England and Wales High Court (Chancery Division) Decisions

Campbell v Frisbee [2002] EWHC 328 (Ch) (14th March, 2002)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th March 2002

Mr Justice Lightman:

INTRODUCTION

1. 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.
2. 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

3. 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.
4. 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.
5. 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.
6. 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

7. 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.
8. 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.”

9. 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

10. 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.”

11. 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.”

12. 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.
13. 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

14. 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.
15. 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.
16. 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.
17. 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.
18. 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.”

19. 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.”

20. 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.
21. 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.
22. 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

23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.”

29. 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.
30. 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.
31. 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.
32. 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.
33. 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.”

34. 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.”

35. 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.
36. 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.”

37. 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).
38. 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.
39. 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.
40. 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.
41. 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.

42. 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

43. 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.