Campbell v Frisbee
| Jurisdiction | England & Wales |
| Judgment Date | 14 October 2002 |
| Neutral Citation | [2002] EWCA Civ 1374 |
| Docket Number | Case No: A3/2002/0678 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 October 2002 |
[2002] EWCA Civ 1374
Lord Phillips Master of the Rolls
Lord Justice Chadwick and
Lord Justice Keene
Case No: A3/2002/0678
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF J USTICE
CHANCERY DIVISION
The Hon Mr Justice Lightman
Deputy Master Lloyd
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr David Price and Mr Korieh Duodu (of David Price Solicitors and Advocates for the Appellant)
Ms Heather Rogers (instructed by Peter Carter-Ruck & Partners for the Respondent)
Lord Phillips MR :
Introduction
This is the judgment of the Court. On 4 June 2000 the News of the World published a salacious article about sexual encounters between the respondent, Miss Campbell, and the actor Mr Joseph Fiennes and the efforts made to keep secret the fact of these encounters – particularly from Mr Flavio Briatore, with whom Miss Campbell had established a stable relationship and to whom she was engaged to be married. Much of the information contained in this article had been provided to the News of the World by the appellant, Miss Frisbee. She had agreed to provide this information through the offices of an agent, Max Clifford. The News of the World paid Miss Frisbee £25,000 for the information and Max Clifford £5,000.
Miss Frisbee had been employed by Miss Campbell to provide management services under a weekly contract for services, agreed orally between Miss Frisbee and Miss Campbell's agent, Mr Michel. It was a term of that contract that Miss Frisbee would keep confidential any information that she learnt about Miss Campbell in the course of her work and that she would enter into a written confidentiality agreement. This she did, in the form of a letter dated 9 February 2000 –'the Confidentiality Agreement'. Under this Miss Frisbee gave a series of undertakings. She agreed, in particular, that (a) no information would be disseminated to the media without Miss Campbell's express written consent; (b) information relating to Miss Campbell's professional life and personal life had an inherent value in publication rights and that dissemination of such information in contravention of the agreement would pose a serious threat to Miss Campbell's professional, economic, commercial and personal interest; (c) the duties imposed on Miss Frisbee under the agreement were of a fiduciary nature; and (d) the Confidentiality Agreement would continue beyond the duration of the professional relationship between the parties.
It is common ground on the pleadings (a) that it was an implied term of the Confidentiality Agreement that Miss Frisbee would not divulge to the media or any third party any information (whether true or false) about Miss Campbell which Miss Frisbee claimed to have learnt in the course of working for Miss Campbell and (b) that, by reason of the relationship between them, Miss Frisbee owed Miss Campbell a duty of confidence.
The disclosures made by Miss Frisbee to the News of the World were, on the face of it, in flagrant breach of the Confidentiality Agreement and the duty of confidence arising out of the relationship between Miss Campbell and Miss Frisbee.
By this action Miss Campbell claims damages or an account of profits arising from breach of the Confidentiality Agreement and the duty of confidence. By way of defence, Miss Frisbee claims that Miss Campbell so conducted herself as to discharge her from the duty not to disclose the information that she provided to the News of the World. She claims that on 7 April 2000 Miss Campbell physically assaulted her because she had failed sufficiently to cover up the fact that Miss Campbell was deceiving Mr Briatore with Mr Fiennes. Miss Frisbee claims that this assault was the culmination of a course of unacceptable behaviour on the part of Miss Campbell, that it constituted a repudiation of her contract which she accepted and that this brought their relationship to an end. She claims that the termination of her contract in these circumstances also discharged the Confidentiality Agreement and released her from the obligation to keep confidential the details of Miss Campbell's relationship with Mr Fiennes.
By way of alternative defence Miss Frisbee contends that, if any duty of confidentiality subsisted, she was nonetheless entitled to disclose the information that she gave to the News of the World because it was in the public interest that this information should be published. Miss Frisbee seeks to add, by way of amendment to her Defence, further allegations of fact in support of this alternative defence.
