Swinney v Chief Constable of Northumbria Police Force
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE WARD |
| Judgment Date | 22 March 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0322-2 |
| Docket Number | QBENI 95/0305/E |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 1996 |
[1996] EWCA Civ J0322-2
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 Laws)
Before: Ord Justice Hirst Lord Justice Peter Gibson Lord Justice Ward
QBENI 95/0305/E
MR. J GOMPERTZ QC & MR. T WYNN (Instructed by Messrs. Crutes, Newcastle upon Tyne) appeared on behalf of the Appellant
MR. J POWELL QC & MR. R CRAVEN (Instructed by Messrs. Hay & Kilner, Newcastle upon Tyne) appeared on behalf of the Respondent
Friday 22 March 1996
LORD JUSTICE HIRST: We have this morning had an application by Mr. Powell, on behalf of the Plaintiffs, for leave to amend his Statement of Claim by adding an extra cause of action for breach of confidence. The facts of the case will be fully rehearsed in the main judgments which we are about to deliver, so the two judgments should be read together.
The proposed amendment adds three paragraphs —5(a) to 5(c) —alleging that the information which the first Plaintiff gave to the police officer was given in confidence, and that, as a result, a duty of confidentiality was either implied (for which purpose the Plaintiffs say they rely on the sensitivity of the information passed on, and the foreseeable consequences of it being obtained by a local criminal); alternatively, it is alleged that the duty of confidentiality was express. Under that heading the computer printout containing the information is relied upon. As a result, in paragraph 12 of the proposed amended Statement of Claim, it is said that what occurred was caused by the negligence, and then there is added "and/or the breach of duty of confidentiality of the defendant's officers."
In his submission in favour of being granted leave to amend, Mr. Powell recognises that the amendment is sought at a time after the Limitation Act has applied, but he relies and seeks to invoke the well-known powers of the Court under O. 20,r.5(2) and (5) as follows:
"(2) Where an application to the Court for leave to make the amendment…..is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.
(5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment."
He therefore invites the Court to exercise its discretion under those two rules.
Mr. Gompertz QC, in his very helpful argument, recognises that the Court has a discretion under those rules, and he recognises, as is most clearly the case, that in particular sub-rule (5) applies because the amendment arises not only out of substantially the same facts, but out of identical facts. It merely states a new framework, namely the cause of action of breach of confidence, in which to place those same facts. It is therefore common ground that this Court has a discretion at the present juncture to grant that amendment.
Put in summary form, Mr. Powell QC submits that the authorities, and in particular the "Spy catcher" case, which is Attorney-General -v- Guardian newspapers (No 2) [1990] 1 AC 109, establish the existence of this cause of action. He refers particularly to the speech of Lord Goff in which he stated at 281C:
"I start with the broad general principle…..that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential…..reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection."
He then says as 281E:
"…..it is well settled that a duty of confidence may arise in equity independently of such cases….."
He further says at page 286D that the remedy of damages exists on the footing that it is now available
"…..despite the equitable nature of the wrong, through a beneficent interpretation of….. (Lord Cairns' Act)….."
He also states at 287E-F that:
"It is not to be forgotten that wrongful acts can be inadvertent as well as deliberate….."
So it is clear on that authority that the conduct, in order to be a breach, need not necessarily be intentional.
In the present case, it is the heart of Mr. Powell's submission that the alleged disclosure was negligent, and if that is so and he makes that good, then clearly, in principle, he may come within Lord Goff's framework for the establishment of this cause of action.
Mr. Powell also relies on the case of Seager -v- Copydex Ltd, which appears in two stages, firstly reported at [1967] 1 WLR 923, and secondly as Seager -v- Copydex No 2 [1969] 1 WLR 809. In that case it is clearly stated that this remedy is akin to a remedy in tort: see per Lord Denning MR at page 813A and per Winn LJ at page 815B. It was also a case where the breach was wholly inadvertent because, as is stated in the headnote on page 924 of the first of the two reports:
"…..although the defendants honestly believed that the alternative grip was the result of their own ideas, they had unconsciously made use of confidential information given to them by the plaintiff as a spring-board for activities detrimental to him, thereby infringing a duty of confidence."
Then the Court went on to hold:
"Accordingly the Plaintiff was entitled to damages to be assessed on the basis of reasonable compensation for the use of the confidential information which had been given."
Basing himself on those statements of principle, Mr. Powell submits that it is proper for him to ask the Court to exercise its discretion in favour of the amendment.
Mr. Gompertz resists the application. He submits that this is really no more than a repetition of an existing allegation, and he asks what is the purpose since, under this new proposed cause of action, negligence is also relied upon. He says it is no more than reframing the Plaintiffs' original case in negligence in another form, though he does accept that, had this been included in the Statement of Claim from the outset, there would have been no basis on which he could have struck it out. He then submits that the application is made very late and on the legal aspects of the matter he submits that, in the circumstances of this case, namely inadvertent disclosure without the existence of a contract, there is a doubt as to whether the cause of action exists in such circumstances. He relies on an interesting analysis by the Law Commission in their report on breach of confidence, presented to Parliament in October 1981 as CP 8388. The discussion of this problem is to be found at paragraphs 3.8 and 4.14, considering both Seager -v- Copydex, and the well-known decision of the House of Lords in Weld-Blundell -v- Stephens [1920] AC 956. Mr. Gompertz then says: why should this particular defendant be the test bed on which this interesting point of law should be possibly decided?
In my judgment, Mr. Powell has made good the point that he has an arguable case in breach of confidence, if he makes good the factual allegations in his Statement of Claim, though I do not hold that he will necessarily succeed, because it is quite clear that there are a number of pitfalls in front of him, as is illustrated by the analysis of the law contained in the Law Commission Report. But I think the case is at least arguable for the reasons he gives. Indeed the Law Commission themselves recognise that it is arguable.
I fully recognise that the application to amend is quite late, in the sense that a good deal of time has gone by since the events took place, but it is not late in terms of the history of the action, since the case has not yet reached the stage of discovery or of the summons for directions. There will, therefore, be plenty of time for the confidence aspect to be fully investigated before the case comes to trial.
Mr. Gompertz's arguments were well addressed and very fairly presented, but taking the matter as a whole, I have come to the conclusion that the right course is to grant the amendments sought, and I would so order.
LORD JUSTICE GIBSON: I agree. The amendments suggested in paragraphs 5(a) to 5(c) simply spell out in more detail what is already averred, i.e. that the information which was passed by the First Plaintiff to the police was confidential information. So far as the new cause of action is concerned that there has been a breach of the duty of confidentiality leading to loss and a claim for damages, the decision of the House of Lords in Weld-Blundell -v- Stephens [1920] AC 956 shows that, where parties are in a contractual relationship and confidential information is disclosed or used through the negligence of the party to whom that information has been imparted, an action for damages will lie. In that case only nominal damages was awarded, but the principle that damages might be obtainable in such a case was thereby established.
In the Law Commission's report on Breach of Confidence [1981] Law Com. No.110, the Law Commission said in paragraph 4.14:
"There does not appear to be any clear answer in the present state of the law to the question ….. whether a person who is under a duty of...
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