England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 September 2002

MR JUSTICE GRAY

INTRODUCTION

1. The parties in the action before me are the Jockey Club and Mr Buffham ("the Buffham Action"). But the protagonists on this application are the BBC and the Jockey Club. This somewhat unusual state of affairs arises because the BBC seek variation of an order made by me in the Buffham Action on 31 May 2002.
2. Before coming to the issues with which I am concerned in the present application, I should give a brief account of the history of the Buffham Action.

THE BUFFHAM ACTION

3. Mr Buffham was until 26 September 2001 the Head of Security at the Jockey Club, whose functions include supervising the conduct of horseracing in this country, the licensing of jockeys, trainers and other participants, and ensuring so far as it is able the integrity of racing. The role of the Security Department is principally to protect the integrity of horseracing in Great Britain. Most of its officers were formerly in the Police and are mainly engaged in gathering intelligence and investigating possible breaches of the Rules of Racing or any other criminal offence affecting horseracing. The Department relies upon a number of informants as well as on co-operation on a regular basis with the Police and HM Customs and Excise. As Head of Security Mr Buffham's role was to manage the activities of the Security Department in the gathering of information and intelligence to deter malpractice and to conduct investigations and enquiries as appropriate.
4. The terms on which Mr Buffham and the Jockey Club parted company are contained in a letter from the Jockey Club to Mr Buffham dated 19 September 2001 and countersigned by him. So far as material the terms were as follows: his employment was to terminate on 15 August 2001; he received a payment of £50,000 by way of compensation for the termination of his employment and he entered into the following covenants:

"10. You shall not except as may be required by Law divulge to any person whatsoever or otherwise make use of (and shall use your best endeavours to prevent publication of) any trade secret or any confidential information concerning the business or finances of the Jockey Club or any of its dealings, transactions or affairs or any such confidential information concerning any investigations carried out by the Security Department during your employment with the Jockey Club except in so far as any trade secret or confidential information may have come into the public domain (otherwise than as a result of any breach of any obligation made by you to the Jockey Club)."

Mr Buffham agreed immediately to return to the Jockey Club all documents and other property relating to the business of the Jockey Club. The agreement was expressed to be in full and final settlement of all claims and rights of action.

5. It subsequently transpired that Mr Buffham did not, as he had agreed to do, return to the Jockey Club all its documents. It is now accepted by him that he retained a substantial number of Jockey Club documents dealing with a variety of topics mostly in the racing world. Mr Buffham had also communicated with journalists in relation to Jockey Club matters and disclosed to them information relating to the activities of the Securities Department. It is Mr Buffham's assertion that he was motivated by concern at the scale of corruption within racing and the limited extent to which the problem was being addressed.
6. The Jockey Club became concerned when it became clear that Mr Buffham had been passing on what they considered to be detailed and sensitive information to the media. A particular concern was the risk that the identity of confidential Jockey Club sources would be revealed. Accordingly proceedings were commenced by the Jockey Club against Mr Buffham to enforce the negative covenant which I have quoted earlier.

THE FINAL ORDER

7. Those proceedings were ultimately compromised. By consent an order was made by me on 31 May in the following terms:

"1. The defendant must not without the Claimant's prior written consent do any of the following acts … namely divulging to any person whatsoever or otherwise making use of any trade secret or any confidential information concerning the business or finances of the Jockey Club or any of its dealings, transactions or affairs or any such confidential information concerning any investigations carried out by the Security Department during his employment with the Jockey Club."

There were a number of exceptions but none of them is material. The Order obliged the defendant to serve a witness statement setting out in full any disclosure he had made since 26 September 2001 of information falling within Clause 1 quoted above. Paragraph 4 of the order provided:

"For the avoidance of doubt, any person other than the defendant who is served with or given notice of this judgment may apply to the Court to vary or discharge the injunction set out at 1 above."

The order was agreed to represent a full and final settlement of the proceedings.

8. A copy of that Order was, perfectly properly, served on the BBC. The reason why the Jockey Club took that course was that it had come to their knowledge that one of the journalists with whom Mr Buffham had been communicating was Mr Stephen Scott, who since August 2001 had been employed by the BBC as a producer on its Panorama current affairs programme.