Miss Frisbee counterclaims for damages in respect of the alleged assault upon her by Miss Campbell.
The article in the News of the World included a description of the alleged assault on Miss Frisbee. Miss Campbell denies that the assault took place and claims that the false description of the assault also constituted a breach of the Confidentiality Agreement.
On 2 August 2001 Miss Campbell obtained summary judgment against Miss Frisbee in respect of part of her claim. The judgment was given by Deputy Master Lloyd and was in relation to that part of Miss Campbell's claim which related to the disclosure of details of her relationship with Mr Fiennes. Deputy Master Lloyd refused to give summary judgment in relation to the disclosure of the information which formed the basis of that part of the article which described Miss Campbell's assault on Miss Frisbee. This was on the basis that it was arguable that there was a public interest in disclosure of the fact that Miss Campbell had committed a criminal offence, which justified what would otherwise have constituted a breach of confidence. The Deputy Master ordered that the remainder of the claim and the counter-claim should proceed to trial.
Miss Frisbee appealed to Lightman J. against the Order for summary judgment made against her. By a judgment handed down on 14 March 2002 Lightman J. dismissed her appeal. Against his decision Miss Frisbee now appeals, pursuant to permission granted on paper application by Brooke LJ., who remarked simply that the proposed appeal appeared to meet the criterion required for a second appeal.
The basis of the appeal
CPR Part 24.2 provides:
"The court may give summary judgment against a defendant on the whole of a claim or on a particular issue if—
(a) it considers that—
…. (ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at trial."
Lightman J. correctly proceeded on the basis that, on an application for summary judgment, any arguable issues of fact should be assumed to be determined in favour of the defendant. On this basis he assumed that Miss Frisbee's allegation that Miss Campbell had physically assaulted her, and the alleged reason for that assault, were established.
Lightman J. identified two issues of law on which he ruled that Miss Frisbee had no realistic prospect of success. The first was whether the obligation of confidence that she owed to Miss Campbell was discharged by Miss Campbell's wrongful repudiation of Miss Frisbee's contract. The second was whether there was a public interest in the disclosure of the information made by Miss Frisbee to the News of the World.
Mr Price, who appeared for Miss Frisbee, contended that Lightman J. was wrong to hold that Miss Frisbee did not have an arguable case on either issue. He submitted that Lightman J.'s finding on the first issue involved a departure from previous established law. It was not appropriate to determine an issue in such a manner on an application for summary judgment. He had come to argue that Lightman J. should have held that Miss Frisbee had a reasonable prospect of success on this issue. This was all that he should be required to do to succeed. It was not right that at the interlocutory stage he should be expected to answer a head-on attack on established law.
As to the second issue, Mr Price submitted that it was wrong to treat this simply as an issue of law. The test of public policy was fact specific and Lightman J. had failed to consider the argument advanced on behalf of Miss Frisbee as to the relevance of the material facts.
For Miss Campbell, Ms Rogers submitted that, even were we to conclude that the first issue involved a difficult question of law, we should determine whether or not Lightman J. had correctly resolved that issue. If he were held to have been correct, this might obviate the need for an investigation into the question of whether or not Miss Campbell had repudiated Miss Frisbee's contract.
The effect of repudiation on a contractual duty of confidence
Mr Price submitted that it is a basic principle of the law of contract that an accepted repudiation brings to an end any contractual obligations on the part of the innocent party, including negative covenants such as a covenant not to disclose confidential information. In support of this proposition he relied upon two authorities. The first was the decision of the House of Lords in General Billposting Company Limited v Atkinson [1909] AC 118. Atkinson was employed by General Billposting on terms that included a covenant, in effect, not to compete with them for two years after the termination of his employment with them. They wrongfully dismissed him without notice, but sought to enforce the covenant. The House of Lords held that he was not bound by the covenant. The speeches were very short, but the following passage from that of Lord Collins contains what is generally considered to constitute the reasoning behind...
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