England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ashdown v. Telegraph Group Ltd [2001] EWHC Ch 28 (11th January, 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2001/28.html
Cite as: [2001] EWHC Ch 28, [2001] ECDR 21, [2001] 2 WLR 967, [2001] EMLR 20, [2001] 2 All ER 370, [2001] RPC 34, [2001] Ch 685, [2001] HRLR 30

[New search] [Buy ICLR report: [2001] 2 WLR 967] [Buy ICLR report: [2001] Ch 685] [Help]

Ashdown v. Telegraph Group Ltd [2001] EWHC Ch 28 (11th January, 2001)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Case No. HC 1999 05116

BEFORE: BETWEEN:	THE VICE-CHANCELLOR
	ASHDOWN	Claimant
	-and-
	TELEGRAPH GROUP LIMITED	Defendant

Mr. R. Spearman Q.C. (instructed by Messrs Bates Wells and Braithwaite) appeared on behalf of the claimant
Mr. A. Nichol Q.C. and Mr. J. Mellor (instructed by Messrs. Olswang) appeared on behalf of the defendant.

This is an approved judgment of the Court and I direct that no further note or transcript be made.

The Vice Chancellor Dated: 11th January 2001

1. The Claimant is a member of Parliament and the former leader of the Liberal Democrats. It has been his practice for many years to keep diaries and other records of his experiences. He has always regarded those diaries and other records as confidential and has made it plain to those few people to whom they have been shown that they should treat them likewise. On 21st October 1997 the Claimant went to 10 Downing Street for a meeting with the Prime Minister (Mr Blair), Mr Peter Mandelson, Lord Jenkins of Hillhead and Mr Jonathan Powell. Later the same day the Claimant dictated a minute of that meeting ("the Minute"). The Minute was typed by his secretary and checked by the Claimant. Two copies were made, one was added to the Claimant's diaries and other records in his safe in his constituency, the other was read by a very small number of the Claimant's closest advisers and then shredded.

2. On 16th November 1999 BBC Radio 4 broadcast an interview with the Claimant recorded earlier that month. He referred to his diaries and the possibility of publishing them. He referred to high level discussions, both before and after the general election held on 2nd May 1997, concerning a coalition cabinet comprising members of the Labour Party and of the Liberal Democrats. Shortly after the interview the Minute was disclosed to Mr Murphy, the political editor for the Sunday Telegraph, by, according to him, an individual "who did not work for either Paddy Ashdown or the Liberal Democrat party...and felt that the public had been misled, that the secret [the coalition cabinet proposal] had been kept for too long and that the record should be 'set straight'". Mr Murphy did not doubt the authenticity of the minute; he recognised that it was a secret record.

3. In its issue published on November 28th 1999 the Sunday Telegraph published articles written by Mr Murphy or Mr d'Ancona on pages 1, 4 and 5 and 33 respectively under the headlines "Revealed: Blair's secret plan to form coalition", "Exclusive: how Blair prepared 'The Full Monty' with Ashdown" and "Mr Blair's 'Full Monty' is revealed". The articles incorporated substantial sections of the Minute both in direct quotation and in paraphrase.

4. On 6th December 1999 the Claimant started proceedings against the proprietor of the Sunday Telegraph seeking injunctions and damages or alternatively an account of profits for breach of confidence and infringement of copyright. A defence was served on 19th May 2000. On 30th June 2000 the Claimant issued the application now before me for summary judgment under CPR Part 24 in respect of his copyright claim only. He contends, in the words of CPR Rule 24.2(a)(ii) and (b), that the Sunday Telegraph has "no real prospect of successfully defending" that part of his claim and that "there is no other compelling reason why" that part of his claim should be disposed of only at a trial.

5. It is not disputed on this application that the Minute is a copyright work and that the Claimant is the owner of the copyright. Nor is it disputed that substantial parts of the Minute were copied in the issue of the Sunday Telegraph for Sunday 28th November 1999, in particular on pages 4 and 5. In its defence the Sunday Telegraph relies on the defences of fair dealing contained in s.30 Copyright, Designs and Patents Act 1988 ("CDPA") and the rule of law preventing or restricting the enforcement of copyright on grounds of public interest, recognised and preserved by s.171(3) CDPA. In addition the Sunday Telegraph relies on the provisions relating to Freedom of Expression contained in Article 10 European Convention on Human Rights now incorporated into the laws of the United Kingdom by Human Rights Act 1998. The Sunday Telegraph also relies on s.12(4) of the latter Act and on other matters said to constitute compelling reasons why the copyright claim should be disposed of at a trial.

