Fraser v Evans

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date03 Oct 1968
Judgment citation (vLex)[1968] EWCA Civ J1003-2

[1968] EWCA Civ J1003-2

In The Supreme Court of Judicature

Court of Appeal


The Master of the Rolls (Lord Denning)

Lord Justice Davies and

Lord Justice Widgery

In the Matter of the Supreme Court of Judicature Act 1925


In the Matter of an Intended Action

Maurice Fraser
Plaintiff Respondent
Harold Evans, Times Newspaper Limited and Thomson Newspapers Limited
Defendants Appellants

Mr. B.T. NEILL, Q.C., and Mr. B.L. POCOCK (instructed by Messrs Oswald Hickson, Collier & Co.) appeared on behalf of the Plaintiff, Respondent.

Mr. PETER BRISTOW, Q.C., and Mr. ANDREW BATESON (instructed by Messrs. Theodore Goddard & Co.) appeared on behalf of the Defendants, Appellants.


Mr. Maurice Fraser is a consultant in public relations. His firm was employed by the Government of Greece to make reports to them. The contract was in writing. It contained an express provision which imposed on his firm an obligation of confidence. The firm undertook that it would "never reveal to any person or organisation any information related to the work in the areas where it was operating or information which came to its knowledge during the course of the contract". But there was no corresponding undertaking by the Greek Government.


In mid-June of 1968, Mr. Fraser made a report for the Greek Government headed, "Fifth Report on the Public Relations Programme for Europe". It contained a description of the organisation which the firm had set up, the results of their work, and the plan which they had for the future. It was not marked "Confidential" or "Secret" or anything of that kind, Mr. Fraser wrote it in the English language, but it was sent out to Greece and translated by his firm's office there into the Greek language. Ten copies were made of the English report and the Greek translation. Nine of them were sent to high officers of the Government in Greece or Government Departments. The tenth was kept by Mr. Fraser and his firm.


Soon afterwards one of the Greek translations in Athens was obtained surreptitiously by some One or other–presumably from one or other of the officers of the Greek Government–and sent to England. The document came into the hands of a journalist, Mr. Bruce Page, employed by the Sunday Times. He got a translation made of it into English; he thought he would write an article about it for the Sunday Times. Before doing so, however, he sought an interview with Mr Fraser, who granted it. Mr. Fraser had himself been at one time engaged by the Sunday Times; so he knew that they were seeking information which might lead to an article.


On Thursday, the 19th of September, 1968, the interview was held, Mr. Page went with another journalist, Mr. Barry, also employed by the Sunday Times, to see Mr. Fraser and hisexecutive, Mr. Preece. There was a series of questions and answers. In the course of it Mr. Barry produced his English translation of the report. This was compared with Mr. Fraser's original report and some discrepancies were noted,-of course, that would be likely enough on a re-translation.


After the interview on the Thursday Mr. Fraser become concerned that the Sunday Times might publish an article on the subject in their issue of the following Sunday, the 22nd September. He was apprehensive of its contents. He thought it might be damaging to him. So on Saturday, the 21st September, he swore an affidavit. His Counsel went before Mr. Justice Shaw ex parte and obtained an injunction restraining the Sunday Times from publishing the article on the next day, the Sunday. On Wednesday, the 25th September, the matter came before Mr. Justice Crichton with both sides represented. He continued the injunction in a limited form. He restrained the Sunday Times from publishing the report or information from it. Now the Sunday Times appeals to this Court asking that they should be at liberty to publish the article and that no injunction be given against them.


The Sunday Times have told us quite frankly that the article will be defamatory of Mr. Fraser. They propose to print extracts from the report, to give some of the answers that he made at the interview, and to say what they think of them. In other words, to comment on what he has written and said. But they say that, although it will be defamatory of him, nevertheless if he should sue them for libel, their defence will be that the facts are true, that the comments which they make upon those facts will be fair comment made honestly on a matter of public interest. If the facts are not true, they say that Mr. Fraser cannot complain because they are only giving the facts as he told them.


One of the principal difficulties in dealing with this case is that we do not know what the article when published willcontain. We do not know what the extracts will be. We do not know what facts will be stated or what comments will be made. Despite this ignorance, we have to deal with the case as best we can. I will take the various points in order.


First, Libel, in so far as the artcile will be defamatory of Mr. Fraser, it is clear he cannot get an injunction. The Court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years ever since ( Bonnard v. Ferryman 1891 2 Ch. 269). 'The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a Judge. But a better reason is the importance in the public interest that the truth should out. As the Court said in that case: "The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment so long as no wrongful act is done". There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The Court will not prejudice the issue by granting an injunction in advance of publication.


Second, Breach of Confidence. Mr. Fraser says that the report was a confidential document and that the publication of it should be restrained on the principles enunciated in the cases from ( Prince Albert v. Strange 1 Macnaghten & Gordon 25; 41 English Reports 1170) to ( Duchess of Argyll v. Duke of Argyll 1967 1 Ch.302). These cases show that the Court will in a proper case restrain the publication of confidential information. The jurisdiction is based, not so much on property or on contract, but rather on the duty to be of good faith. No person is permitted to divulge to the world information which he has received in confidence, unless he has just cause or excuse for doing so, Even if he comes by it innocently, nevertheless once he gets tothat it was originally given in confidence, he can be restrained from breaking that confidence. But the party complaining must be the person who is entitled to the confidence and to have it respected. He must be a person to whom the duty of good faith is owed, It is at this point that I think Mr. Eraser's claim breaks down. There is no doubt that Mr. Fraser himself was under an obligation of confidence to the Greek Government. The contract says so in terms. But there is nothing in the contract which expressly puts the Greek Government under any obligation of confidence, Nor, so far as I can see, is there any implied obligation. The Greek Government entered into no contract with Mr. Fraser to keep it secret. We have seen affidavits–one of them as late as this morning–which say that it was not the policy of the Greek Government to publish, or allow the publication, of any documents prepared by Mr. Fraser or his firm, and that they would, as matter of practice, keep them confidential. But that policy still leaves them free, in point of law, to circulate the documents or their contents to anyone whom they pleased. The information was obtained for them by Mr. Fraser under a contract with them. They paid for it. They were the people entitled to the information. They were the people to say aye or no whether it should be communicated elsewhere, or be published generally. It follows, that they alone have any standing to complain if anyone obtains the information surreptitiously or proposes to publish it. And they did not complain of the publication now proposed. At any rate, they have not come to the Court to complain. On this short point it seems to me that Mr. Fraser himself cannot proceed on broach of confidence so as in his own behalf, to prevent the Sunday Times publishing the article.


Even if Mr. Fraser had any standing to complain, the Sunday Times say that in any event they have just cause or excuse for publishing. They rely on the line of authority from ( Gartside v. Outram (1857) 26 Law Journal Chancery (N.S.) 113) to the latest case ( Initial Services Ltd. v. Putterill 1968 1 Q.B.397).They quote the words of Vice-Chancellor Wood, that, "There is no confidence as to the disclosure of iniquity". I do not look upon the word "iniquity" as expressing a principle. It is merely an instance of just cause or excuse for breaking confidence. There are some things which may be required to by disclosed in the public interest, in which event no confidence can be prayed in aid to keep them secret, I feel it might be...

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