- This is an appeal
by the Defendant Vanessa Frisbee made with the permission of Patten J against
the decision of Deputy Master Lloyd ("the Master") given on the 2nd August
2001 ("the Decision") on an application by the Claimant Naomi Campbell for
summary judgment. By the Decision the Master gave summary judgment for the
Claimant in respect of the Defendant's disclosure of information relating
to the Claimant's personal life, but directed that the rest of her claim should
proceed to trial. On this appeal the Defendant argues that the entirety of
the action should proceed to trial.
- In this action
the Claimant claims damages or an account of profits for breach of an obligation
of confidence contained in or arising out of a contract for services between
her and the Defendant. The alleged breach was the disclosure without the Claimant's
consent for reward of personal details of the Claimant's life to the News
of the World for use in an article in that newspaper published on the 4th
June 2000 ("the Article"). The issues raised on this application are essentially
twofold. The first is whether the Defendant has an arguable defence that the
obligation of confidence was discharged by the wrongful repudiation of the
contract for services by the Claimant. The second is whether, if the obligation
of confidence was not so discharged, the Defendant has an arguable defence
that there was a public interest in disclosure of this information to the
press.
FACTS
- The facts of
this case are fully and fairly set out in the careful and considered decision
of the Master. It is sufficient that I summarise them very shortly. The Claimant
is a well known model. In January 2000, the Claimant by her agent Mr Michel
entered into an oral contract ("the Contract for Services") with the Defendant
for the provision by the Defendant of her services to the Claimant on a weekly
basis. The Contract for Services provided that the payments for these services
would be made on the Claimant's behalf through Massima Management Ltd; that
the Defendant would keep confidential information about or relating to the
Claimant learnt during or as a result of her work or the provision of her
services; and that the Defendant would enter into a written agreement with
the Claimant relating to the protection of confidential information relating
to the Claimant. That written agreement took the form of a letter dated the
9th February 2000 ("the Confidentiality Agreement"). Under the Confidentiality
Agreement, in consideration of the Claimant continuing to retain the Defendant's
services, the Defendant gave a series of undertakings to protect any information
obtained during the performance of her duties as strictly confidential and
not to divulge that information to any member of the public or media. In particular
she agreed that: (a) no information would be disseminated to the media without
the Claimant's express written consent; (b) information relating to the Claimant's
professional and/or personal life had an inherent value in publication rights
to that information and that dissemination of such information in contravention
of the agreement would pose a serious threat to the Claimant's professional,
economic, commercial and personal interest; (c) the duties imposed on the
Defendant under the agreement, whether express or implied, were of a fiduciary
nature; and (d) the Confidentiality Agreement would continue beyond the effective
duration of the professional relationship between the parties.
- The Claimant
pleads that it was an implied term of the Confidentiality Agreement that the
Defendant would not divulge to the media or any third party any information
(whether true or false) about or relating to the Claimant which the Defendant
claimed to have learnt or which was purported to be learnt in the course of
or as a result of her work for or provision of services to the Claimant. The
Defendant admitted this in her original Defence and was refused by the Master
permission to amend to deny this allegation, and there is no appeal against
that order. Likewise the Claimant pleaded that by reason of the relationship
between the parties the Defendant owed the Claimant duties of confidence.
This plea was also admitted in the original Defence. The Master likewise refused
permission to amend to deny this allegation and there is no appeal against
this holding.
- The Contract
for Services remained in force between the 24th January 2000 and the 7th April
2000 when relations totally broke down between the parties. The Defendant
alleges that on that date the Claimant violently assaulted her and that this
conduct (which was the culmination of a whole series of acts constituting
unacceptable behaviour by the Claimant) led to the acceptance by the Defendant
of them as a repudiation discharging the Contract for Services and at the
same time by operation of law the Confidentiality Agreement. The Claimant
denies these allegations against her, but since these issues cannot be tried
on this application, for the purpose of this application (and for this purpose
only) the allegations must be assumed to be correct.
- Shortly thereafter
the Defendant gave an interview and sold her story (through her agent Max
Clifford) to the News of the World for which she was paid £25,000 and Max
Clifford was paid £5,000, and based at least in part on and making use of
the information provided at that interview the News of the World on the 4th
June 2000 published the Article. The publication of the Article prompted the
Claimant on the 9th June 2000 to bring these proceedings in which she claims
damages for breach of contract and/or fiduciary duty and/or restitutionary
damages and/or an account of profits. The cause of action in each case is
the breach of the express and implied obligations of confidentiality in the
Contract for Services and the Confidentiality Agreement which I have set out.
The Defendant counterclaims in the proceedings for damages for the alleged
assault. On the 20th May 2001 the Claimant issued the Application Notice now
before me seeking summary judgment. The application came before the Master
who in the Decision gave summary judgment on part only of the claim and refused
permission to appeal. Patten J gave the Defendant permission to appeal and
the appeal is now before me.