6. So far as I am aware and so far as the researches of counsel could ascertain there has been no previous reported case in either the United Kingdom or in the European Court of Human Rights, in which the interaction between the right to freedom of expression conferred by Article 10 and the property right conferred on the owner of copyright, or any other intellectual property right, by the legislation of a state signatory to the Convention has been considered. Moreover it appears to me that the issues which have arisen in this case in the context of copyright are likely also to arise in the context of all other intellectual property rights. It is appropriate, therefore, to consider the Human Rights aspect first.

7. Article 10 of the ECHR provides

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

8. As paragraph 2 provides, the exercise of the freedom of expression may be "subject to such...restrictions...as are prescribed by law and are necessary in a democratic society...for the protection of the...rights of others...". Obviously the "rights of others" include those of the owner of a copyright. In addition Article 1 of the First Protocol provides

Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Thus, in addition to his rights to the copyright, the owner thereof also has the right to its protection in accordance with Article 1 to the First Protocol.

9. S.1(1) Human Rights Act 1998 defines "the Convention rights" as meaning

"the rights and fundamental freedoms set out in

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol, and

as read with Articles 16 to 18 of the Convention."

By virtue of s.2(1) Human Rights Act 1998 a court determining a question which has arisen in connection with a Convention right must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, whenever made or given, so far as, in the opinion of the court, it is relevant to the proceedings in which the question has arisen. S.3(1) requires that

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

By s.6(1) it is unlawful for a court to act in a way which is incompatible with a Convention right unless obliged so to act by primary legislation. S.7 enables a person who claims that a public authority, which includes a court, has acted in a way made unlawful by s.6(1) to rely on the Convention right or rights concerned in any legal proceedings if he is or would be a victim of the unlawful act.

10. The Sunday Telegraph contends that it has a good defence to the copyright claim under ss.30 and 171(3) CDPA. It is not seeking to rely on Article 10 as part of a claim pursuant to s.7 Human Rights Act. It relies on Article 10 in order to influence either the interpretation or the application of those provisions as required by s.3(1). It submits that it is entitled to the right to freedom of expression provided for in Article 10 and that the court can and should interpret and apply the provisions of CDPA to give effect to it. The effect for which it contends is that the copying of the Minute by the Sunday Telegraph would not constitute an infringement of copyright because what it did amounted to fair dealing with the work within s.30 or was excused by the rule of law referred to in s.171(3).

11. It is inherent in this argument that the right to freedom of expression for which Article 10 provides entitles the Sunday Telegraph to deal with a copyright work in a manner not hitherto permitted by the CDPA. If that were not the case there would be no need to rely on the Article. The Sunday Telegraph justifies this contention by reference to the requirement in Article 10(2) that the restriction on the exercise of the right to freedom of expression must be limited to that which is necessary in a democratic society. It submits that that limitation cannot be satisfied by the provisions of the legislation which imposes the restriction, that is CDPA. It contends that in every case all the individual facts must be considered to ascertain whether the restriction on the right to freedom of expression imposed by the CDPA is necessary in a democratic society notwithstanding that the facts do not bring the case within any of the statutory exceptions or defences. In that connection it relies on the decisions of the European Court of Human Rights in Jersild v Denmark (1994) 19 EHRR 1, Goodwin v UK (1996) 22 EHRR 123, Fressoz and Roire v France (1999) 5 BHRC 654 and News Verlags Gmbh v Austria (11th January 2000).

12. I do not accept this argument. I was initially doubtful whether claims for copyright infringement involved the right to freedom of expression, as provided for by Article 10, at all. Counsel for the Claimant did not contend that Article 10 was irrelevant to his claim for copyright infringement and on further reflection I am satisfied that he was right not to do so. Copyright does not protect ideas, only the material form in which they are expressed. It is therefore a restriction on the right to freedom of expression to inhibit another from copying the method of expression used by the copyright owner even though there may be open to him a host of other methods of expression of the same idea. It must follow that intellectual property rights in general and copyright in particular constitute a restriction on the exercise of the right to freedom of expression. Thus Article 10 is engaged.

