Francome v Mirror Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE FOX,LORD JUSTICE STEPHEN BROWN |
| Judgment Date | 16 March 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0316-3 |
| Docket Number | 84/0595 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 1984 |
[1984] EWCA Civ J0316-3
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Fox
and
Lord Justice Stephen Brown
84/0595
1984 F. No. 393
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE PARK)
Royal Courts of Justice.
MR. RICHARD HARTLEY, Q.C. and MR. T. SHIELDS (instructed by Messrs. McCloy Day-Wilson & Co. of Newbury) appeared on behalf of the (Plaintiffs) Respondents.
MR. LEONARD HOFFMANN, Q.C. and MR. A. CALDECOTT (instructed by Messrs. Nicholson Graham & Jones) appeared on behalf of the (Defendants) Appellants.
The plaintiffs are husband and wife, the husband being the champion National Hunt jockey. The defendants are the proprietors of the Daily Mirror, its editor and two of its reporters.
Someone—and we do not know his identity or that of his assistants—saw fit to plant what is popularly known as a "bug" with a view to eavesdropping on any telephone conversations which were made to or from the plaintiffs' home. This was not official telephone tapping. Indeed it may not have been tapping in the strict sense at all, since it is common ground that it involved the use of radio-telephony. It also had nothing to do with the Daily Mirror. It is not clear for how long the "bug" was in operation, but it was for not less than three months and may have been longer.
The Daily Mirror came into the story when the eavesdroppers offered to sell them 38 tapes of telephone conversations obtained by this means. In seeking to confirm the authenticity of the tapes, the reporter defendants approached Mr. Francome and told him of their existence.
The plaintiffs then began an action in which they claimed the following relief:
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(1) Exemplary damages for breach of confidence;
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(2) Exemplary damages for trespass;
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(3) An injunction restraining all the defendants from publishing or causing to be published any article which was based on or made use of the plaintiffs' telephone conversations;
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(4) An order for the delivery up of the tapes and transcripts from the tapes and notes of the conversations.
Later the plaintiffs asked that the defendants should be ordered to identify their source, i.e. the person or persons who offered to sell them the tapes.
Mr. Justice Park on the 8th March made various orders. For present purposes it suffices to say that he:
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(a) ordered a speedy trial;
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(b) granted the injunction which had been sought;
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(c) ordered the defendants to deliver the tapes, transcripts and any notes of telephone conversations to a third party;
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(d) ordered the defendants to reveal their source within 24 hours.
The defendants now appeal.
It is of paramount importance that everyone should understand the exercise upon which the learned judge was, and we are, engaged. There is to be a speedy trial at which the rights of the parties will be determined. That has not yet happened. We are concerned, so far as we can, to preserve the rights of the parties meanwhile. It is not our function to decide questions of fact or law which will be in issue at the trial. If they are arguable, that is the time and the place when they should be argued.
Let it be said at once that no one seeks to defend the action of those who "bugged" the plaintiffs' telephone. This conduct was quite clearly a criminal offence under section 5 of the Wireless Telegraphy Act 1949, and may also have involved a trespass to the plaintiffs' property. This is not likely to be the issue at the trial. That issue is likely to be whether the defendants can make any, and if so what, use of the fruits of that criminal act.
The plaintiffs say that the defendants cannot be allowed to make any use of the tapes or of the conversations which they record. There is a two-fold basis for this contention. The first is that both the eavesdroppers and the defendants know full well that the conversations were confidential. Although users of the telephone take the risk of crossed lines and of official telephone tapping, they are entitled to regard their conversations as confidential and anyone overhearing those conversations knows that that is the position. It is therefore idle for an eavesdropper, and particularly a deliberate eavesdropper, to contend that he did not know that the conversations were confidential. The plaintiffs say that in the circumstances revealed by the evidence, the defendants were in the same position as the eavesdroppers. Both were under a duty to preserve the confidentiality of the plaintiffs' private conversations.
