Lion Laboratories Ltd v Evans
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE O'CONNOR,LORD JUSTICE GRIFFITHS |
| Judgment Date | 26 March 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0326-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0132 |
| Date | 26 March 1984 |
and
and
and
[1984] EWCA Civ J0326-2
Lord Justice Stephenson
Lord Justice O'Connor
and
Lord Justice Griffiths
84/0132
1984 L No. 396
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
(MR. JUSTICE LEONARD)
Royal Courts of Justice
MR. ROBERT ALEXANDER QC and MR. GEOFFREY SHAW (instructed by Messrs. Lovell White & King, Solicitors, London EC1A 2DY) appeared on behalf of the Third and Fourth Defendants (Appellants)
MR. ANTHONY HOOLAHAN QC and MR. HARRY M. BOGGIS-ROLFE (instructed by Messrs. Phillips & Buck, Solicitors, Cardiff CF1 1QQ) appeared on behalf of the Plaintiffs (Respondents)
MR. MICHAEL BLOCH (instructed by Messrs. John Bell & Co, Solicitors, Cardiff CF2 3AB) appeared on behalf of the First and Second Defendants (Appellants)
There are before the court appeals by four defendants from an injunction which Mr. Justice Leonard granted ex parte on 8th March and refused to discharge on 14th March. The four defendants are: First and second, two former employees of the plaintiff company and, third and fourth, the editor and publishers of the Daily Express. The plaintiff company is a company incorporated in this country who, under licence from a United States corporation, manufacture and market an electronic computerised instrument known as the Lion Intoximeter 3000. They sell these Intoximeters to overseas customers, but sixty per cent of their sales are in this country, for use by the police for measuring intoxication by alcohol, as the name implies. On 18th April 1983 the Home Office approved these Intoximeters for that use, and since May 1983 about 700 of them have been in use, mainly as one of the two approved devices for testing the breath of drivers of motor vehicles suspected of driving with an alcoholic concentration above the limit prescribed by paragraph 12 of the Eighth Schedule to the Transport Act 1981. The Intoximeters were in particularly extensive use at Christmas time last year.
On 10th January of this year the second defendant, Smith, left the plaintiffs' employment, followed on 13th February by the first defendant, Evans. Both men were technicians who had worked on the Intoximeter. On 2nd March the plaintiffs were informed by an informant that two ex-employees were trying to contact Fleet Street with copies of the plaintiffs' internal correspondence. On 7th March Mr. Rees, a reporter employed by the fourth defendants, called on Dr. King, who had been the plaintiffs' senior research chemist and head of the Calibration Laboratory until he left that post in December of 1983, with internal memoranda of the plaintiffs. He also called on Dr. Williams who was, and still is, the plaintiffs' marketing director, with four internal documents, with which this case is principally concerned. Two of those four documents were marked, in one description or another, confidential and all are conceded to have been confidential. Mr. Rees's object in calling upon Dr. King and Dr. Williams was to authenticate the documents, and there is no dispute as to their authenticity. On 8th March the plaintiffs issued a writ claiming an injunction and damages for breach of confidence and/or breach of copyright. On that day Mr. Justice Leonard granted the third and fourth defendants an injunction ex parte, with leave to issue a summons returnable on 15th March. At that stage nothing confidential had been published.
I read the terms of the order made by the learned judge on 8th March, to be found on p.14 of our bundle.
"(A) Until 15th day of March, 1984 or further order the defendants and each of them be restrained from:-
(1) disclosing or making use of any confidential information being the property of the plaintiff for any purpose whatsoever
(2) infringing the plaintiff's copyright in their internal or other documents
(B) The defendants and each of them should within 14 days deliver up all documents or copies thereof containing such confidential information or being the subject of such copyright in the defendants' possession, power or control
(C) The defendants and each of them should within 14 days disclose the identity of the supplier of any such confidential information or supplier of any such documents
(D) That the First and Second defendants should within 5 days disclose list verified by affidavit all persons to whom they have supplied any such documents or confidential information".