13. It does not follow that because Article 10 is engaged the facts of each case have to be considered to determine whether the restriction imposed by the law of copyright goes further than what is necessary in a democratic society. Article 10(2) recognises that the exercise of the right to freedom of expression carries with it duties and responsibilities. Thus restrictions on the exercise of the right are permissible if they are (1) prescribed by law, (2) for the protection of rights of others and (3) are necessary in a democratic society. The Sunday Telegraph accepts that the provisions of CDPA satisfy requirements (1) and (2). But inherent in the argument for the Sunday Telegraph is the submission that the provisions of CDPA are incapable by themselves and without more of satisfying requirement (3). Indeed it was submitted in terms by counsel for the Sunday Telegraph that in every case the court should examine whether on the facts of that case it was necessary in a democratic society to provide for exceptions, exemptions and defences over and above those permitted by the legislation governing that species of intellectual property, however extensive they might be. If this is right then intellectual property litigation will burgeon out of control and the rights which the legislation apparently confers will be of no practical use except to those able and willing to litigate in all cases.

14. I do not accept the submission. In my view the provisions of the Act alone can and do satisfy the third requirement of Article 10(2) as well. The needs of a democratic society include the recognition and protection of private property. This is confirmed by the provisions of Article 1 to the First Protocol. Such property includes copyright. As Aldous LJ observed in Hyde Park Residence Ltd v Yelland [2000] 3 WLR 215, 232E CDPA gives effect to the United Kingdom's obligations under the Berne Conventions of 1886 and 1971 as well as pursuant to various EC Directives. Article 9 of the Berne Convention 1971 left it to the countries of the Union thereby established to provide by their own domestic legislation for the circumstances in which a copyright work might be reproduced by others. The terms of s.30 CDPA were evidently intended to implement the latitude afforded by Article 10 of the Berne Convention 1971. Likewise the United Kingdom is entitled to a margin of appreciation in giving effect to the provisions of Article 10 of ECHR in the field of intellectual property. Handyside v UK (1976) 1 EHRR 737. I can see no reason why the provisions of CDPA should not be sufficient to give effect to the Convention right subject only to such restrictions as are permitted by Article 10(2). See generally "Limitations found outside Copyright Law" by Lucie Guibault published by the Association Littéraire et Artistique Internationale in connection with the ALAI Study Days at Cambridge University from 14th to 17th September 1998.

15. It is unnecessary to describe the provisions of CDPA in any detail. It is sufficient to note that in paragraph 20.11 of Laddie on The Modern Law on Copyright and Designs 3rd Edition the authors identify 42 circumstances in which copying does not constitute an actionable infringement. Accordingly each of the 42 recognises and confirms the right to freedom of expression notwithstanding that copyright subsists in the work being copied. It is not suggested that the provisions of CDPA are any more restrictive of the right of freedom of expression than those of the copyright legislation of all or most other democratic states. I can see no reason why the court should travel outside the provisions of the CDPA and recognise on the facts of particular cases further or other exceptions to the restrictions on the exercise of the right to freedom of expression constituted by the CDPA. Nor, in my view, do any of the decisions of the European Court of Human Rights on which the Sunday Telegraph relied suggest otherwise.

16. In Jersild v Denmark (1994) 19 EHRR 1 the court was concerned with the conviction of a journalist for aiding and abetting the making of insulting remarks by the persons he interviewed for a TV programme. The court considered whether the conviction was necessary. It held that it was not so that the conviction violated Article 10. The court reiterated that

"freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep the bounds set, inter alia, in the interest of "the protection of the reputation and rights of others", it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog". Although formulated primarily with regard to the print media, these principles doubtless apply also the audio-visual media.

In considering the "duties and responsibilities" of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audio-visual media have often a much more immediate and powerful effect than the print media. The audio-visual media have means of conveying through images meanings which the print media are not able to impart.

At the same time, the methods of objectives and balanced reporting may very considerably, depending among other things on the media in question. It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the Court recalls that Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed."