The second basis for this contention is that, as the defendants well knew, the tapes and transcripts came into existence by means of acts which constituted criminal offences under the Wireless Telegraphy Act 1949 and, as the plaintiffs say, disclosure of inter alia the contents of the messages contained in those conversations would also constitute such an offence.
The claim for an order requiring the defendants to identify their source was not included in the writ, but arose in the course of the proceedings before Mr. Justice Park. It is based upon the decision of the House of Lords in British Steel Corporation v. Granada Television Ltd. (1981) Appeal Cases 1096 and, whilst being advanced on behalf of both plaintiffs, is pressed particularly on behalf of Mrs. Francome.
The defendants accept that the plaintiffs may have various causes of action against the eavesdroppers, but rightly say that this is not directly relevant. They go on to say that the plaintiffs have no right of action against them. So far as trespass is concerned, they were not parties to it. This may well be right. They go on to say that there is no cause of action against them or the eavesdroppers for breach of an obligation of confidentiality. The authority for this rather surprising proposition is said to be Malone v. Metropolitan Police Commissioner (1979) Chancery 344. Suffice it to say that the learned Vice-Chancellor expressly stated at page 384 of the report that he was deciding nothing on the position when tapping was effected for purposes other than the prevention, detection and discovery of crime and criminals or by persons other than the police. This is thus a live issue.
The defendants then go on to submit that whatever their obligations towards the plaintiffs upon grounds of confidentiality, they can rely upon the classic, but ill-defined, exception of what is quaintly called "iniquity". The basis of this exception is that whilst there is a public interest in maintaining confidentiality, there is a countervailing public interest in exposing conduct which involves a breach of the law or which is "anti-social". I use the term "anti-social", without defining it, to describe activities which, whilst not in breach of the law, are seriously contrary to the public interest. In the defendants' submission the tapes revealed breaches by Mr. Francome of the rules of racing and, bearing in mind the large sums of money which are staked on the results of the races, this conduct they say is "anti-social" within the meaning of the iniquity rule and may also involve criminal offences. Let me say at once that it is not for me to say whether the tapes bear this interpretation and I express no view on that point. That will also be an issue.
The defendants go on to say that they have no intention of writing or publishing anything which is defamatory of Mrs. Francome or of publishing any part of the tapes which relate to conversations to which she was a party. However, so far as Mr. Francome is concerned, they say that they are prepared to justify anything which they may write and publish about him and that in those circumstances it would be contrary to all precedent for them to be forbidden to write and publish matter which, in the absence of justification, might be held to be defamatory. They submit that they should not be restrained from publishing the transcripts of the tapes and extracts therefrom or a summary by way of justifying any comments which, in the absence of such justification, might constitute an actionable libel.
This leaves two matters—the plaintiffs' reliance upon section 5 of the Wireless Telegraphy Act 1949 and the claim that the defendants should reveal their source.
The Wireless Telegraphy Act
Section 5 is in the following terms:
"Any person who—
(a)…
(b) otherwise than under the authority of the Postmaster General or in the course of his duty as a servant of the Crown, either—
(i) uses any wireless telegraphy apparatus with intent to obtain information as to the contents, sender or addressee of any message (whether sent by means of wireless telegraphy or not) which neither the person using the apparatus nor any person on whose behalf he is acting is authorised by the Postmaster General to receive; or
(ii) except in the course of legal proceedings or for the purpose of any report thereof, discloses any information as to the contents, sender or addressee of any such message, being information which would not have come to his knowledge but for the use of wireless telegraphy apparatus by him or by another person, shall be guilty of an offence under this Act."
Section 14 is headed "Penalties and Legal Proceedings". It prescribes penalties for offences, including offences under section 5, and continues in subsection (7) as follows:
"Nothing in the preceding provisions of this section shall limit any right of any person to bring civil proceedings in respect of the doing...
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