BBC v HarperCollins Publishers Ltd & others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MORGAN |
| Judgment Date | 04 October 2010 |
| Neutral Citation | [2010] EWHC 2424 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC10C02684 |
| Date | 04 October 2010 |
[2010] EWHC 2424 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Morgan
Case No: HC10C02684
Richard Spearman QC and Jonathan Barnes (instructed by Alexis Hawkes, BBC Litigation Department) for the Claimant
Hugh Tomlinson QC and Laura Prince (instructed by Davenport Lyons) for the First Defendant and (instructed by Clarke Willmott LLP) for the Second and Third Defendants
Hearing dates: 31 August and 1 September 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The case in outline
The BBC broadcasts a highly successful programme called "Top Gear". One of the regular features of that programme involves a character known as "The Stig". Mr Ben Collins has played the part of The Stig from around 2003 until the summer of 2010. It has been an important characteristic of The Stig that the identity of the person playing The Stig is not known to the public.
The BBC contended that Mr Collins owed certain duties to the BBC in relation to the identity of The Stig. In particular, it contended that Mr Collins owed a duty not to disclose confidential information, which included the identity of The Stig. In 2009, Mr Collins approached a publisher, the First Defendant, HarperCollins Limited, with a view to the publication of an intended autobiography by Mr Collins. Mr Collins has now completed the writing of his autobiography. At the time of the hearing before me, the publisher intended to publish this book in the near future so that it would be available for the 2010 Christmas market. Although the manuscript was not provided to the BBC, it was clear that Mr Collins' autobiography would make it explicitly clear that he has played the part of The Stig from 2003 up to the summer of 2010. The BBC contended that this publication would involve a serious breach of the duties Mr Collins owed to the BBC and that he should be restrained from committing such a breach. The BBC also claimed an injunction preventing the publisher from publishing the book. A claim was also made against a service company controlled by Mr Collins; the service company is the Third Defendant, Collins Autosport Limited.
Further, and in the alternative, to its case that the future publication of Mr Collins' book would be a breach of his duties to the BBC, the BBC also said that Mr Collins has already broken his duties by disclosing his identity to the publisher in 2009 and the court's reaction to that breach should include the grant of an injunction preventing him from benefiting from that breach and an appropriate injunction for this purpose would be one which prevented the Defendants publishing such a book in time for the 2010 Christmas market.
The procedural history
The Claim Form in this action was issued on 17 th August 2010. On the same day, the Claimant issued an application for various heads of relief. The principal relief which was sought was an injunction restraining the Defendants from disclosing certain information. The relevant information was set out in a confidential schedule to a draft order which was attached to the application notice. The Claimant also sought various ancillary procedural orders which were designed to prevent any part of the confidential information becoming public by reason of the existence of, or the pursuit of, these proceedings.
The parties filed a considerable body of evidence in support of their rival cases. Although the application notice was returnable on 23 rd August 2010, it was recognised that there would not be sufficient time on that day for the matter to be heard. Accordingly, arrangements were made for the application to be heard on 31 st August 2010, with a time estimate of one day. In the meantime, the Defendants gave certain undertakings to the Claimant which made it unnecessary for the Claimants to seek any relief from the court in relation to the period up to the effective disposal of the application.
The application came before me on 31 st August 2010. Mr Spearman QC and Mr Barnes appeared on behalf of the Claimant. Mr Tomlinson QC and Ms Prince appeared on behalf of the Defendants. At the beginning of the hearing, the Claimants applied to me under CPR 39.2(a) for a direction that the hearing should be in private. The Defendants submitted that the hearing should be in public but that I should make certain orders which would meet the Claimant's concerns that a hearing in public would lead to disclosure to the public of the information which was the subject of the injunction which was claimed. I directed that the hearing should be in private and I gave brief reasons for my decision. The hearing then took place, in private, on 31 st August 2010 and for part of the next day, 1 st September 2010.
At the conclusion of the argument on 1 st September 2010, I informed the parties that I was not prepared to grant any injunction in this case. I stated that I would, in due course, put in writing the reasons for my decision.
This judgment now contains the reasons for my decision not to grant an injunction in this case. These reasons are expressed as if given on 1 st September 2010. I am now informed by the parties that the book has since been published. I originally released a draft of this judgment before I was made aware of that fact and I have revised the draft so that my reasons are expressed as at 1 st September and without regard to the fact that the book has been published before this judgment is handed down. Although the hearing was in private, the parties have quite properly agreed that, in view of the publication of the book, this judgment could and should be given in open court.
Section 12 of the Human Rights Act 1998
The parties are agreed that Section 12 of the Human Rights Act 1998 applies to this case. Where section 12 applies, section 12(3) provides, in effect, that an injunction to restrain publication is not to be granted unless the court is satisfied that the applicant for the injunction is likely to establish at trial that publication should not be allowed.
The parties are also agreed that, following Cream Holdings Ltd v Banerjee [2005] 1 AC 253, the test which the court is to apply in normal circumstances is whether the applicant has satisfied the court that it would probably succeed at the trial of the claim. The parties are agreed that this is the test to be applied in the circumstances of this case. Accordingly, it is not sufficient in this case for the BBC merely to show that there is a serious issue to be tried although that is the relevant test in other cases of applications of interim injunctions: see American Cyanamid Co v Ethicon [1975] AC 396.
In setting out the facts on which I base my decision, I will refer to certain matters where there is no dispute but I will also need to refer to matters of fact which are in dispute. In the case of the latter, if they are material to the outcome, I will need to assess which version of the disputed facts is more likely to be accepted at any trial of this claim.
The facts
Top Gear is a well known and successful television programme which attracts a very large number of viewers. The original format of the programme was broadcast between 1977 and 2001. An updated format of the programme was launched in 2002 and a number of series using this new format have been broadcast from 2002 to the present time. The most recent series was series 15 which ended in August 2010. Series 15 was broadcast on BBC2, BBC3 and BBC HD and is available on BBC iPlayer. Each series is extensively licensed both in the secondary UK television market and to foreign broadcasters. The programme also has its own YouTube channel featuring clips from the programme.
The new format of the programme, launched in 2002, included a character called "The Stig". Since 2002, this character has always appeared in a racing driver suit and a helmet, with a dark visor which remains closed. The BBC's evidence on this application described The Stig as "a dramatic device used by the programme for entertainment and comedic effect". It is a key characteristic of The Stig that he is anonymous, that he does not speak and no clue is given as to his identity. In the period since 2002, the character appears to have become more important to the programme and more emphasis has been placed on his anonymity and on speculation as to who, or what, he or it might be and as to his or its nature and character, which speculation is, in the programme, left unresolved.
The Stig was originally played by Mr Perry McCarthy. He wore a black racing driver suit and black helmet and appeared in the first two series after the programme was relaunched in 2002. Mr McCarthy signed a confidentiality agreement in relation to his identity as The Stig. However, he disclosed this identity in an autobiography and this led to him no longer being asked to play the part of The Stig. On the dismissal of "The Black Stig", the BBC engaged a new driver to take the part of The Stig from series 3 onwards. This person has always appeared in a white racing driver suit and white helmet and has been called "The White Stig".
The Second Defendant, Mr Ben Collins, has regularly played the part of The Stig (or The White Stig) from series 3 to the most recent series, series 15. Occasionally, other drivers are used as The Stig.
The Third Defendant, Collins Autosport Limited ("the service company"), is a company controlled by Mr Collins. This company operates as a service company for Mr Collins and the contracts which were...
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