I have quoted that passage at length because of the reliance placed on it by counsel for the Sunday Telegraph. It does not, in my view, suggest that it is impermissible when considering whether the restriction on the right to freedom of expression constituted by the law of copyright goes further than is necessary in a democratic society to have regard only to the terms of that legislation.

17. In Goodwin v UK (1996) 22 EHRR 123 the court was concerned with an order on a journalist to disclose his source. Such an order was permitted by s.10 Contempt of Court Act 1981 if it was in the interests of justice. The courts in England concluded that it was. The European Court of Human Rights decided the order was, nevertheless, not necessary in a democratic society. The court said in paragraph 40:

"As a matter of general principle, the "necessity" for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess whether there is a "pressing social need" for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining as must be done under Article 10(2), whether the restriction was proportionate to the legitimate aim pursued. In sum, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court.

The Court's task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the "interference" complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are "relevant and sufficient"."

Again the court does not suggest that it cannot be enough when deciding whether the restriction is necessary in a democratic society to consider the terms of the legislation alone, more particularly where the legislation in question sets out the terms on which and the limitations subject to which a right of property subsists.

18. Fressoz and Roire v France (1999) 5 BHRC 654 concerned the publication of details contained in an individual's tax return. The publisher was convicted of an offence. The court concluded that the conviction was in the unusual circumstances of that case an unnecessary restriction on the right to freedom of expression. The case was not concerned with any copyright issue. In News Verlags Gmbh v Austria (11th January 2000) it was considered that the injunction restraining the publication of the photograph of a criminal constituted a violation of Article 10. Again there was no copyright issue. Thus these cases did not touch on the problem either.

19. Counsel for the Claimant relied on the provisions of Article 1 of the First Protocol. He suggested that if the principle was as wide as the Sunday Telegraph contended then the provisions of Article 10 would be used to deprive a copyright owner of his possessions without compensation. In my view deprivation without compensation would not be involved. But in any event it is not the right conferred by Article 1 of the First Protocol which is in point. The right with which I am concerned is the right of a copyright owner to prevent the copying of his work in all but the circumstances prescribed by the relevant legislation.

20. If the Sunday Telegraph makes out the defences conferred or recognised by ss.30 and 171(3) CDPA then it does not need to rely on Article 10. For the reasons I have sought to explain Article 10 cannot be relied on to create defences to the alleged infringement over and above those for which the CDPA provides. The balance between the rights of the owner of the copyright and those of the public has been struck by the legislative organ of the democratic state itself in the legislation it has enacted. There is no room for any further defences outside the code which establishes the particular species of intellectual property in question. In particular it is not open to an infringer to defend the proceedings on the basis that although he cannot make out one or more of the statutory defences nevertheless the relief sought would be more than that which is necessary in a democratic society and therefore contrary to Article 10(2).

21. I turn then to the specific defences for which CDPA provides and on which the Sunday Telegraph relies. The first is fair dealing. S.30 is, so far as material, in these terms:

"30. Criticism, review and news reporting

(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work...

(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work..."

The words omitted deal with the need for a sufficient acknowledgement. It is not disputed that there was one.

22. The Sunday Telegraph relies on both limbs. I will deal with each of them in due course; but first it is necessary to describe the articles appearing on 28th November 1999 in more detail. Their general import is adequately described in the headlines I have already quoted. They set out in some detail what happened, as recorded in the Minute, at the meeting on 21st October 1997. The quotations from the Minute are substantial both in quantity and quality. The points made by the writers are (1) the Minute confirmed that the Prime Minister had seriously intended to form a coalition cabinet by the inclusion of two Liberal Democrat Members of Parliament in place of two Cabinet Ministers who were Labour Members of Parliament notwithstanding the large majority he enjoyed as the result of the election in May 1997; (2) the disclosure contradicted the denials emanating from 10 Downing Street; (3) the co-operation between the Prime Minister and the Claimant went beyond discussing a coalition cabinet and extended to assisting the Liberal Democrats to win the bye-election then pending in Winchester and the Liberal Democrats toning down their criticism of the Government; (4) Had the members of the Labour Party known how far the Prime Minister had gone in the formation of a coalition cabinet their opposition to voting reforms in the wake of the Jenkins Report would have been a full scale revolt.