NARRATIVE

9. In his witness statement in support of the present application Mr Scott gives an account of his dealings with Mr Buffham which can be summarised as follows: they first met in 1996 and kept in touch thereafter. Mr Buffham told Mr Scott that he was astonished by the extent of the corruption he had discovered in the horseracing industry and that he was surprised at the lack of enthusiasm on the part of the Jockey Club in tackling it. Mr Buffham told Mr Scott about forthcoming criminal trials which would call into question the integrity of horseracing.
10. Soon after joining Panorama in August 2001 Mr Scott raised the possibility of a programme about the horseracing industry with his Editor. Mr Scott made a number of enquiries. On 17 October 2001 he met Mr Buffham to discuss the proposed programme. Mr Buffham told him that he had retained several files of documents relating to his work for the Jockey Club which he claimed supported charges of corruption within racing and the failure of the Jockey Club to respond adequately. Mr Buffham indicated a willingness to assist in the making of a television programme.
11. The two of them met again in early November 2001, when Mr Scott said that he needed to look at the documents in the possession of Mr Buffham to confirm that they supported the points he was making. Mr Buffham agreed. Mr Scott conducted a detailed review of many, if not all, of the documents retained by Mr Buffham. Mr Buffham did, however, insist that nothing should be done in the course of making the programme that could endanger any confidential informant of the Jockey Club. Mr Scott states that he readily agreed.
12. In due course Mr Buffham was retained as a paid consultant to the programme on terms set out in a letter from the BBC dated 18 February 2002. Shortly afterwards Mr Buffham again permitted Mr Scott to have access to his files.

THE INTENDED PANORAMA PROGRAMME

13. The programme having been formally commissioned by the BBC, the intention is to transmit it at the end of September 2002. Mr Scott asserts that he and other members of the Panorama team have received information from a variety of sources which supports Mr Buffham's claims. The programme is now in an advanced, albeit not final, form. According to Mr Scott, its general point will be to bring to the attention of the public a number of scandals and instances of the corruption endemic in British horseracing during the last decade and to ask why the Jockey Club, the regulatory body of the sport, has allowed them to occur or has responded inadequately to them. He identifies a number of connected strands of which the programme will consist.
14. The BBC wishes to make use for the purposes of the programme of a number of the documents which came into Mr Buffham's possession in the course of his employment by the Jockey Club. In some instances the Jockey Club is prepared to give its consent. But in relation to other documents, conveniently identified in a letter from the BBC dated 23 August 2002 and a schedule annexed to that letter, the Jockey Club is unwilling to agree to the use of all of them. The present dispute relates to the remainder.
15. The Jockey Club rely its opposition to the application of the BBC on lengthy witness statements from its executive director, Mr Christopher Foster, and Mr Jeremy Phipps, the current Director of Security.

CONTENTIONS FOR THE JOCKEY CLUB

16. Mr Foster makes the forensic points that, when he agreed to settle the proceedings brought against him by the Jockey Club, Mr Buffham abandoned the argument based on the public interest in disclosure which had been set out in the skeleton argument served on his behalf. He also points out that, although aware of the proceedings against Mr Buffham, the BBC took no steps to intervene. He makes a number of comments about the wording of the draft Order proposed by the BBC. He does however make it clear that it is not the intention of the Jockey Club to prevent the Panorama team from making a programme about racing and its regulation. He contends that such a programme can be put together without recourse to confidential Jockey Club documents. For such documents to be made available to the public would prevent the Jockey Club from operating as an effective regulator of racing.
17. Mr Foster maintains that the documents include much secret and confidential intelligence information gathered by the Jockey Club from a variety of confidential sources. The trust built up over the years with those sources would be destroyed by their being made public. Disclosure of the intelligence and other information might also prejudice the ability of the Jockey Club to pursue leads and obtain evidence of misconduct. Furthermore Mr Foster asserts that it is inappropriate for the BBC to publicise accusations of criminality or other wrongdoing against those individuals mentioned in the documents against whom disciplinary hearings are pending or contemplated. In his witness statement Mr Foster conducts a detailed analysis of the contents of the documents and their proposed use in the programme. Finally Mr Foster asserts that the BBC has made out no case of failings on the part of the Jockey Club for the BBC to expose in the public interest.
18. The other witness statement relied on by the Jockey Club comes from Mr Buffham's successor as Director of Security, Mr Jeremy Phipps. He expresses particular concern that Mr Scott had contacted Jockey Club informers, whose identity had inferentially been made known to him by Mr Buffham. Disclosure of their identity would place them at serious risk. According to Mr Phipps, this in turn would jeopardise the ability of the Jockey Club to deal with breaches of the Rules of Racing on which the sources were reporting and would deter other potential informants.
19. In paragraph 31 of his witness statement Mr Phipps asserts that the consequences of disclosure of confidential information belonging to the Jockey Club to journalists are considerable: i) the ability of the Jockey Club to maintain the integrity of horseracing is under threat from a former employee breaking his settlement agreement; ii) publication undermines the trust that the Jockey Club has with all individuals connected with the sport; iii) it will severely damage ongoing Security Department operations and iv) it would severely damage the relationships between the Jockey Club and outside agencies in gathering intelligence and investigating possible breaches of the Rules of Racing or any other criminal offence affecting horseracing.

