Attorney General v Guardian Newspapers Ltd and Others (No. 2)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel, Lord Brightman, Lord Griffiths, Lord Goff of Chieveley, Lord Jauncey of Tullichettle
Judgment Date13 Oct 1988

[1988] UKHL J1013-1

House of Lords

Lord Keith of Kinkel

Lord Brightman

Lord Griffiths

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Her Majesty's Attorney General
(Appellant)
and
The Observer Limited and Another
(Respondents)
Her Majesty's Attorney General
(Original Appellant and Cross-Respondent)
and
The Times Newspapers Limited and Another
(Original Respondents and Cross-Appellants)
(Conjoined Appeals)
Lord Keith of Kinkel

My Lords,

1

From 1955 to 1976 Peter Wright was employed in a senior capacity by the counter-espionage branch of the British Security Service known as M.I.5. In that capacity he acquired knowledge of a great many matters of prime importance to the security of the country. Following his retirement from the service he went to live in Australia and later formed the intention of writing and publishing a book of memoirs describing his experiences in the service. He wrote the book in association with a man named Paul Greengrass, and it was accepted for publication by Heinemann Publishers Pty. Ltd., the Australian subsidiary of a well known English publishing company. The Attorney-General in right of the Crown, learning of the intended publication of the book, instituted in 1985 proceedings in New South Wales against Mr. Wright and Heinemann Publishers claiming an injunction to restrain the publication in Australia or alternatively an account of profits. Pending trial, Mr. Wright, the publishers and their solicitors gave undertakings not to reveal the contents of the book. The Attorney-General's action failed before Powell J. and again before the Court of Appeal of New South Wales. Special leave to appeal was granted by the High Court of Australia, but the respondents were released from their undertakings. So the book was published in Australia on 13 October 1987, under the title of Spycatcher. On 2 June 1988 the High Court dismissed the Attorney-General's appeal upon the sole ground that an Australian court should not accept jurisdiction to enforce an obligation of confidence owed to a foreign government so as to protect that government's intelligence secrets and confidential political information. In the meantime Spycatcher had on 14 July 1987 been published in the United States of America by Viking Penguin Inc., a subsidiary of an English publishing company. Her Majesty's Government had been advised that, in view of the terms of the First Amendment to the United States Constitution, any attempt to restrain publication there would be certain to fail. Publication also took place in Canada, the Republic of Ireland, and a number of other countries. Her Majesty's Government decided that it was impracticable and undesirable to take any steps to prevent the importation into the United Kingdom of copies of the book, and a very substantial number of copies have in fact been imported. So the contents of the book have been disseminated world wide and anyone in this country who is interested can obtain a copy without undue difficulty.

2

The earlier history of the litigation in England of which the present appeals are the culmination, is set out in the judgment of Scott J. [1988] 2 W.L.R. 805, 814-819. There is no need to recapitulate it. The issues raised in the litigation are thus summarised in the judgment of Sir John Donaldson M.R. in the Court of Appeal [1988] 2 W.L.R. 805, 871;

  • "(1) Were the 'Observer' and 'The Guardian' in breach of their duty of confidentiality when, on 22 and 23 June 1986, they respectively published articles on the forthcoming hearing in Australia? If so, would they have been restrained from publishing if the Attorney-General had been able to seek the assistance of the court?

  • (2) Was 'The Sunday Times' in breach of its duty of confidentiality when, on 12 July 1987 it published the first extract of an intended serialisation of Spycatcher?

  • (3) Is the Attorney-General now entitled to an injunction (a) in relation to the 'Observer' and 'The Guardian' and (b) in relation to 'The Sunday Times' with special consideration to further serialisation?

  • (4) Is the Attorney-General entitled to an account of the profits accruing to 'The Sunday Times' as a result of the serialisation of Spycatcher?

  • (5) Is the Attorney-General entitled to some general injunction restraining future publication of information derived from Mr. Wright or other members or ex-members of the Security Service? …"

3

As regards issue (1) Scott J. and the majority of the Court of Appeal (Dillon and Bingham LL.J., Sir John Donaldson M.R. dissenting) held that the publication of the articles in question was not in breach of an obligation of confidence.

