Camelot Group Plc v Centaur Communications Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,Thorpe LJ,Mummery LJ |
| Judgment Date | 23 October 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1023-8 |
| Date | 23 October 1997 |
| Docket Number | QBENI 97/0962/E |
| Court | Court of Appeal (Civil Division) |
[1997] EWCA Civ J1023-8
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Langley)
Royal Courts of Justice
Strand
London WC2
Lord Justice Schiemann
Lord Justice Thorpe
Lord Justice Mummery
QBENI 97/0962/E
MR A NICOL QC and MR B EMERSON (Instructed by Messrs Davenport Lyons, London W1X 2NL) appeared on behalf of the Appellant
MR D PANNICK QC and MISS N ELLENBOGEN (Instructed by Messrs Baker McKenzie, London EC4 6JA) appeared on behalf of the Respondent
Thursday 23rd October, 1997
This appeal relates to an employer of an employee who has disclosed his employer's confidential information to a journalist. The employer obtained from Maurice Kay, J., an order which effectively requires the owners of the newspaper to whom the journalist had passed the information to disclose his source. The employers wanted to know the name of their disloyal employee. Maurice Kay, J., made the order sought by the employers but stayed it pending appeal. The appeal turns on the application of s.10 of the Contempt of Court Act 1981 which was passed in order that our domestic law might reflect Article 10 of the European Convention of Human Rights.
THE FACTS
The facts are uncontentious and are well set out in the judgment under appeal from which I gratefully take the following:—
"The plaintiff is authorised to run the National Lottery pursuant to a licence granted to it under the National Lottery Etc Act 1993. It has five shareholders four of which are quoted public companies. Its financial and accounting year ends on the 31st March. It intended to publish a preliminary financial statement on 3 June 1997. In preparation for that a draft preliminary financial statement was prepared. For the sake of convenience I shall refer to these sets of documents respectively as 'Final Accounts' and 'Draft Accounts'. Normally the media and the public would have known nothing of these documents until 3 June. However, an unknown person caused a copy of the Draft Accounts to be sent to a journalist employed by the defendant. The journalist is well known for articles about the National Lottery. He wrote an article which was published by the Defendant in Marketing Week in an issue dated 29 May 1997 but which seems to have been available on 28 May. It was a whole page article under the headline "Camelot chiefs' pay soars as good cause funds fall" and, in smaller lettering, "Camelot's leaked year end results, showing huge payouts for directors, will spark 'fat cats' storm". On 28 May 1997 the Plaintiff obtained an ex parte order from Langley J restraining the Defendant from using any confidential information of whatever nature and, in particular, the unaudited Draft Accounts for the year ending 31 March 1997; and further restraining the publishing, distributing or otherwise disseminating of any information relating to and/or obtained with the assistance of such confidential information and, in particular, in the aforesaid article. The order also required the Defendant to deliver up forthwith to the Plaintiff the Plaintiff's unaudited Draft Accounts and all copies made of such documents together with any other confidential information of which the Defendant was in possession or to which it had access. Later the same day there was an inter partes hearing in which the order was refined and the part of it dealing with delivery up was stayed pending further order. The stay was on terms requiring the Defendant to deliver up all relevant documents to its solicitors pending further order. The publication of the article in Marketing Week lead to considerable criticism of the Plaintiff and its directors. The Plaintiff hurriedly brought forward the date of publication of the Final Accounts with the effect that they were published six days before 3 June. It is well known that the matters disclosed by the article in Marketing Week, which soon spread to the rest of the media, incurred the wrath of the Government. Meetings were held between the Plaintiff's Directors and the responsible government minister. This all occurred amid a blaze of publicity which, so far as the Plaintiff was concerned, was unwelcome publicity resulting in an eventual agreement between the Plaintiff and the Minister whereby the Plaintiff agreed to give further sums to charity and good causes.