THE EFFECT OF THE FINAL ORDER ON THIRD PARTIES

20. The first question which arises for decision is whether and, if so, on what basis the BBC is affected by the Order of 31 May 2002 to which the BBC was not a party. Somewhat ironically (since it is the BBC which is seeking a variation of the Order), it was the BBC which in its skeleton argument served on the Jockey Club on the eve of the present application advanced the contention that the Order had no such effect. Mr Mark Warby QC for the Jockey Club, who was obliged to deal with the point at short notice, contends that the BBC, having notice of the Order against Mr Buffham, would be guilty of contempt of court if it were to perform an act which undermined the purpose of the Order. In support of that contention he relies on what he described in his skeleton argument as the well-known Spycatcher doctrine: see AG v. Times Newspapers Ltd (1992) 1 AC 191. Mr Warby goes further and submits that, the Order being a final one, the Court must make a conclusive, rather than merely provisional, judgment on whether the use and disclosure proposed to be made by the BBC is legitimate.
21. Mr Richard Spearman QC for the BBC argues that the so-called Spycatcher doctrine applies only to interlocutory injunctions and so has no application in the circumstances of the present case. He draws attention to the comment made by Sir Nicolas Browne-Wilkinson VC in AG v. Newspaper Publishing plc (1988) 1CH333 at 347-348. He relies also on the analysis of the Spycatcher principle by Lord Phillips MR in AG v. Punch Ltd (2001) QB1028 at paragraphs 39-88.
22. Mr Warby answers that the Spycatcher principle applies only in confidence cases, as is clear from the comments made in the Court of Appeal about its applicability in defamation cases. He says that a confidence claim is unique in that publicity accorded to the information sought to be protected will destroy the subject matter of the claim. He submits that it would be paradoxical if the Court were to in effect enforce interlocutory injunctions against third parties but to decline to do so in the case of final injunctions. In such circumstances the claimant would be worse off after establishing his substantive right in confidence at a trial. Mr Warby further points out that the consequence of a conclusion that final injunctions in confidence do not bind third parties would be that claimants would be obliged to sue not only the primary defendant (i.e. the employee who retains his employer's documents) but also any recipient of the information contained in such documents who may be intending to publish that information. So, submits Mr Warby, the Court should be prepared to treat a final injunction in confidence as binding on any third party who proposes to negate the purpose of the injunction (i.e. preserving the confidentiality of the information) by publishing it.
23. This question appears to me to be an important one upon which there is no binding authority. It is most unfortunate that it has to be decided on an interlocutory application with a necessarily limited time span for consideration. But I must set out my conclusions. In my view the Spycatcher principle does apply to interlocutory injunctions and not to final injunctions. The juridical basis on which a third party may be affected by an Order made in proceedings to which he is not a party lies in contempt. The underlying principle that if a person, with knowledge of an Order of the Court, does some act which has the effect of interfering with or wholly undermining the manifest purpose of such an Order then he will be guilty of contempt even though the Order was not made against him. The essence of the contempt consists in the interference by the third party with the course of justice in the proceedings in which the Order was made.
24. It is true, as Lord Phillips MR pointed out in AG v. Punch that much of the reasoning of the House of Lords in Spycatcher applies as much to final injunctions as it does to interlocutory judgments. Moreover several members of the House made reference to decided cases involving final injunctions. But it is to be noted that the conclusions at which four members of the House arrived was that the contempt consisted of interfering with pending proceedings. Having analysed the reasoning of the House, Lord Phillips MR accepted that some of the reasoning might appear to support the principle that any third party who, with knowledge of an injunction, intentionally destroys the claimant's right thereby interferes with the ends of justice and commits a contempt of court. On the face of it that principle would be wide enough to embrace the conduct of a third party who destroys the right of a claimant enshrined in a final injunction. But Lord Phillips said:

"That principle, however, would run foul of the established principle of English law that an injunction does not bind a third party, a principle acknowledged both by the Court of Appeal and the House of Lords in the Spycatcher contempt cases … For this reason the House of Lords cannot support a principle of that width."