THE CONFIDENTIAL
INFORMATION
- An examination
is required of the nature of the information supplied by the Defendant to
the News of the World contained in the Article. The Article includes information
which the Claimant admits supplying and which she denies supplying; and in
respect of the information which the Defendant admits supplying part relates
to the alleged assault on her by the Claimant and part relates to the personal
life of the Claimant and most particularly an alleged sexual relationship
with an actor Mr Joseph Fiennes ("Mr Fiennes"). The Claimant concedes (as
the Master held) that summary judgment is not available in respect of the
information the supply of which is in dispute: that issue of fact can only
be resolved at the trial. Likewise the Claimant concedes (as the Master held)
that summary judgment is not available in respect of the information relating
to the assault since there is a serious question to be tried whether there
may be a public interest in publication of conduct constituting the commission
by the Claimant of a criminal offence. The critical issue before the Master
and (on this appeal) before me is whether the Claimant is entitled to summary
judgment in respect of the information relating to the Claimant's personal
life.
- The information
in question extracted from the Article (as set out in an agreed document)
reads as follows:
"[The
revelation that] Naomi had been secretly sleeping with [Joseph Fiennes] since
the beginning of March.
It
was then that Naomi asked me to travel to Berlin with her... She told Flavio
[Briatore] she had a two-day fashion shoot with German Vogue. But the job
was fictitious because she wanted to see Joe who was filming near Berlin.
When we flew out Naomi was like an... She said they'd bumped into each other
a few times before but nothing happened. She made it plain that she was going
to seduce him that night. I remember asking Naomi, 'what about Flavio?' She
said that he was more a father figure to her. She said she loved him but wasn't
in love with him and could not remember the last time they had shared the
same bed. When we arrived at the Adolon hotel I found she had booked the presidential
suite.
Just
before 8pm Vanessa left her boss and retired to her room on an upper floor.
Twelve hours later she was sitting on the foot of exhausted Naomi's double
bed. 'There were clothes dotted around all over the place... Naomi was tired
but ecstatic. She said they'd made love four or five times. Joe had to leave
at 5am because he had an early start but he was going to see her again that
night.'
The
next morning Vanessa and Naomi flew back to Britain. 'She [Naomi] said she'd
have to get a morning-after pill as she hadn't used protection... She said
she knew someone at her Paris agency who could sort her out.'
Two
weeks later... Naomi 'again wanted Flavio to think she was abroad modelling.
We agreed to say she was in France.'
As
it turned out that was a big mistake. On the Wednesday before the Bafta awards
Vanessa received a call from Naomi's main sponsor Wella. They wanted to film
an interview with her. When Vanessa said 'Sorry, she's in France', Wella suggested
sending a camera crew there.
Vanessa
knew that Naomi's pal Amanda Bross, who worked for the Premier model agency
in Paris, was aware of the Fiennes affair and had a good relationship with
Wella. Vanessa asked her to put them off the scent. All might have been OK
... but Amanda phoned Naomi and told her how she and Vanessa had saved her
from embarrassment.
Naomi
sneaked from her live-in partner Flavio Briatore, 45, to bed the Shakespeare
in Love star. She promised Flavio she was away on a photo-shoot... Really
she was in bed with Joe and told me it was the best sex she'd ever had....'
[Vanessa] was ordered to cover up the supermodel's secret night of sex with
film idol Joseph Fiennes.
Working
for Naomi ... was a nightmare from day one. Sometimes she worked such long
hours she had to stay overnight - and then her duties extended to waking up
her boss. ... The first time I did it I tapped on her bedroom door and said,
'Naomi, are you awake?' She started shouting, saying she needed to be woken
up more gently.
During
Naomi's calmer moments she would ask Vanessa to write down Shakespearean sonnets
for her. Vanessa later discovered that Naomi was sending them as text messages
to lover Fiennes' mobile phone."
- On the face
of it, it is clear that the provision by the Defendant to the News of the
World of the information relating to the Claimant's personal life was in flagrant
and deliberate breach of her express and implied duties of confidentiality
and most particularly those assumed under the Confidentiality Agreement. The
Defendant has however sought to justify her disclosure. The issue raised on
this application is whether the Defendant has a real prospect of success in
justifying her disclosure on the grounds presently pleaded in her Defence
and intended to be pleaded in her draft Amended Defence. I must consider each
of these pleas in turn.
APPROACH TO APPLICATIONS
FOR SUMMARY JUDGMENT
- Before I do
so, I should however say a word on the approach to be adopted on an application
such as the present. CPR Part 24.2 reads as follows:
"The
court may give summary judgment against a defendant on the whole of a claim
or on a particular issue if—
(a) it
considers that—
...
(ii) that defendant has no real prospect of successfully defending the claim
or issue; and
(b) there
is no other compelling reason why the case or issue should be disposed of
at trial."