So far as the prohibitory injunction is concerned there is no remaining issue between the parties. The affidavit of Mr Stuart Smith, the Editor of Marketing Week, states:
"The defendant has no intention of using, publishing or otherwise disseminating any of the material included in the Draft Accounts now in the possession of its solicitors which does not appear in the Final Accounts nor to comment on any differences in the wording of the Draft Accounts and the Final Accounts."
And later:
"I confirm that the Defendant is content for the documentation in the possession of its solicitors to be destroyed and that such destruction be verified by affidavit."
Such destruction is not a solution which would satisfy the Plaintiff. The Plaintiff continues to seek the return of the documents in order to help it with the identification of the source of the leaked information. Mr Smith states in his affidavit:
"(The documents) do contain references, dates and notes which could easily lead to the identification of the source of the information."
An affidavit by Mr Peter Murphy, the Financial Director of the Plaintiff, states:
"The source has stolen documents which are the property of the Plaintiff. It is clear from the material to which the unidentified source had access that he or she must be operating at a high level within the organisation or has access to those who are working at that high level. An internal enquiry conducted by Neil Dickens, the Plaintiff's Director of Security, has established that the leak could only have come from a person working at the Plaintiff's offices or someone to whom such person had given the document. The internal enquiry has not been able to identify the person responsible."
That encapsulates the present dispute between the parties. The Plaintiff wants the return of the documents in order to assist it in the identification of the source. The Defendant seeks the destruction of the documents because it is anxious to protect the identity of the source."
Later in his judgment Maurice Kay, J., said:
"It is an irresistible inference that the source of the leaked information was either an employee of the plaintiff or someone with access to such an employee. In either case it is to be inferred that an employee has acted in breach of his or her contractual and/or fiduciary duties and that a copy of the Draft Accounts, was stolen. There is evidence that this is not the only occasion on which an insider has been party to the leaking of the plaintiff's confidential information. The very article in Marketing Week which precipitated this litigation referred to the present disclosures as 'an embarrassment' to the plaintiff 'which has been plagued by top level leaks over the past year'. It refers to specific instances including two in which Marketing Week itself published 'revelations'. And the Evening Standard for 28 May, exhibited to the affidavit of Mr Smith, also refers to the plaintiff as having been plagued by 'embarrassing leaks'. The affidavit of Mr Murphy states:
"The plaintiff believes that, unless identified and discussed 1, the unauthorised source of sensitive information will continue to damage the effective operation of the plaintiff's activities. There are two main concerns:
(1) No business can continue to operate effectively when it knows that it has, within its midst, a person at a high level (or with access to a high level of activities) who is leaking information. This inevitably damages the confidence and trust which those concerned with running the business have in each other. Until the culprit is identified and removed, suspicions will impede the effective management of the plaintiff. This is especially damaging when the plaintiff exists to conduct the National Lottery in an effective manner in the public interest. As a result of the leak to Marketing Week all those involved in the preparation of the Draft Accounts and all those who received a copy of the relevant documents (including secretarial staff) have been interviewed … by the plaintiff's security staff. In our opinion, the climate of suspicion has considerably damaged morale at the plaintiff's offices and will continue to do so until the culprit is caught, not least because a number of people feel themselves to be wrongly under suspicion …
(2) The plaintiff is very concerned about damage that the source may do in the future by disclosing information. The plaintiff is entrusted with a large amount of confidential information which it has a duty to protect and which newspapers are very anxious to obtain …: in particular the names and addresses of lottery winners who wish to remain anonymous. It is important that Camelot should be able to identify and remove the culprit to avoid the substantial risk of further disclosures in the future."
Mr Nicol says that the defendant does not accept these assertions and that I should not accept them. It is of course incumbent upon me to satisfy myself as to the credibility of any assertions made by a plaintiff on affidavit. However, the passages from the affidavit of Mr Murphy to which I have just referred seem to be both highly credible and virtually self-evident in the circumstances of this case. I am also satisfied that:
(1) The National Lottery is...
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