25. Lord Phillips went on to say:

"87. I have some difficulty with the reliance placed by the House of Lords on cases where contempt was established in relation to final Orders. Notwithstanding these problems I have reached the following conclusions in relation to the basis of the House of Lords' finding that contempt of court was established in Attorney General v. Times Newspapers Ltd (1992) 1 AC 191: (a) intentional interference with the manner in which a Judge is conducting a trial can amount to contempt of court; (b) when in the course of a trial a Judge makes an Order with the purpose of furthering some aspect of the conduct of the trial, a third party who, with knowledge of that purpose, intentionally acts in such a way as to defeat that purpose can be in contempt of court; and (c) when a Claimant brings an action to preserve an alleged right of confidentiality in information and the court makes an Order that the information is not to be published pending trial, the purpose of the order is to protect the confidentiality of the information pending trial. A third party who, with knowledge of the Order, publishes the information and thereby destroys its confidentiality will commit a contempt of court. The contempt is committed not because the third party is in breach of the Order - the Order does not bind the third party. The contempt is committed because the purpose of the Judge in making the Order is intentionally frustrated with the consequence that the conduct of the trial is disrupted.

88. The speeches of the House of Lords make it plain that the offence lies not simply in the commission of the act prohibited by the Order, but in the effect that the act has of interfering with the conduct of the trial".

26. Although the passages which I have cited from AG v. Punch are strictly obiter, I respectfully accept that the Spycatcher principle is limited to interlocutory injunctions. There is nothing in principle or in any decided case which requires me to extend the principle to final injunctions. I accept that a claimant in a confidence action enjoys, as Mr Spearman put it, a windfall consisting in protection pending trial against invasion of his right of confidentiality by third parties. But the reason for the existence of that windfall is the need for the Court to be able to enforce, through the machinery of the law of contempt, the object for which the interlocutory injunction was granted and not to protect the confidential information as such. It appears to me to be implicit in Mr Warby's argument that, at the end of a trial in a confidence action, the claimant would be entitled to invite the Court to make an injunction contra mundum. Such injunctions can be granted, at least in the exercise of the protective jurisdiction of the Court: see Venables v. Newsgroup Newspapers Ltd (2001) Fam 430. But the injunction in the present case was inter partes. I do not accept that Mr Warby's suggestion is well-founded in law.
27. It follows that the BBC is not in my judgment bound or affected by the Order of 31 May 2002; nor would the BBC be at risk of committing contempt if it were to proceed with the publication of the proposed Panorama programme. But this would be an unsatisfactory basis upon which to dispose of the present application, because it would be open to the Jockey Club to commence a separate action against the BBC upon whom it would be said a duty of confidence lay in relation to the Jockey Club documents retained by Mr Buffham. I should therefore consider the application on its merits.

THE INFORMATION SOUGHT TO BE PROTECTED

28. The documents and the information contained in them are analysed in the witness statement of Mr Foster. Of the twenty categories of documents eight comprise Jockey Club intelligence reports, most of them marked Secret or Confidential, and containing information said to be derived from confidential sources concerning either alleged links between racing and various criminal elements or concerning links between racing and various criminal elements or concerning links between racing and Chinese gambling groups in Hong Kong and the UK. Two further categories are internal reports summarising intelligence received or the state of the views of the Jockey Club about corruption. One item consists of Police interviews allegedly supplied in confidence to the Jockey Club. Two others are a report sent to the Jockey Club in confidence from Hong Kong and memoranda compiled by the Jockey Club and by the Police about a combined operation. Three further categories consist of correspondence with a potential witness in support of disciplinary proceedings; a number of documents issued by the Jockey Club to the gambling Review Body dealing amongst other things with the knowledge of the Jockey Club of the corruption in racing.