- The note in
the White Book (at paragraph 24.2.3) explains:
"In
order to defeat the application for summary judgment it is important for the
respondent to show some 'prospect' i.e. some chance of success. That prospect
must be real i.e. the court will disregard prospects which are fake, fanciful
or imaginary. The respondent is not required to show that his case will probably
succeed at trial. A case may be held to have a real prospect of success even
if it is improbable."
- In Three
Rivers District Council v. Governor and the Company of the Bank of England
(No 3) [2001] 2 All ER 513 Lord Hope stressed that the overriding objective
of the CPR is to enable the court to deal with cases justly, and this includes
dealing with them in a proportionate manner, expeditiously, fairly and without
undue expense; and that each case is entitled only to an appropriate share
of the court's resources and account has to be taken of the need to allot
resources to other cases; but that it would only be right to strike out a
claim (or defence) if it has no real prospect of succeeding at a trial and
the power under Part 24 cannot be exercised to dispense with the need for
a trial where there are issues which should be investigated at the trial:
see paras 93 and 116.
- The issues raised
by the Defendant in her Defence are clear and distinct issues, not of fact,
but of law. If the issues are decided in favour of the Claimant, a lengthy
and expensive trial of issues of fact relating both to the Claimant's conduct
towards the Defendant (and in particular whether it was such as to constitute
a repudiatory breach of the Contract of Services) and to her lifestyle and
public image will be avoided. I fully recognise that there will remain outstanding
issues to be tried if the action proceeds to trial on the other issues, most
particularly relating to the alleged assault, but there is a prospect that
the final resolution of the issues the subject of the summary application
may focus the parties' attention on some form of settlement or mediation.
As it seems to me, in these circumstances, it is incumbent upon me to scrutinise
with the greatest care the issues of law raised by the Defendant in order
to decide whether they do have some real prospect of success, and if I reach
the conclusion that they do not, I should give summary judgment for the Claimant.
DISCHARGE BY
BREACH
- The Claimant's
application proceeds on the basis (as it must) that the Defendant succeeds
in her contention that the Claimant by her conduct repudiated the Contract
for Services and that the Defendant accepted such repudiation. The issue of
law is as to the effect of such repudiation upon the obligations of confidence
owed by the Defendant under the Contract for Services and Confidentiality
Agreement to the Claimant.
- The Defendant
contends that the repudiation discharged all such obligations. This contention
was rejected by the Master as supported by no authority cited to him. This
contention has been supported before me by reference to the decisions of the
House of Lords in General Bill Posting Co v. Atkinson [1909] AC 118
("General Bill Posting") and of the Court of Appeal in Rock Refrigeration
Ltd v. Jones [1997] 1 All ER 1 ("Rock"). General Bill Posting established
(as Rock confirmed) that, where an employer repudiated a contract of employment
and that repudiation was accepted by the employee, the employee was thereupon
released from all restraint of trade covenants and that such covenants could
not thereafter be enforced against him even where expressed to be operative
after determination of the contract "howsoever arising". I shall refer to
this as "the Principle". The Principle must be equally applicable whether
the contract is contained in one or more documents and whether or not in the
latter case the documents bear different dates. I reject the Claimant's submission
that any significance should be attached to the fact that the Principle, if
otherwise applicable, is precluded from application in this case in respect
of the provisions of the Confidentiality Agreement because they arise under
a separate document. The Defendant's contention requires consideration of
two distinct (though related) questions. The first is whether the Principle
extends beyond restraint of trade covenants to confidentiality covenants.
The second is whether and to what extent the Principle applies in cases of
contracts, not of employment, but for services.
- I turn first
to the question whether the Principle extends to confidentiality covenants.
In neither General Bill Posting nor Rock was any question raised for decision
as to the impact of acceptance by an employee of such a repudiation by an
employer on confidentiality obligations of the employee, but in Rock certain
observations were made to which reference is required.
- Simon Brown
LJ at page 9(e)-(f) made the general observation that the decision in Rock
to the effect I have set out assumed (without deciding) that the Principle
(that all restrictive covenants become unenforceable upon the employee's acceptance
of the employer's repudiatory breach) remains wholly unaffected by the Photo
Production Limited and Securicor Transport Ltd [1980] AC 827 line of authority.
- Morritt LJ said:
"It
has been suggested that the application of the principle of General Billposting
Co Ltd v Atkinson [1909] AC 118, [1908-1910] All ER Rep 619 may enable
an employee to retain for himself that which he should not when his employment
has been terminated even by his acceptance of his employer's repudiation.
For my part I doubt it. The employer's rights of property will remain unimpaired
even if the employment terminated as a result of the employee's acceptance
of his wrongful repudiation. As the employment will be at an end the employee's
licence to use the company car, for example, will have come to an end too.