On 9th March, the next day, the Daily Express published a censored article. It was headed "Exposed: The Great 'Breath Test' Scandal", and it read:
"The Intoximeter 3000, the controversial breathtest machine which has convicted thousands of motorists has an unacceptably high failure rate. This is the conclusion reached after a Daily Express investigation into defects which have plagued the machine.
"The investigation has revealed that the Intoximeter is so prone to error that many of the drunk driving cases 'proved' by the machine must now be suspect. Our inquiries show that:-
"The Intoximeter gave a disturbing percentage of faulty performances during Home Office proving tests.
"It continued to behave erratically after being approved as an 'evidential' instrument which began convicting drivers in May last year.
"The Home Office conducted its biggest ever blitz on drinking drivers over Christmas and New Year—at a time when it knew there was a problem with the 3000.
"Angry solicitors are currently challenging 500 cases where they fear that the Intoximeter is in danger of creating miscarriages of justice.
"An eminent scientist claims that the 3000 appears to be subject to faulty design and should never have been introduced as an evidential instrument.
"There is a distressing history of the 3000 going wrong inside police stations.
"A calibration expert, employed to ensure the accuracy of the Intoximeter, left Lion Laboratories because he was unhappy with the situation over the Intoximeter. He told the Daily Express: 'It is no secret that the machine presents serious problems in calibration.'
"There is evidence that the machine can be affected by weather conditions, lightning, power supply surges, cigarette smoke and the chemical used for fingerprinting in police stations.
"Professor Vincent Marks, Professor of Chemical Bio-Chemistry at Surrey University, said: 'The assumption made in current legislation that machines cannot lie and are foolproof is unmitigated nonsense;'.
"He is an expert witness on cases involving the Lion Intoximeter".
There were further pages of that issue of the Daily Express on which appear blanks, covered by the legend
"BREATH TEST SCANDAL"
"Further information on the Intoximeter was scheduled for this space. It has been withheld because of a High Court order obtained by the manufacturer. This order will be contested".
On 12th and 13th March the learned judge heard counsel in support of the third and fourth defendants' application to discharge that injunction and he prepared his judgment to be delivered on the next day. On the next day, 14th March, Mr. Bloch of counsel appeared for the first and second defendants, who entered the lists for the first time, through no fault of their own or, I assume, of anybody else. The learned judge, after hearing Mr. Bloch and Mr. Shaw, counsel for the third and fourth defendants, delivered the judgment which he had prepared in circumstances which he explained in giving judgment. He said:
"Mr. Bloch was content with an arrangement by which his two Defendants would agree to be treated as being Parties to the Hearing which concluded last night, without their making any submissions or placing any evidence before me. They would then be in a position where they would have a standing in the Court of Appeal, and subject to the discretion of that Court, might address not only arguments in law to the Court of Appeal but also submit affidavit evidence on their behalf".
After referring to Mr. Shaw's opposition to that course, he said:
"I have come to the conclusion that there is substance in Mr. Shaw's contention that the matter having effectively finished he is entitled to have a Judgment which he may wish to make the subject of an Appeal".
The learned judge then made an order slightly amending the terms of the ex parte injunction. Paragraph (A) of his order, against which this appeal is brought, is:
"Until trial or further order the defendants and each of them be restrained from:-
(1) disclosing or making use of any confidential information being the property of the plaintiff for any purpose whatsoever
(2) infringing the plaintiff's copyright in their internal or other documents".
(B), (C) and (D) are not the subject of these appeals. Those orders, (B), (C) and (D) still exist and, for all the court knows, have been complied with.
There is still in this action by the plaintiffs no claim for defamation. There could not, of course, have been such a claim in advance of publication when the writ was issued on 8th March, but there has been no amendment of the writ since that date.
There is no dispute, first of all, that the documents which are the subject of this appeal are confidential; that they were taken by the first and second defendants without authority and handed over to the fourth defendants—whether for reward we do not know—and that publication would be a breach of confidence by all four defendants subject...
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