Jockey Club v Buffham

Hearing dates: 06 and 09 September 2002

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 Hon. Mr Justice Gray

INTRODUCTION

The parties in the action before me are the Jockey Club and Mr Buffham ("the Buffham Action"). But the protagonists on this application are the BBC and the Jockey Club. This somewhat unusual state of affairs arises because the BBC seek variation of an order made by me in the Buffham Action on 31 May 2002.

Before coming to the issues with which I am concerned in the present application, I should give a brief account of the history of the Buffham Action.

THE BUFFHAM ACTION

Mr Buffham was until 26 September 2001 the Head of Security at the Jockey Club, whose functions include supervising the conduct of horseracing in this country, the licensing of jockeys, trainers and other participants, and ensuring so far as it is able the integrity of racing. The role of the Security Department is principally to protect the integrity of horseracing in Great Britain. Most of its officers were formerly in the Police and are mainly engaged in gathering intelligence and investigating possible breaches of the Rules of Racing or any other criminal offence affecting horseracing. The Department relies upon a number of informants as well as on co-operation on a regular basis with the Police and HM Customs and Excise. As Head of Security Mr Buffham's role was to manage the activities of the Security Department in the gathering of information and intelligence to deter malpractice and to conduct investigations and enquiries as appropriate.

The terms on which Mr Buffham and the Jockey Club parted company are contained in a letter from the Jockey Club to Mr Buffham dated 19 September 2001 and countersigned by him. So far as material the terms were as follows: his employment was to terminate on 15 August 2001; he received a payment of £50,000 by way of compensation for the termination of his employment and he entered into the following covenants:

"10. You shall not except as may be required by Law divulge to any person whatsoever or otherwise make use of (and shall use your best endeavours to prevent publication of) any trade secret or any confidential information concerning the business or finances of the Jockey Club or any of its dealings, transactions or affairs or any such confidential information concerning any investigations carried out by the Security Department during your employment with the Jockey Club except in so far as any trade secret or confidential information may have come into the public domain (otherwise than as a result of any breach of any obligation made by you to the Jockey Club)."

Mr Buffham agreed immediately to return to the Jockey Club all documents and other property relating to the business of the Jockey Club. The agreement was expressed to be in full and final settlement of all claims and rights of action.

It subsequently transpired that Mr Buffham did not, as he had agreed to do, return to the Jockey Club all its documents. It is now accepted by him that he retained a substantial number of Jockey Club documents dealing with a variety of topics mostly in the racing world. Mr Buffham had also communicated with journalists in relation to Jockey Club matters and disclosed to them information relating to the activities of the Securities Department. It is Mr Buffham's assertion that he was motivated by concern at the scale of corruption within racing and the limited extent to which the problem was being addressed.

The Jockey Club became concerned when it became clear that Mr Buffham had been passing on what they considered to be detailed and sensitive information to the media. A particular concern was the risk that the identity of confidential Jockey Club sources would be revealed. Accordingly proceedings were commenced by the Jockey Club against Mr Buffham to enforce the negative covenant which I have quoted earlier.

THE FINAL ORDER

Those proceedings were ultimately compromised. By consent an order was made by me on 31 May in the following terms:

"1. The defendant must not without the Claimant's prior written consent do any of the following acts … namely divulging to any person whatsoever or otherwise making use of any trade secret or any confidential information concerning the business or finances of the Jockey Club or any of its dealings, transactions or affairs or any such confidential information concerning any investigations carried out by the Security Department during his employment with the Jockey Club."

There were a number of exceptions but none of them is material. The Order obliged the defendant to serve a witness statement setting out in full any disclosure he had made since 26 September 2001 of information falling within Clause 1 quoted above. Paragraph 4 of the order provided:

"For the avoidance of doubt, any person other than the defendant who is served with or given notice of this judgment may apply to the Court to vary or discharge the injunction set out at 1 above."

The order was agreed to represent a full and final settlement of the proceedings.

A copy of that Order was, perfectly properly, served on the BBC. The reason why the Jockey Club took that course was that it had come to their knowledge that one of the journalists with whom Mr Buffham had been communicating was Mr Stephen Scott, who since August 2001 had been employed by the BBC as a producer on its Panorama current affairs programme.

NARRATIVE

In his witness statement in support of the present application Mr Scott gives an account of his dealings with Mr Buffham which can be summarised as follows: they first met in 1996 and kept in touch thereafter. Mr Buffham told Mr Scott that he was astonished by the extent of the corruption he had discovered in the horseracing industry and that he was surprised at the lack of enthusiasm on the part of the Jockey Club in tackling it. Mr Buffham told Mr Scott about forthcoming criminal trials which would call into question the integrity of horseracing.

Soon after joining Panorama in August 2001 Mr Scott raised the possibility of a programme about the horseracing industry with his Editor. Mr Scott made a number of enquiries. On 17 October 2001 he met Mr Buffham to discuss the proposed programme. Mr Buffham told him that he had retained several files of documents relating to his work for the Jockey Club which he claimed supported charges of corruption within racing and the failure of the Jockey Club to respond adequately. Mr Buffham indicated a willingness to assist in the making of a television programme.

The two of them met again in early November 2001, when Mr Scott said that he needed to look at the documents in the possession of Mr Buffham to confirm that they supported the points he was making. Mr Buffham agreed. Mr Scott conducted a detailed review of many, if not all, of the documents retained by Mr Buffham. Mr Buffham did, however, insist that nothing should be done in the course of making the programme that could endanger any confidential informant of the Jockey Club. Mr Scott states that he readily agreed.

In due course Mr Buffham was retained as a paid consultant to the programme on terms set out in a letter from the BBC dated 18 February 2002. Shortly afterwards Mr Buffham again permitted Mr Scott to have access to his files.

THE INTENDED PANORAMA PROGRAMME

The programme having been formally commissioned by the BBC, the intention is to transmit it at the end of September 2002. Mr Scott asserts that he and other members of the Panorama team have received information from a variety of sources which supports Mr Buffham's claims. The programme is now in an advanced, albeit not final, form. According to Mr Scott, its general point will be to bring to the attention of the public a number of scandals and instances of the corruption endemic in British horseracing during the last decade and to ask why the Jockey Club, the regulatory body of the sport, has allowed them to occur or has responded inadequately to them. He identifies a number of connected strands of which the programme will consist.

The BBC wishes to make use for the purposes of the programme of a number of the documents which came into Mr Buffham's possession in the course of his employment by the Jockey Club. In some instances the Jockey Club is prepared to give its consent. But in relation to other documents, conveniently identified in a letter from the BBC dated 23 August 2002 and a schedule annexed to that letter, the Jockey Club is unwilling to agree to the use of all of them. The present dispute relates to the remainder.

The Jockey Club rely its opposition to the application of the BBC on lengthy witness statements from its executive director, Mr Christopher Foster, and Mr Jeremy Phipps, the current Director of Security.

CONTENTIONS FOR THE JOCKEY CLUB

Mr Foster makes the forensic points that, when he agreed to settle the proceedings brought against him by the Jockey Club, Mr Buffham abandoned the...