Similar situations will arise with regard to the employer's trade secrets
and papers and access to his property."
- Phillips LJ
was however concerned that the Principle might likewise render unenforceable
confidentiality obligations, absurd though this would be, and suggested a
possible "escape":
"I
have concluded that the rule in General Billposting accords neither
with current legal principle nor with the requirements of business efficacy.
It must be open to question whether this court can legitimately distinguish
General Billposting....
In
General Billposting the majority of the House of Lords held that the
manager, having been wrongfully dismissed, was 'justified in rescinding the
contract and treating himself as absolved from the further performance of
it on his part.' Since 1909 the law in relation to the discharge of contractual
obligations by acceptance of a repudiation has been developed and clarified.
...
The
theory that the contract was abrogated upon acceptance of a repudiation, or
a fundamental breach, was finally laid to rest by the decision of the House
of Lords in Photo Production Ltd v. Securicor Transport Ltd [1980]
1 All ER 556 at 567, [1980 AC 827 at 849, where Lord Diplock summarised the
effect of accepting a repudiation as follows:
'(a)
there is substituted by implication of law for the primary obligations of
the party in default which remain unperformed a secondary obligation to pay
money compensation to the other party for the loss sustained by him in consequence
of their non-performance in the future and (b) the unperformed obligations
of the other party are discharged.'
There
is no difficulty in applying these words to the reciprocal positive obligations
that arise under a contract of employment: to provide services on the part
of the employee and to provide the consideration for those services on the
part of the employer. But I consider that there are real difficulties in applying
those words to the negative obligations that are placed on an employee by
a restrictive covenant in relation to the period after his employment has
ceased. I can best demonstrate this difficulty by taking as an example the
situation where the employee commits serious misconduct which warrants his
dismissal. If the employer exercises his right of summary dismissal, is it
to be suggested that he thereby discharges the employee from his obligation
to observe negative restrictions imposed either expressly or impliedly under
his contract of employment, such as the duty not to disclose confidential
information? This would seem to follow if one applies the principles underlying
General Billposting to such obligations, yet such a result borders
on the absurd....
Where
an employer discloses to an employee confidential information, or otherwise
puts the employee in a position to harm the employer's goodwill, it will usually
be reasonable to impose negative restraints sufficient to protect those legitimate
interest of the employer. Contracts of employment are now subject to complex
statutory regulation, much of it designed to protect the employee. Cases of
deliberate wrongful dismissal of employees, or repudiatory breach of the duties
owned to them, are much less common than bona fide disputes as to whether
or not there has been unfair or constructive dismissal. Employees who have
been unfairly dismissed are entitled to statutory compensation. It does not
seem to me necessarily fair or reasonable that an employer who is held liable
to pay such compensation should also be at risk of losing the protection that
is reasonably necessary to safeguard his confidential information or goodwill.
In
my judgment negative restraints agreed to apply after the termination of employment
should not be equated with the primary obligations that are discharged when
a contract of employment is terminated consequent upon repudiation. The consideration
for such restraints is in reality not the obligation to give the appropriate
notice of termination of the employee's services, but the granting of employment
that affords access to confidential information and goodwill. Such restraints
are not 'one of the purposes of the contract' (Heyman v Darwins): they
are ancillary to those purposes. But for General Billposting I can
see no principle of law which precludes the parties from validly agreeing
to restraints that will subsist, even if the employment is brought to an end
by repudiation. I think it at least arguable that, having regard to the subsequent
development of this area of the law, not every restrictive covenant will be
discharged upon a repudiatory termination of the employment. however, for
the reasons which follow, it is not necessary to resolve this issue."
- It should be
noted that in the course of his judgment in the Court of Appeal in Hurst
v. Bryk [1999] Ch 1 at 31 G-H (the decision in which was upheld
by the House of Lords reported [2000] 2 WLR 740 on other grounds), Simon Brown
LJ referred with approval to Phillips LJ's analysis set out in the last paragraph
which I have cited of his judgment in Rock.
- Faced with this
state of the authorities, if it was necessary to decide this application by
reference to the principles applicable in case of repudiation of a contract
of employment by an employer, I would unhesitatingly hold (following the judgment
of Morritt LJ) that repudiation by the Claimant and acceptance of that repudiation
by the Defendant did not prejudice the rights of the Claimant in respect of
confidential information acquired by the Defendant in the course of her work.