APPROACH TO APPLICATIONS FOR INJUCTIVE RELIEF

29. Before coming to the parties' detailed arguments on the public interest defence, it is necessary to consider how in principle the Court should at the interlocutory stage approach an issue of the present kind where one party asserts a right of confidence and the other seeks to justify disclosure by reference to the public interest. As Lord Keith pointed out in Spycatcher, there is a public interest in the maintenance of confidence. So too is there a public interest in upholding the right to freedom of expression protected by Article 10 of the ECHR.
30. Mr Spearman in his skeleton argument recites a large number of recent authorities, both domestic and from Strasbourg, emphasising the importance to be attached to free speech in a democratic society. The authorities are well known and no useful purpose would be served by my enumerating them here. It has also to be borne in mind, as Mr Warby rightly points out, that the right to freedom of expression is not an unqualified one: by Article 10(2) it is expressly subject to such restrictions as are prescribed by law and necessary in a democratic society for preventing the disclosure of information received in confidence.
31. It is necessary to have in mind the provisions of the Human Rights Act 1998 and in particular Section 12 which 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. Section 12(4) provides:

"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 ... 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".

32. Guidance has been given by the Court of Appeal as to the correct approach of the Court at the interlocutory stage to an issue such as arises in the present case. In Douglas v. Hello! Ltd (2001) QB 967 Keene LJ, with whom Brooke LJ and Sedley LJ agreed, said at paragraphs 145-153 that, in cases concerning the right to publish, the balance of convenience is not the correct approach; that section 12(3) of the HRA provides that relief affecting the exercise of the right to freedom of expression should not be granted to restrain publication before trial unless the Court is satisfied that the Applicant is likely to establish that publication should not be allowed; that that subsection requires the Court to look at the merits of the case and that it should be satisfied, before granting injunctive relief, that the balance between the competing rights is likely to be struck in favour of the Applicant and that, even if such likelihood is established there remains a residual discretion in the Court.
33. In A. v. B. plc (2002) 3WLR542 at paragraph 11, the Court of Appeal gave further guidance: the fact that, if the injunction is not granted, the Claimant may be deprived of the only remedy which is of any value is a relevant consideration but that has to be weighed against the defendant's rights of freedom of expression; the fact that if the injunction is granted it will interfere with the freedom of expression of others and in particular the freedom of the press is a matter of particular importance and any interference with the press has to be justified and the existence of a public interest in publication strengthens the case for not granting an injunction.

BURDEN OF PROOF

34. Such being the general approach to applications involving freedom of expression, the question arises whether the approach of the Court should be different where, as here, it is a third party contending that it should be subject to restraint in terms which differ from an injunction already granted by the Court. Mr Warby submits that, since it is the BBC which contends that it should be subject to restraint in different terms, the burden is on it. He points out that the application is in effect for a final Order. Section 12(3) of the Human Rights Act cannot apply because there is no trial pending. Moreover the BBC has on the evidence been closely involved with Mr Buffham for some time and knew where the documents he provided had come from.
35. In my judgment the approach suggested on behalf of the Jockey Club insufficiently recognises the fact that the right to freedom of expression is engaged. Whilst I accept that section 12(3) is not in point, in my view section 12(4) does apply. The observation of the Court of Appeal in A. v. B. plc that any restriction of the right to freedom of expression requires justification holds good in my judgment in the unusual circumstances of the present application. I see no reason why the BBC should be worse off, in terms of the onus upon it, than it would have been if it had been joined by the Jockey Club in the proceedings against Mr Buffham in the first instance.
36. Accordingly I approach the application on the footing that it is for the Jockey Club to show a proper case for the remaining injunction against the BBC.

THE CONFIDENTIALITY OF THE INFORMATION

37. The first question which arises is whether the Jockey Club can show that the information sought to be protected has "the necessary quality of confidence" about it: see Coco v. A N Clark (Engineers) Ltd (1969) RPC 41. There was some discussion in the course of argument what this entails. The position adopted by the Jockey Club in relation to the information in question is that it was received by Mr Buffham in the course of his employment with the consequence that he was under a duty of confidence towards his employer in relation to it: see Ashworth Hospital Authority v. MGN Ltd (2001) 1 WLR 515 at paragraphs 51-53. A third party who comes by such information on notice of its confidential character owes similar duties. Mr Warby seeks to draw an analogy between the secret information about intelligence operations in the present case and the information with which the Spycatcher case was concerned.
38. Mr Spearman for the BBC accepts the general principle, enunciated by Lord Goff in Spycatcher (1990) 1 AC 109 at 281 that a third party may be under a duty of confidence where he has notice, or is held to have agreed, that the information is confidential. But he contends, in reliance on Faccenda Chickens Ltd v. Fowler (1987) 1 CH 117 and Thomas v. Mould (1968) 2 QB 913 that the information is not confidential simply because it is contained in documents disclosed to an employee by his employer and in any event in the present case the Jockey Club has not condescended to define what information qualifies as confidential.
39. I was referred to R. v. Department of Health Ex Parte Informatics Ltd (2001) QB 424 and LRT v. Mayor of London (2001) EWCA CIV 1491. Perhaps the most helpful summary of the circumstances where a duty of confidence will arise is to be found in the judgment of Bingham LJ in AG v. Guardian Newspapers Ltd (2) (1990) 1 AC 109 where he said at pp215-6:

