Attorney General v Newspaper Publishing Plc

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE LLOYD,LORD JUSTICE BALCOMBE
Judgment Date17 July 1987
Judgment citation (vLex)[1987] EWCA Civ J0717-2
Date17 July 1987
Docket Number87/0753

[1987] EWCA Civ J0717-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Before:

The Master of the Rolls

(Sir John Donaldson)

Lord Justice Lloyd

Lord Justice Balcombe

87/0753

Her Majesty's Attorney General
and
(1) Newspaper Publishing Plc
(2) Andreas Whittam Smith
(3) Evening Standard Company Limited
(4) John Leese
(5) The London Daily News Limited
(6) Magnus Linelater

MR J. G. M. LAWS and MR P. N. HAVERS, instructed by The Treasury Solicitor, appeared for the Appellant (Applicant).

MR C. S. C. S. CLARKE, Q.C., and MISS A. M. PAGE, instructed by Messrs Oswald Hickson Collier & Co., appeared for the First and Second Respondents (First and Second Respondents).

MR J. C. MATHEW, Q.C., and MR J. M. CAPLAN, instructed by Messrs D. J. freeman & Co., appeared for the Third and Fourth Respondents (Third and Fourth Respondents).

MR C. A. S. J. GBAT, Q.C, and MR D. P. PAMICK, instructed by Messrs Victor Mishcon & Co., appeared for the Fifth and Sixth Respondents (Fifth and Sixth Respondents).

THE MASTER OF THE ROLLS
1

In this appeal the Attorney General seeks to reverse the answer given by the Vice-Chancellor to a preliminary question of law formulated in contempt proceedings brought by him against the defendants. I can well understand the attraction of formulating such a preliminary point, but, as so often happens, it can seem less obviously sensible at a later stage in the proceedings. Thus, in the present case, I personally do not think that the question as framed permits of any answer other than "It all depends", which is not very helpful. However, all concerned know that the real issue is whether in the circumstances of this case, which are not substantially in dispute, the defendants could be guilty of contempt of court and the question can, if necessary, be. re-phrased to raise that issue (see Ismail v Polish Ocean Lines (1976) 1 Q.B. 893).

2

The circumstances being all important, I must now advert to the background facts, although they are well known to all.

3

Mr Wright, who lives in Tasmania, was for many years a servant of the Crown and a member of the British Security Service. He retired on 31st January 1976. Rightly or wrongly he concluded that the activities of the Service whilst he was a member had been unlawful and that this should be investigated and exposed. He therefore submitted a memorandum to the Chairman of a Select Committee of the House of Commons. The result was, in his view, unsatisfactory and he decided to write and publish his memoirs in Australia. This came to the notice of the authorities in this country and in September 1985 the Attorney General began proceedings in the Supreme Court of New South Wales against Mr Wright and the proposed publishers, seeking to restrain publication.

4

So much has been said about State secrets that I must stress that the basis of the Attorney General's claim to he entitled to restrain publication was not that Mr Wright might he in breach of the Official Secrets Act. It was that by the terms of his employment with the Security Service he had a duty of confidentiality which would be breached if he published his memoirs. Confidentiality, not official secrecy, was and still is the central issue.

5

Now it is a fact of life that a major legal action takes time to prepare and justice cannot be done if it is ill-prepared. Meanwhile the court does not know which party is right and it must therefore try to preserve the rights of both parties until the trial. This is plain common sense and basic justice. How this is done depends very much on the nature of the rights being asserted, the ability of each party to compensate the other if it is held to be in the wrong and the background circumstances of the case. Sometimes the court can allow the defendant, pending the trial, to continue with the action which is said to be unlawful, because it is satisfied that if indeed it is ultimately so held, the complainant, who has had to put up with the continuance of the unlawful action, can be compensated by an award of damages. In others it will decide that the rights of both parties are better preserved by forbidding the continuance of the allegedly unlawful action because, for example, if the action is ultimately held to have been lawful and the defendant has suffered damage by the suspension of his rights pending the trial, the complainant can be made to compensate him by an award of damages. This is not to say that a citizen can dash along to the court and get an order limiting the defendant's freedom of action simply on the basis of his, possibly paranoid, assertion that he will succeed at the trial. Far from it. The courts, whilst carefully refraining from reaching even a tentative conclusion on who is right, still have to make certain that the complainant citizen has a case which is sufficiently plausible to he taken seriously.