Any other conclusion (as Phillips LJ acknowledged) would be absurd. As the
Master held, there is no authority precluding this conclusion: at the most
there is a degree of concern expressed by Phillips LJ; but I have no doubt
that at any trial the law will be laid down as Morritt LJ confidently stated
it. There can be no conceivable justification for granting as a windfall to
a wrongly dismissed employee a present of his employer's trade or other secrets
or confidences. The law has always placed the highest importance on the right
of an employee on cesser of his existing employment to obtain further gainful
employment. Thus it protected former employees from unfair and unreasonable
covenants in restraint of trade; the Principle goes further and protects employees
from even fair and reasonable covenants where the employee has been wrongfully
dismissed. The law has gone further and granted a degree of protection to
former employees in respect of confidential information which the employees
cannot reasonably help carrying away in their heads and using in their fresh
employment: see Faccenda Chicken v. Fowler [1987] Ch. 117 at 136-8,
Subject only to this limited qualification, the employee's acceptance of the
employer's repudiatory breach cannot displace the employer's established property
rights and these include his rights in respect of confidential information.
- But this case
does not have to be decided by reference to the Principle, for this is not
a case where the contractual relationship was under a contract of service
between employer and employee: it was a contract for services between an independent
contractor and a person engaging the services of that contractor. In the case
of contracts for services, there can be no conceivable basis for the suggestion
that a repudiatory breach by the client entitles the independent contractor
to a release from obligations of confidentiality. It is plain beyond question
that the obligation of confidence of e.g. a lawyer, doctor or security consultant
survives acceptance by the service provider of the repudiation of his contract
by the client. Indeed that is surely the premise upon which the relationship
between client and service provider is created. Likewise the law protects
marital confidence notwithstanding repudiation of the marital vows, adultery
and a divorce: none of these events operate to release the "innocent" spouse
from the obligation to preserve these earlier confidences: Argyll v. Argyll
[1967] Ch. 302 at 332-3. I may add that this conclusion supports the view
which I have expressed as to the effect on confidentiality obligations of
an acceptance by an employee of repudiation by his employer: there can be
no logical or sensible reason (let alone any principle) which supports the
view that a confidential adviser or agent (e.g. a solicitor or doctor) is
released by his acceptance of a wrongful repudiation if he is engaged under
a contract for services, but not if engaged under a contract of service. Accordingly
the duty of the Defendant not to divulge or exploit confidential information
acquired in the course of her engagement by the Claimant in this case survived
any acceptance by the Defendant of the repudiation of the Contract of Services
by the Claimant. I therefore hold that this first ground of defence cannot
succeed.
PUBLIC INTEREST
- The second defence
raised is that there is a public interest in the disclosure of the revelations
made by the Defendant to the News of the World and that the existence of this
public interest provides a justification for what otherwise would have been
a breach of confidence and protects the Defendant from any award of damages
or account of profits.
- The Defendant
first invokes her rights under Article 10(1) of the European Convention of
Human Rights ("Article 10") to freedom of expression. Freedom of expression
is the rule and regulation of speech is the exception requiring justification:
see Reynolds v. Times Newspapers Ltd [2001] 2 AC 127. Freedom of expression
remains the rule though it may cause needless pain, distress and damage: per
Hoffmann LJ in R v. Central Independent Television PLC [1994] Fam 192
at 201-4. Interference with freedom of expression has to be justified even
where there is no particular interest in a particular publication, and is
strengthened by the existence of a public interest in publication: A v.
B&C (CA) 11th March 2002 at para 11.viii. But that right is implicitly
qualified by the right of the Claimant under Article 8 to respect for her
privacy and is explicitly qualified by the provision in Article 10(2) for
protection of her right to the protection of her reputation and of her right
to confidentiality in respect of information disclosed to the Defendant. As
Sedley LJ said in Douglas v. Hello! Ltd [2001] 2 WLR 992 at 1027 paragraph
133, you cannot have regard to Article 10 without having equally particular
regard at the very least to the rights to respect for private and family life,
home and correspondence conferred by Article 8. The right to privacy and to
freedom of expression are of equal value: see the Council of Europe Resolution
116 5 of 1998 para 11 cited in para 11.xii of the judgment in A v. B&C
above.
- The Defendant
then refers to section 12 and most particularly section 12(4) of the Human
Rights Act 1998 ("Section 12"). Section 12 provides that, if the court is
considering (as it is in this case) whether to grant relief which might (if
granted) affect the exercise of the Convention right to freedom of expression,
the court must have particular regard to the importance of the Convention
right to freedom of expression and, where the proceedings relate to material
which the Defendant claims, or which appear to the Court, to be journalistic,
literary or artistic material (or conduct connected with such material), the
extent to which it is in the public interest for the material to be published
and any relevant privacy code.
- There was dispute
before me as to the extent to which Section 12 has application in this case.
There can be no doubt that it does apply. There is no definition in this Act
of the term "journalistic material". There is a definition of the same term
in and for the purposes of the Police and Criminal Evidence Act 1984. Section
13 of that Act protects from seizure "journalistic material" and defines it
for this purpose as material acquired or created for the purpose of journalism
in the possession of the person who acquired or created if for the purpose
of journalism. As it seems to me for the purpose of Section 12 "journalistic
material" embraces material acquired or created for the purpose of journalism
and conduct connected with such material; and to bring this section into play
it is sufficient that the Defendant claims that her conduct in giving the
interview to the News of the World for the purposes of the Article constituted
such material or was connected with the Article.