"The cases show that the duty of confidence does not depend upon any contract, express or implied, between the parties. If it did, it would follow on ordinary principles that strangers to the contract would not be bound. But the duty 'depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it ... the jurisdiction is based not so much on property or on contract as on the duty to be of good faith ... it accordingly 'affects the conscience of the person who receives the information with knowledge that it has originally been communicated in confidence'...".

40. That is the approach which I adopt on the present application.
41. I must consider the documents in relation to which the Jockey Club assert a right of confidence. As I have earlier set out, Mr Foster describes them generically and, in my view, accurately in his witness statement. They are helpfully listed in Exhibit 4 to the witness statement of Mr Scott, where by way of commentary, the use which it is intended to make of the document in the Panorama programme is summarised against each of the documents. It would extend this judgment unnecessarily if I were to list them all. Document 1 is a catalogue of information, apparently received by the Police, about an individual who is alleged to be responsible for a large measure of the corruption within racing. Document 2 is another Police document, evidently provided to the Jockey Club, consisting in an interview with an Irish jockey. Documents 3 and 4 record intelligence about numerous jockeys and others suspected by the Jockey Club of involvement in corruption. Documents 6 and 7 consist respectively in a Jockey Club Security Department intelligence/information report about a particular jockey and a summary, marked "Secret", prepared about him in order to decide whether he should be charged. Document 8 is a collection of documents about another individual, employed by a firm of bookmakers, who is also the subject of investigation by the Security Department. Documents 11, 12 and 13 are documents provided to the Jockey Club relating to a particular race which was suspected to have been fixed. Document 15 is a memorandum prepared by Mr Buffham, headed "Confidential (NFD)" recording information received from the Hong Kong Jockey Club about the refusal of a licence to ride in the case of two jockeys. Document 16, also headed "Secret" is a Jockey Club memorandum about a Police operation investigating the connection between jockeys and members of Chinese criminal gangs or "triads" operating in the UK. Document 18, also headed "Secret", is another memorandum on the related topic of contacts between British jockeys and triad members in Hong Kong. In addition to the documents set out in Exhibit 4 the Jockey Club claim confidence in respect of a Police memorandum dated 05 September 2000 which deals with the infiltration of racing by Chinese triads and the Police operation established to deal with it.
42. The position initially adopted by Mr Spearman was that none of these documents had the necessary quality of confidence. He was critical of the Jockey Club for not spelling out the basis on which the claim to confidence was made and argued that a bald assertion to that effect was insufficient. In the course of argument, however, Mr Spearman was constrained to concede the confidentiality of some at least of the documents (e.g. 6, 16 and 18).
43. For his part Mr Warby conceded that several of the documents have come into the public domain in the media (otherwise than by the BBC) or elsewhere. Inaccessibility being at least a necessary, if not a sufficient, condition of confidentiality, he agrees that no relief can be available in respect of them. The documents in question are numbers 2, 9, and 10 (save for the Jockey Club submission to the Gambling Review Body) and 14. In relation to Document 14 I make clear that I consider that the words concealed by the superimposed stamp are also now within the public domain. I need say no more about these documents.
44. But Mr Warby asserts that, essentially for the reasons given by Mr Foster in his witness statement, the remainder are by their nature self-evidently confidential. I accept that the documents comprising intelligence about suspected corruption communicated to the Jockey Club or the subject of internal memoranda or reports by the Jockey Club or giving private expression of the view held internally within the Jockey Club about one aspect or another of corruption within racing are confidential. The fact that some of them are marked "Secret" or "Confidential" is a pointer in that direction. The nature of the documents would have been apparent to the BBC on receipt of them from Mr Buffham. I further accept that there is force in Mr Warby's argument that it is not open to Mr Spearman to "cherry-pick" from the documents passages which, at least when divorced from their context, may lack the quality of confidence and argue from there that the whole document has not been shown to be confidential. In my judgment the Jockey Club, in its capacity as the authority responsible for preserving the integrity of racing, is, subject always to the public interest, entitled to claim confidence in documents reflecting the state of knowledge or at least suspicion within the Jockey Club as to possible forms of corruption.
45. Accordingly I have come to the conclusion that with one exception the documents set out in Exhibit 4 to the witness statement of Mr Scott, plus the document referred to at C in Exhibit 5, are confidential. The exception relates to Category 10 which comprises documents concerning the Gambling Review Body. As already stated, the only one of these documents in which the Jockey Club claimed confidence, was its Submission to the Review Body. On consideration of the contents of that document, I see no basis for an assertion of its confidentiality.