23. With regard to s.30(1) the Sunday Telegraph contends in paragraph 19 of its defence that

Further or in the alternative, the Defendant published the extracts from the Minutes for the purposes of criticism and review of the ideas, doctrine, philosophy and events in the Minutes and their political implications. The Defendant will refer to the contents of the Articles and, in particular, the ideas, doctrine, philosophy and events reflected in Paragraphs 4, 14 and 18 above.

Paragraph 4 refers to the speculation both before and after the general election concerning closer links between the Labour Party and the Liberal Democrats. Paragraph 14 refers to the degree of co-operation between the Prime Minister and the Claimant as the then leader of the Liberal Democrats. Paragraph 18 covers much the same ground as paragraphs 4 and 14 but includes the role and accuracy of the information derived from the Prime Minister's press office.

24. I accept, of course, that the expression "criticism and review" is of wide import. cf Robert Walker LJ in Pro Sieben Media A.G. v Carlton UK Television Ltd [1999] 1 WLR 605, 614G. Likewise I accept that it is necessary to have regard to the true purpose of the work. Is it "a genuine piece of criticism and review or is it something else, such as an attempt to dress up the infringement of another's copyright in the guise of criticism, and so profit unfairly from another's work". cf Henry LJ in Time Warner v Channel 4 TV [1994] EMLR 1, 14. But what is required is that the copying shall take place as part of and for the purpose of criticising and reviewing the work. The work is the Minute. But the articles are not criticising or reviewing the Minute; they are criticising or reviewing the actions of the Prime Minister and the Claimant in October 1997. It was not necessary for that purpose to copy the Minute at all. In my judgment the articles do not come within s.30(1) because the purpose of copying the work was not its criticism or review.

25. In relation to s.30(2) the Sunday Telegraph contends that the copying of the Minute was for the purpose of reporting current events. In paragraph 18 it alleges that the current events were

18.1 the continuing issue over the degree and nature of actual and planned co-operation between Labour and the Liberal Democrats, and the related matter of the ability of the Liberal Democrats to influence government;

18.2 in particular, the extent to which the Prime Minister was interested in securing co-operation from the Liberal Democrats and his willingness to contemplate the removal of two Labour Cabinet Ministers to make way for two Liberal Democrat appointees, notwithstanding the size of the Labour majority;

18.3 the comments issued by "Downing Street" responding directly to the detailed and specific comments made by the Claimant in his interview "Resigning Issues", and the related continuing saga over the role of and accuracy of information disseminated by the Prime Minister's press office;

18.4 the meeting on 21 October 1997;

18.5 the continuing issue of the way in which Tony Blair operated, independent of his Cabinet and his party, and what influenced his actions;

For the Claimant counsel submitted that the matters referred to paragraphs 18.1, 18.2, 18.3 and 18.5 were not events at all. He also submitted that they and the event specified in paragraph 18.4 were not current. Whilst I accept that there is force in the arguments I do not accept that the Sunday Telegraph has no reasonable prospect of establishing the contrary. But assuming that it can it must also demonstrate that its copying did, in the circumstances, amount to "fair dealing". In this respect the Sunday Telegraph contends in paragraph 20 of its defence that

"the Defendant's dealing was fair because:

20.1 in publishing the Articles, the Defendant was raising matters of legitimate political controversy which in no or no appreciable way competed or will compete with any publication or publications which the Claimant might issue in the future;

20.2 the Claimant himself had already revealed some details of the matters covered in the Articles in his interview for "Resigning Issues";

20.3 it was done to promote public knowledge and public discussion of the actions and intentions of those responsible for governing the country;

20.4 the extracts from the Minutes which were included in the Articles were reasonably necessary and appropriate to include in the Articles for the purposes for which they were written;

20.5 publication was in the public interest, as set out above.

26. It is well recognised that the issue of "fair dealing" is one of fact, degree and impression. Hubbard v Vosper [1972] 2 QB 84. Accordingly it is contended on behalf of the Sunday Telegraph that such an issue can only be resolved at a trial. For the Claimant it is submitted that the relevant facts are not in dispute and that it is clear that the Sunday Telegraph does not have a reasonable prospect of establishing the necessary element of fair dealing. Reliance is placed on paragraph 20.16 of Laddie on The Modern Law on Copyright and Designs 3rd Edition. In that paragraph the authors suggest that the success or failure of the defence depends on three factors (1) whether the alleged fair dealing is in commercial competition with the owner's exploitation of the work, (2) whether the work has already been published or otherwise exposed to the public and (3) the amount and importance of the work which has been taken.