- It is common
ground that in accordance with the provisions of Section 12 (and indeed irrespective
of that section) it is necessary to have regard to the extent to which it
was in the public interest for the material to be published. There is however
an issue as to the applicability of the provision for regard to the relevant
privacy code.
- Undoubtedly
if the Claimant had made a claim in this action against the News of the World,
the relevant privacy code in the Code of Practice of the Press Complaints
Commission ("the Code") would have been applicable. The Code provides that
everyone is entitled to respect for his or her private and family life, home,
health and correspondence and that a publication will be expected to justify
intrusions into any individual's private life without consent. The Code then
goes on to provide that there may be exceptions where they can be demonstrated
to be in the public interest, and that the public interest includes:
"iii Preventing
the public from being misled by some statement or action of an individual
or organisation."
- I do not think
that the Code is a relevant privacy code when considering a claim against
an informant such as the Defendant. The Code is a code laid down by the press
for the press establishing a benchmark in respect of the professional standards
of the press enforced by the Press Complaints Commission ("the PCC"). The
Code has no application to the Defendant: it does not lay down standards in
respect of compliance or otherwise with obligations of confidence on her part;
and the PCC has no jurisdiction in respect of her conduct. But even if (contrary
to my view) I am required in this case to have regard to the Code, I do not
think that this would affect the outcome. The provisions of Section 12(4)
do not give the right of free expression a presumptive priority over other
rights: what it does require is a balancing of that right against the rights
of others and most particularly (in this context) the right to protection
of confidentiality, privacy and contractual rights to both confidentiality
and privacy.
- The principle
of law is clear that a contractual obligation of confidentiality is not sacrosanct:
the Common Law recognises that the public interest may require or justify
encroachments and this approach is confirmed by Article 10 and Section 12.
But when undertaking the necessary balancing exercise between the needs for
preserving confidentiality and for disclosure, it is essential to bear in
mind: (a) that there is a substantial public interest in requiring parties,
who have with their eyes open and for valuable consideration contracted (most
particularly in contracts of services or for services) not to disclose confidences,
to comply with those obligations: see Attorney General v. Guardian Newspaper
No 2 [1990] 1 AC 109 at 254-6 per Lord Keith; Attorney General v. Barker
[1990] 3 All ER 257 and Adams v. Attridge 8th October 1998 (Buckley
J); and (b) though the Court may take into account that the public have an
understandable and therefore a legitimate interest in being told information,
(see A v. B&C above para 11.xii), for the defence of public interest
to override an express obligation of confidence, as a rule, the information
must go beyond being interesting to the public and private matters which are
of no real concern to them: there must be a pressing public need to know:
see e.g. Lion Laboratories v Evans [1985] QB 526 at 537. Where the
outcome of the balancing exercise is clear, that exercise may be undertaken
at the interlocutory stage: see e.g. Ashdown v. Telegraph [2001] 3
WLR 1368. The critical issue on this application is whether there is a real
possibility that the court will hold at the trial of this action that the
Defendant was justified in making the disclosures which she did on public
interest grounds, and excuse her from an award of damages or an account of
the profits made in respect of such disclosure.
- The Defendant
particularises in paragraph 9 of her draft Amended Defence the facts and matters
relied on in support of the allegation of public interest. Some part of the
particulars relate to the issue of the assault and are accordingly irrelevant
on this application. The substance of the relevant elements of these particulars
is that: (1) the Claimant regularly gives interviews and imparts personal
information including details of her romantic life; (2) that she accepts that
she is a role model for young women and has a high profile role in an Aids
related charity; (3) that she makes use of sophisticated public relations
advice; (4) that she has perpetuated a false image that she has a close and
happy sexual relationship with Mr Flavio Briatore, a sensible businessman
and stabilising father-figure; and (5) that she has rebranded herself (falsely)
as a reformed stable individual.
- Public figures
are entitled to a private life and protection of their rights of privacy and
confidentiality, but their public position exposes their lives and conduct
to closer scrutiny. This may be particularly the case where they have courted
publicity. In particular there is no doubt that, when a public figure has
painted a false picture of himself or herself, there may be a public interest
in correcting that picture. Whether the public interest is such as it overrides
an obligation of confidence depends upon the facts of the particular case.
Two factors or sets of factors appear to me to be of particular significance.