4

On issue (2) Scott J. and the majority of the Court of Appeal ( Bingham L.J. dissenting) held that the publication of the first extract from Spycatcher was in breach of an obligation of confidence.

5

Upon issue (3) Scott J. and the Court of Appeal held that the Attorney-General was not entitled to an injunction against the "Observer" and "The Guardian" nor (Sir John Donaldson M.R. dissenting) against further serialisation of Spycatcher by "The Sunday Times."

6

As to issue (4) Scott J. and the majority of the Court of Appeal ( Bingham L.J. dissenting) decided this in favour of the Attorney-General.

7

Issue (5) was decided against the Attorney-General both by Scott J. and by the Court of Appeal.

8

The Attorney-General now appeals to your Lordships' House upon all the issues on which he failed below. "The Sunday Times" cross-appeals against the decision on account of profits.

9

The Crown's case upon all the issues which arise invokes the law about confidentiality. So it is convenient to start by considering the nature and scope of that law. The law has long recognised that an obligation of confidence can arise out of particular relationships. Examples are the relationships of doctor and patient, priest and penitent, solicitor and client, banker and customer. The obligation may be imposed by an express or implied term in a contract but it may also exist independently of any contract on the basis of an independent equitable principle of confidence: Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. (1948) 65 R.P.G. 203. It is worthy of some examination whether or not detriment to the confider of confidential information is an essential ingredient of his cause of action in seeking to restrain by injunction a breach of confidence. Presumably that may be so as regards an action for damages in respect of a past breach of confidence. If the confider has suffered no detriment thereby he can hardly be in a position to recover compensatory damages. However, the true view may be that he would be entitled to nominal damages. Most of the cases have arisen in circumstances where there has been a threatened or actual breach of confidence by an employee or ex-employee of the plaintiff, or where information about the plaintiff's business affairs has been given in confidence to someone who has proceeded to exploit it for his own benefit: an example of the latter type of case is Seager v. Copydex Ltd. [1967] 1 W.L.R. 923. In such cases the detriment to the confider is clear. In other cases there may be no financial detriment to the confider, since the breach of confidence involves no more than an invasion of personal privacy. Thus in Duchess of Argyll v. Duke of Argyll [1967] Ch. 302 an injunction was granted against the revelation of marital confidences. The right to personal privacy is clearly one which the law should in this field seek to protect. If a profit has been made through the revelation in breach of confidence of details of a person's private life it is appropriate that the profit should be accounted for to that person. Further as a general rule it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence even where the confider can point to no specific detriment to himself. Information about a person's private and personal affairs may be of a nature which shows him up in a favourable light and would by no means expose him to criticism. The anonymous donor of a very large sum to a very worthy cause has his own reasons for wishing to remain anonymous, which are unlikely to be discreditable. He should surely be in a position to restrain disclosure in breach of confidence of his identity in connection with the donation. So I would think it a sufficient detriment to the confider that information given in confidence is to be disclosed to persons whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way.

10

The position of the Crown, as representing the continuing government of the country may, however, be regarded as being special. In some instances disclosure of confidential information entrusted to a servant of the Crown may result in a financial loss to the public. In other instances such disclosure may tend to harm the public interest by impeding the efficient attainment of proper governmental ends, and the revelation of defence or intelligence secrets certainly falls into that category. The Crown, however, as representing the nation as a whole, has no private life or personal feelings capable of being hurt by the disclosure of confidential information. In so far as the Crown acts to prevent such disclosure or to seek redress for it on confidentiality grounds, it must necessarily, in my opinion, be in a position to show that the disclosure is likely to damage or has damaged the public interest. How far the Crown has to go in order to show this must depend on the circumstances of each case. In a question with a Crown servant himself, or others acting as his agents, the general public interest in the preservation of confidentiality, and in encouraging other...

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