27. In my view each of those factors, which I accept to be the most important ones, points strongly to a conclusion that what the Sunday Telegraph did was not fair dealing. First, it is clear that the publication by the Sunday Telegraph competed with that which the Claimant might otherwise have effected. There is clear evidence that the consideration which the Claimant subsequently obtained for the exploitation of his copyright in the Minute as part of his diary was substantially reduced because of the publication of the articles by the Sunday Telegraph. No doubt there would be cross-examination of the witness from the Times on whether it was the copying of the minute or the disclosure of the information it contained which caused the reduction in the price it was prepared to pay. But that would not diminish the evident commercial competition which exists between publication in the Sunday Telegraph and in any other newspaper the Claimant might have chosen. The assertion in the last part of paragraph 20.1 of the defence is wrong.

28. Second, there is no doubt that the Minute had not previously been published nor exposed to the public. The Claimant had taken great care to limit the number of people who read it and to impose on them obligations of secrecy. Moreover the Sunday Telegraph knew not only that the Minute had not been published, indeed Mr Murphy described it as secret, but that, as the Claimant revealed on the Resigning Issues interview, he was thinking of doing so in the not so distant future. It is not the case that during the interview for Resigning Issues the Claimant had already disclosed the important matters covered in the articles. Had he done so the Sunday Telegraph could not credibly have used the headlines it did. The assertion in paragraph 20.2 is unsustainable.

29. I have not seen an unredacted copy of the Minute. Accordingly I am unable to ascertain the importance of the parts of the Minute which were not copied by the Sunday Telegraph. But I am able to see that what was copied was a substantial proportion of the Minute as a whole and it has not been submitted on behalf of the Sunday Telegraph, whose advisers have seen the whole minute, that the unpublished part contained significant further information. The assertion made in paragraph 20.4 appears to me to be beside the point.

30. For the Sunday Telegraph much emphasis is put on the facts that no money was paid by them for the Minute, that the individual who supplied it to them was not improperly motivated and that the disclosure of the minute was a "political leak" of considerable political significance. In my view none of these points, asserted in one form or another in paragraphs 20.1 and 20.3 converts what I consider to have been unfair dealing into fair dealing. It is not suggested that the Claimant was in any way responsible for the leak. It was plain to the Sunday Telegraph that the Minute was secret and had come into their possession without the knowledge or approval of the Claimant. The facts that the supplier was not motivated by money, did not receive any and that such "political leaks" are not infrequent are not in my judgment sufficient to justify the description of the Sunday Telegraph's dealing with the Minute as fair.

31. For all these reasons I conclude that the fair dealing defence has no reasonable prospect of success and is not a reason for refusing the summary judgment the Claimant seeks. My conclusion in this respect is consistent with the decision of the Court of Appeal in Hyde Park Residence Ltd v Yelland [2000] 3 WLR 215. In that case the Court of Appeal also dealt with the other defence on which the Sunday Telegraph seeks to rely in this case, namely that recognised and preserved by s.171(3) CDPA. That subsection provides that

"Nothing in this part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise."

The majority of the Court of Appeal concluded, in the words of Aldous LJ in paragraph 66, that:

"The circumstances where it is against the policy of the law to use the court's procedure to enforce copyright are, I suspect, not capable of definition. However it must be remembered that copyright is assignable and therefore the circumstances must derive from the work in question, not ownership of the copyright. In my view a court would be entitled to refuse to enforce copyright if the work is: (i) immoral, scandalous or contrary to family life; (ii) injurious to public life, public health and safety or the administration of justice; (iii) incites or encourages others to act in a way referred to in (ii)."