6

In a word, if there is a genuine dispute which cannot be resolved at once, the court must hold the ring until this can be done. In that waiting period when each party is preparing for the trial, it must give each side the benefit of any doubts, it must assume that either party may win and it must seek to preserve the rights of both parties. In other words, it must undertake a damage limitation exercise for the benefit of whomsoever it may ultimately concern.

7

It is at this point that a special consideration arises when the dispute concerns information which is said to be confidential. If the parties are arguing about the ownership of a horse or a car, it may not matter who keeps the horse or car pending the trial. If, as things turn out, the court has given it to the wrong party, it can get it back and give it to the right party after the trial, together with damages to compensate for having been deprived of the horse or car for the time being. Not so with confidential information where, as here, one party says that it is his private property and the other says that he is entitled to publish it to the world. If, pending the trial, the court prohibits publication, the information can still be published after the trial if the defendant succeeds. But if, pending the trial, the court allows publication, there is no point in having a trial since the cloak of confidentiality can never be restored. Confidential information is like an ice cube. Give it to the party who undertakes to keep it in his refrigerator and you still have an ice cube by the time the matter comes to trial. Either party may then succeed in obtaining possession of the cube. Give it to the party who has no refrigerator or will not agree to keep it in one, and by the time of the trial you just have a pool of water which neither party wants. It is the inherently perishable nature of confidential information which gives rise to unique problems.

8

All this is totally elementary. So elementary is it that Mr Wright and his Australian publishers readily undertook to the Australian courts that, pending the trial of the action, neither they nor anyone acting on their behalf would publish Mr Wright's memoirs. Metaphorically they would be kept in the refrigerator. Had they not given this undertaking, I do not doubt that the Australian court would have ordered them to refrain from publication.

9

Some time during the next nine months, the Observer and Guardian newspapers obtained some knowledge of the contents of Mr Wright's memoirs. Rightly or wrongly they came to the conclusion that even if this was confidential information which belonged to the Security Service, the allegations being made by Mr Wright were so serious and so plausible that the public interest required that every citizen should know about them. The newspapers may or may not have been right, but the English courts became involved when the Attorney General began an action to prevent them publishing information derived from or attributed to Mr Wright in his memoirs. This is, of course, a paraphrase of the relief which was sought, but it suffices for present purposes.

10

What were the courts to do? They did not know whether the Attorney General was right or whether the newspapers were right. What they did know was that there was a very serious issue to be tried and that if they forbade publication pending the trial there would still be confidential information which could be published after the trial, but that if they did not forbid publication there would no longer be any confidential information and it would be pointless even to have a trial. It was the ice cube problem once again. So the courts forbade publication pending the trial.

11

Unlike Mr Wright and the Australian publishers, the Guardian and Observer did not accept the logic of this approach and resisted the Attorney General's applications both in the High Court and in the Court of Appeal. This was their right and I make no complaint. They also sought and obtained leave to appeal to the House of lords. Again this was their right and again I make no complaint, although I do not understand why, having obtained leave to appeal to the House of Lords, they do not appear to have taken any very vigorous steps to have that appeal heard. But what is interesting, and highly relevant, is that in this court, and possibly also in the High Court, the newspapers complained that it was unjust that they should be singled out for an order forbidding further publication of what they had already published, when their competitors in and around Fleet Street were not being subjected to any such order. This, they said, was grossly unfair. It was a fair point.

12

The Attorney General's answer was twofold. First, he said, no other newspaper had shown any inclination to...

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