The first set of factors is the status of the public figure, the respect in
which the picture was false, the nature of the correction and the means taken
to effect the correction. The second factor is the nature of the confidentiality
obligation owed. Plainly the relationship between the parties owing and owed
the duty of confidentiality is significant: it can scarcely be suggested that
e.g. a lawyer, accountant or doctor is free to use the confidential information
which he possesses to make public revelations about his client or patient
to correct any false impression which the client or patient has created. The
trust to be placed by clients in their advisers or other confidants and their
legitimate expectation that the Courts will protect confidences reposed should
not lightly be undermined. Where a close confidential relationship exists
(as it did in this case), the contractually assumed duty of confidentiality,
though not sacrosanct, must be given full and serious regard and not lightly
be overridden.
- The high point
in the authorities relied on by the Defendant as lending support to the Defendant's
case is the decision of the Court of Appeal in Woodward v. Hutchins
[1977] 1 WLR 760. In that case the claimants, who were singers, applied for
an interlocutory injunction to restrain their former press agent from disclosing
confidential information concerning their private lives and conduct and restrain
a feared libel. The Court of Appeal held that no such injunction should be
granted. Lord Denning MR at pages 763-4 said:
"There
is no doubt whatever that this pop group sought publicity. They wanted to
have themselves presented to the public in a favourable light so that audiences
would come to hear them and support them. Mr Hutchins was engaged so as to
produce, or help to produce, this favourable image, not only of their public
lives but of their private lives also. If a group of this kind seek publicity
which is to their advantage, it seems to me that they cannot complain if a
servant or employee of theirs afterwards discloses the truth about them. If
the image which they fostered was not a true image, it is in the public interest
that it should be corrected. In these cases of confidential information it
is a question of balancing the public interest in maintaining the confidence
against the public interest in knowing the truth. That appears from Initial
Services Ltd v Putterill [1968] 1 QB 396, Fraser v Evans [1969]
1 QB 349 and D v National Society for the Prevention of Cruelty to Children
[1976] 3 WLR 124. In this case the balance comes down in favour of the truth
being told, even if it should involve some breach of confidential information.
As there should be 'truth in advertising', so there should be truth in publicity.
The public should not be misled. So it seems to me that the breach of confidential
information is not a ground for granting an injunction."
- Bridge LJ said:
"It
seems to me that those who seek and welcome publicity of every kind bearing
on their private lives so long as it shows them in a favourable light are
in no position to complain of an invasion of their privacy by publicity which
shows them in an unfavourable light."
- It is however
important to bear in mind that the extempore decision of the Court of Appeal
in that case was essentially based on three specific grounds: (1) that the
grant of an interlocutory injunction to restrain a breach of confidence would
have the same (unacceptable) effect as granting an injunction to restrain
the alleged libel, for which no injunction was available because of the plea
of justification; (2) that damages were an adequate remedy; and (3) that the
timing of the application for the injunction at the late hour when the newspaper
containing the material to which objection was taken was about to go to press
required the application for the injunction to be refused on grounds of balance
of convenience. The continuing applicability of the decision may now be open
to question (as Brooke LJ pointed out in Douglas v. Hello! Ltd [2001]
2 WLR 992 at 1019) on the ground that it does not accord with modern developments
in practice in relation to breach of confidence claims. The decision is clearly
no authority for the proposition that a confidential agent is excused liability
in damages or for an account of profits if he can establish that the confidential
information which he sold corrected an error in the public image of his principal.
- After conclusion
of argument two judgments were given to which I must refer, on both of which
I invited and received written submissions by the parties. The first was the
judgment delivered on the 14th February 2002 by Ouseley J in Theakston
v. MGN Limited [2002] EWHC 137 (QB). In that case a well-known television
presenter applied for an interlocutory injunction restraining the Sunday People
from publishing (a) the fact that he went to a Mayfair brothel and engaged
in sexual activity there; (b) details of those activities; and (c) photographs
of the presenter inside that Mayfair brothel. Ouseley J granted an injunction
restraining (c), but not (a) or (b). After stating that the balance between
competing Article 10 and Article 8 interests should be struck against granting
an injunction restraining publication of (a), he went on to summarise his
reasons for refusing to grant an injunction restraining publication of (b)
as follows:
"76. I
concluded however that an injunction would be unlikely to be granted at trial
because in the resolution of the conflict between Article 10 and Article 8,
the freedom of expression of the Sunday People and of the prostitute would
be given greater weight than the extra degree of intrusion into the Claimant's
privacy. I consider that the scales would be likely to come down in favour
of the freedom of expression of the newspaper and of the prostitutes unless
it was clear that there was a strong case for inhibiting it. I do not consider
that the confidentiality or privacy case in relation to the details of the
sexual activity is nearly strong enough to warrant the degree of restriction
involved. I do not think that confidentiality or privacy is inherent in the
fact that fees were paid or promised to be paid for sexual activities. Sexual
conduct for payment in a brothel where other people had access and could see
what was happening, where a number of prostitutes at least to some degree
were engaged with the Claimant and where it is clear there was no stipulation
for or mutual joint expectation of confidentiality, means that the case for
one party to such actions to claim that they were private is not strong."