32. Plainly the case for the Sunday Telegraph does not come within that principle. It submits that as the decision of the Court of Appeal was given on 10th February 2000, before the Human Rights Act came into force, it is not binding on me if I come to the conclusion that the right to freedom of expression is one which comes within the rule of law preserved by s.171(3). In that connection the Sunday Telegraph relies on the statement of the responsible Minister made in the House of Lords when what is now s.171(3) was first introduced. But all that the Minister, Lord Beaverbrook, said (Hansard 29th March 1988 col.632) was that the purpose of s.171(3) was to continue the effect of the existing case law without attempting to codify it. Such a statement is unhelpful when the question is what was that effect. The decision of the Court of Appeal concluded that the effect of the existing case law was as set out in paragraph 66 which I have already quoted. As I have already held the Human Rights Act is not a reason for interpreting CDPA any differently. It follows that the decision of the Court of Appeal on the scope of s.171(3) is binding on me. Accordingly I conclude that s.171(3) does not afford any defence to the copyright claim either.

33. I turn then to the other factors relied on by the Sunday Telegraph. The first is s.12 Human Rights Act 1998. It provides, so far as relevant:

12. (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

[(2) and (3)]

(4) 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 respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -

(a) the extent to which -

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

The relief sought, namely injunctions and damages or an account of profits, would affect the exercise of the Convention right to freedom of expression. Similarly the proceedings relate to material, the articles of 28th November 1999, or conduct connected with it of a journalistic nature. Accordingly the whole of subsection (4) applies.

34. It was submitted that the phrase "must have particular regard to" indicates that the court should place extra weight on the matters to which the subsection refers. I do not so read it. Rather it points to the need for the court to consider the matters to which the subsection refers specifically and separately from other relevant considerations. On the facts of this case I do not think that it makes any difference how the phrase is interpreted.

35. There is no doubt that the information contained in the minute, so far as revealed in the articles, has become available to the public. It may be that its publication was in the public interest. I make no finding either way on that point lest it be thought to prejudice any subsequent trial on the breach of confidence issue. But the injunction to restrain breach of copyright will not inhibit the Sunday Telegraph from using the information. It will and should restrain the further copying of the Minute. Insofar as the injunction will restrain the copying of the unpublished parts of the Minute I am unable to form a view as to whether that material is likely to become public knowledge nor whether it would be in the public interest that it should because the unredacted Minute was not put in evidence by either party. Accordingly s.12 does not provide any reason to withhold any of the relief to which the Claimant would be entitled if summary judgment were given in his favour.

36. Another factor relied on is that the claim based on breach of confidence is to proceed to trial in the normal way. It was suggested that this was a compelling reason why the copyright claim should go to trial too. It was submitted that it might prejudice the defence of the Sunday Telegraph to the breach of confidence claim if it was already subject to judgment on the copyright claim. I do not think that this provides any reason, compelling or otherwise, to withhold summary judgment on the copyright claim. Such a judgment would prevent further copying and provide redress for that which has already taken place. Subject to the breach of confidence claim the Sunday Telegraph is entitled to use the information contained in the Minute provided that it does not copy it or any substantial part of it.

37. Finally it was submitted that it was inconvenient to give summary judgment on the copyright claim at this stage because it might give rise to increased costs and the danger of inconsistent judgments if the same person did not hear the breach of confidence claim and the enquiry directed by paragraph 6(A)(2) of the judgment on the copyright claim now sought, namely, whether the Claimant was entitled to what if any, additional damages pursuant to s.97(2) CDPA. I was referred to Tennant v Associated Newspaper Group Ltd [1979] FSR 298 and Conde Nast Publication Ltd v MGN Ltd [1998] FSR 427 for statements as to the normal practice to be followed. But if the Claimant is entitled to summary judgment on his copyright claim because there is no defence with any reasonable prospect of success then he should not be denied it on grounds of convenience said to arise from the practice of the court. In any event I can see no problem; there would be nothing to prevent the judge trying the breach of confidence claim hearing this enquiry as well and on the same evidence. If that is the most convenient course then directions to that effect can be given. The need to deal with the copyright enquiry on a cost and time effective way is not a reason, compelling or otherwise, why the copyright claim should go to trial.

38. For all these reasons, in my judgment, there is no defence to the copyright claim with any reasonable prospect of success and no other compelling reason why the copyright claim should go to trial. Subject to any argument as to the form of relief sought I will make an order in the terms of the minute submitted with this application.