval between the two hearings before this Court the proposed amendment to the Statement of Claim to rely on the position in public law was served on the respondent in the same way, but there has been no response. This is not surprising as the defendant has played no part before either Court. Jonathan Cape Limited, who as third parties were notified of the trial, also took no part.

8

The facts

9

These are well known and can be summarised very shortly. The respondent was from 1944 until 3 May 1961 a member of the SIS. Between 1951 and his arrest in 1960 the respondent became an agent for the Soviet Union and betrayed this country by disclosing secret information of considerable value. On 3 May 1961 the respondent pleaded guilty to five counts of unlawfully communicating information, contrary to section 1(1)(c) of the Official Secrets Act 1911. He was sentenced to 42 years imprisonment, but in 1966 he escaped from prison and eventually arrived in Moscow where he now lives.

10

The action arises out of the autobiography of the defendant which is entitled "No Other Choice". It was published by Jonathan Cape Limited on 17 September 1990. In addition to other matters, in his autobiography he describes his activities on behalf of the KGB and his trial and imprisonment and subsequent escape. As the Vice Chancellor said (p.90 A–B) :

"The book may fairly be described as his apologia for the course his life has taken.…Substantial parts of the contents relate to the defendant's activities as a member of the SIS and are based on information acquired by him while an SIS Officer."

11

The government did not have any knowledge of the book until its publication was first announced in the press. The defendant had not sought, nor has he received, any licence or permission from the Crown for the publication of the book and the manuscript was not submitted for prior approval. A sum of £90,000 remains payable by the publishers. Their contract with him provided for royalties of £50,000 payable on signing the contract, £50,000 on delivery of the final manuscript and £50,000 on publication of the book.

12

It is obvious that, if the respondent had not been a notorious spy who had also dramatically escaped from prison, royalties of this order would never have been paid to him for his autobiography.

13

The Attorney has never sought to restrain publication of the book. Instead he seeks to extract from the defendant any financial benefit he may obtain from the publication of the book. He also now contends that he is entitled to an injunction to restrain the defendant from receiving any financial proceeds derived from the book, which have not yet been paid, or any benefit which represents those proceeds. No injunction is claimed against Jonathan Cape Limited. However, if an injunction is granted against the respondents, and Jonathan Cape Limited are given notice of that injunction, they would incur liability if they were a party to the respondent breaching the injunction. The sums already paid to the respondent are realistically regarded as irrecoverable.

14

At the outset of the hearing before the Vice Chancellor, Mr Havers QC commenced his submissions accepting that "in writing the book the defendant had not committed any breach of his duty of confidence which he owed to the Crown. The information contained in the book that related to the SIS, or that had been obtained by the defendant as a member of the SIS was not by 1988, he said, any longer confidential. The action is not, therefore, based on an alleged breach of a continuing duty of confidence. It was based, Mr Havers said, "on a breach of fiduciary duty that was independent of any concurrent duty of confidence that the defendant might have owed."

15

Before the Vice Chancellor, the Attorney therefore relied on a breach of fiduciary duty that was independent of any concurrent duty of confidence that the defendant might have owed. The duty is set out in paragraph 3 of the Statement of Claim and is formulated in these terms :

"in the premises the defendant owes and has at all material times owed to the Crown a duty (i) not to use his position as a former servant of the Crown so as to generate a profit or benefit for himself, (ii) not to use any information imparted to him in his capacity as a servant of the Crown so as to generate such a profit or benefit and (iii) to give restitution to the Crown of any such profit or benefit generated by misuse of his position and/or—the information aforesaid."

16

The Vice Chancellor considered that the way duties were formulated was "too wide to be acceptable". However, he readily accepted that the former members of the SIS owed to the Crown a life long duty not to disclose confidential information acquired by them in the course of their duties. He regarded the Attorney General v Guardian Newspapers Limited (No 2) [1990] 1 AC 109 as providing clear authority for this. However, the Vice Chancellor did not regard the speeches in that case as providing any support for a duty extending beyond not disclosing...

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