- The factors
which the judge regarded as significant in reaching the decisions to refuse
injunctions in respect of (a) and (b) included: (a) the absence of any express
or implied stipulation for confidentiality (see paras 64 and 58); (b) the
nature of the person to whom the disclosure has been or is proposed to be
made (para 59); (c) the public character of the brothel; (d) the fact that
the claimant had placed aspects of his private life, whom he had intimate
relations with and his general attitude towards sexual relations and personal
relations into the public domain (para 68); and (e) the nature of his job
as a television presenter of programmes for the younger viewer (para 69).
It may be noted that, whilst he held that there was a public interest in disclosure
of the fact of his visit to the brothel and engagement in sexual activities
there, he held that there was no public interest in the publication of details
of the activities (para 75).
- By way of contrast,
the factors which I regard as significant in this case include the following:
(a) there were express confidentiality obligations which were, and were made
plain to be, of the essence of the engagement of the Defendant; (b) the alleged
relations between the Claimant and Mr Fiennes in this case took place between
those parties alone in a private place; (c) the alleged relations between
the Claimant and Mr Fiennes in this case cannot affect the fitness of the
Claimant to continue her career as a model, at any rate to any like degree
as the conduct of the presenter of programmes for younger viewers was regarded
as affecting the claimant's fitness in Theakston.
- The second was
the judgment of the Court of Appeal in A v. B&C above where the
Court of Appeal gave detailed guidance in respect of the grant of interlocutory
injunctions restraining the publication by the media of allegedly confidential
information. It is sufficient to say that I have sought to reflect that decision
in this judgment.
- In my view the
information sold by the Defendant to the News of the World was no more or
less than a titillating account of one or more private sexual encounters between
the Claimant and Mr Fiennes and the efforts made to cover it up. I fully recognise
that the lurid terms in which the revelations were made are irrelevant. I
fully recognise that the claimant is a public figure and that I must proceed
on the basis of the truth of the facts stated in the Defendant's particulars.
But I do not see how it is seriously maintainable that the public had any
interest in the content of the disclosures (most particularly that the Claimant
was cheating on her partner) or need to know or that the Defendant had any
such reason or justification for making her disclosures as required that the
Claimant be deprived of the protection of the confidentiality obligation which
the Defendant willingly, solemnly and for valuable consideration provided.
Even if (contrary to my view) the circumstances might have justified the refusal
of the grant of an interlocutory or even final injunction, they could in nowise
justify withholding the grant by way of relief of damages or an account of
profits: consider A v. B&C above at para 47 and Woodward v.
Hutchings above.
- I have been
taken to and read a great body of authority on the qualified right to freedom
of expression and the scope for application of the defence of public interest
to confidentiality claims. I do not think that there is any real prospect
of the court holding at the trial that the disclosure by the Defendant can
possibly be justified, let alone that the Claimant should be debarred from
a claim in damages or for an account of profits. The contracts between the
Claimant and the Defendant reflected the close personal relationship called
for between them and the need for the Claimant to place implicit trust in
the Defendant. I do not see how there was a public interest in the encounters
or the privately expressed feelings of the Claimant for Mr Fiennes. The disclosures
made were a good "story", no more and no less. It was interesting and no doubt
sold newspapers. But I can see no reason why the Defendant should not pay
damages or account to the Claimant in respect of the profits earned from the
disclosure. There is no need or reason why the Claimant's claim in this regard
should proceed to trial. The words of Lord Denning in Initial Services
v Putterill [1968] 1 QB 396 at 406 appear to me to be particularly apposite:
"It
is a great evil when people purvey scandalous information for reward."
Protection
from that evil, so far as it involves any constraint on freedom of expression
or freedom of the press, requires justification as I have said in paragraph
24 of this judgment. But this justification may be afforded where the information
is confidential and the vendor as a fundamental term of his or her contract
for service or services has unequivocally agreed not to do so and where the
protection of confidences is an essential element of the contractual relationship.
- The Court will
not lightly displace the obligation to respect confidences assumed under a
binding contract of employment or engagement to provide services, still less
the obligation to pay damages or account for profits. This is necessary if
trust and confidence are to be maintained in relationships which depend upon
their continued existence. There is a substantial public interest in maintaining
such relationships and protecting the parties from exploitation for profit
the confidences reposed. Further the Court in exercise of its jurisdiction
to grant summary judgment should not hesitate to dismiss a defence of public
interest such as is maintained in this case which (if it is allowed to stand)
requires the exposure of the claimant's private life to public view when a
confidentiality obligation designed to protect privacy will plainly prevail
at trial.
CONCLUSION
- In my judgment
the Defendant has no real prospect of successfully defending the claim in
respect of her disclosure of information relating to the Claimant's personal
life and there is no compelling reason why that issue should be disposed of
at trial. I accordingly dismiss this appeal.