PUBLIC INTEREST: THE LAW

46. I come finally to what appears to be the crucial issue in this application: whether it is in the public interest that the BBC should be permitted to make use of the documents which I have found to be confidential or, to put it another way, whether there exists a just cause or excuse for the BBC to disclose on national television those parts of the confidential documents which are identified in Exhibit 4 to the witness statement of Mr Scott. There are a substantial number of authorities which are in point, many of them pre-dating the Human Rights Act. Amongst those which have been cited to me are Initial Services Ltd v. Putterill (1968) 1 QB 396; Fraser v. Evans (1969) 1 QB 349; Lion Laboratories v. Evans (1985) QB 526 and Spycatcher (1990) 1 AC 109. I have earlier drawn attention to the guidance given in A. v. B. plc and elsewhere as to the impact of Section 12 of the Human Rights Act in cases where, as here, there is a collision between a right of confidence and the right to freedom of expression. There are a large number of recent cases where the importance, and sometimes the "primacy" of the right of freedom of expression is underlined: see Reynolds v. Times Newspapers Ltd (2001) 2 AC 127; McCartan, Turkington and Breen v. Times Newspapers Ltd (2001) 2 AC 277 per Lord Steyn at 297.
47. In some cases the public interest may justify no more than limited disclosure, for example to the Police or some other regulatory authority. But there is ample authority that there are matters of sufficient general public interest to warrant disclosure by the media: see Grobbelaar v. Newsgroup Newspapers Ltd (2001) 2 All ER 437, at paragraphs 47 and 201. I accept, as did Morland J. in his judgment on an earlier application for injunctive relief in relation to two of the documents with which the present application is concerned, Chandler v. Buffham (2002) EWHC 1426 (QB), that the questions of the integrity and fairness of bookmaking to the betting public; the relationship of bookmakers to trainers and racing stables, and the effectiveness of the Jockey Club's regulatory role over the sport and industry of horseracing, are questions of proper and serious interest and concern to the public and, in particular, to the very many hundreds of thousands of people interested in horseracing, very many of whom will place bets from time to time. The comments of Sir Thomas Bingham MR in R. v. the Disciplinary Committee of the Jockey Club Ex Parte Aga Khan (1993) 1 WLR 909 at 912 and 914 are in point.
48. But the case which I have found most illuminating as to the correct approach is LRT v. Mayor of London (op cit). In that case LRT sought to prevent publication by the Mayor of a report commissioned by accountants concerning the London Underground. Sullivan J. held that it was genuinely in the public interest for a redacted version of the report to be published. He arrived at that conclusion having balanced "the desirability in the public interest of upholding confidentiality agreements and the public interest in freedom of access to information": see paragraph 42 of the Court of Appeal judgment. The Court of Appeal held that the Judge was correct to have conducted such a balancing exercise, even in a case (such as the present) where the information has been disclosed by a former employee of the Claimant. The Court of Appeal expressly declined to consider whether Sullivan J. was right to have held that it was for the Mayor to make out "an exceptional case" to justify publication. Reference was made by Robert Walker LJ at paragraph 39 to the comment made by Simon Brown LJ in Source Informatics at page 800 about "the importance of confining any public interest defence in this area of the law within strict limits – lest ... it becomes 'not so much a rule of law as an invitation to judicial idiosyncrasy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence'". Sedley LJ agreed that the appeal of LRT should be dismissed. He too, having stressed the importance of the right to receive and impart information, he too conducted a balancing exercise by reference to the test of proportionality. He set out in his judgment the various factors applicable in the circumstances of that case which led him to the conclusion that the right to freedom of expression should prevail.
49. It appears to me that the approach adopted in LRT v. Mayor of London broadly corresponds with the way in which Stephenson LJ held in Lion Laboratories Ltd v Evans the conflict between the two competing public interests should be resolved. At 536F he said:

"The Courts will restrain breaches of confidence, and breaches of copyright, unless there is just cause for breaking confidence or infringing copyright. The just cause or excuse with which this is concerned is the public interest in admittedly confidential information. There is confidential information which the public may have a right to receive and others, in particular the Press, now extended to the Media, may have a right and even a duty to publish, even if the information has been unlawfully obtained in flagrant breach of confidence and irrespective of the motive of the informer. The duty of confidence, the public interest in maintaining it, is a restriction on the freedom of the Press which is recognised by our Law, as well as by Article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953); the duty to publish, the countervailing interest of the public in being kept informed of matters which are of real public concern is an inroad on the privacy of confidential matters."

50. He went on at page 538H:

"But to see if there is a serious defence of public interest which may succeed at the trial, we have to look at the evidence and if we decide there is such a defence, to perform a balancing exercise …"

51. The observations of Griffiths LJ in the same case at page 553 were made prior to the passage of the Human Rights Act and have to be considered in the light of the guidance given in A. v. B. plc. As to the references in the speech of Lord Goff in Spycatcher at pages 282-283 to what is "required" in the public interest, I do not consider that he was there addressing the question where the burden of proof lies when it comes to carrying out the balancing exercise.

THE CONCERNS OF THE POLICE

52. Before expressing my conclusion on the issue of public interest, I should mention the concerns expressed by Miss Studd on behalf of the Greater Manchester Police, who have been granted permission to intervene on this application. The Police concerns were in essence that certain passages in the Jockey Club documents upon which the BBC might wish to rely might risk revealing the identity of Police informants. The concern of the Courts to preserve the anonymity of Police informers is well-established. The stance of the police Authority was that the public interest could not override the confidentiality of the identity of Police informants. The BBC have recognised the legitimacy of the concern expressed by the Police. Discussions having taken place, the BBC have agreed not to disclose the information which they had previously sought to disclose from Documents 16 (in part); 17 (in part) and Document 18. Miss Studd is content on behalf of her clients that their concerns have been protected. The concessions properly made by the BBC will have to be reflected in any Order. For the present I need say no more about it.

STRIKING THE BALANCE

53. Reverting to the position as between the Jockey Club and the BBC, I must apply the principles to be derived from the authorities to which I have referred to the circumstances of the present case and endeavour to strike the correct balance. There are a number of factors militating in favour of the maintenance of confidentiality. I accept that there is a public interest in maintaining confidence. I bear in mind the need to limit the ambit of any public interest defence. It is a material factor that the information sought to be protected here has come into the possession of the BBC by reason of a breach of contract on the part of a former employee of the Jockey Club, honourable though he asserts his motives to have been for making the disclosure. I accept that the reasons why the Jockey Club seeks to maintain the privacy of the documents in question are legitimate ones. The Jockey Club conceives it to be its duty to preserve confidence in those documents in order the more effectively to be able to carry out its regulatory and supervisory role. I further accept that there is a genuine concern that disclosure of the documents to the world at large would or might hinder the performance by the Jockey Club of its functions. I bear in mind that much of the information in the documents falls well short of being legally admissible hard evidence of criminality and amounts to no more than intelligence which the Jockey Club considers to be insufficient to justify the commencement of disciplinary proceedings. Besides in a number of cases the Jockey Club has recently taken action.
54. But the question which I have to consider is whether the public interest justifies the publication by the BBC on the Panorama programme of the particular passages from the confidential documents of the Jockey Club which are identified in Exhibit 4 of Mr Scott's witness statement. Mr Warby is understandably concerned that the limited disclosure sought to be justified by the BBC should be reflected in any Order the Court may make. But that is essentially a matter of drafting. A revised draft Order has been prepared which can, if necessary, be subject to argument hereafter.
55. The case for the BBC that disclosure is justified in the public interest runs as follows: the topics with which the Panorama programme is intended to be concerned include the following:

i) relationships between all or any of the following: bookmakers, trainers, racing stables, jockeys and known criminals in the light of evidence given in a number of recent trials;

ii) action taken or not taken by the Jockey Club in relation to corruption and the integrity of racing and the way in which the Jockey Club has exercised or not exercised its powers as the regulator of horseracing in the UK;

iii) the integrity and fairness of racing and bookmaking in the UK and

iv) the effectiveness of the Jockey Club's role as regulator of the sport and industry of horseracing.

56. Mr Spearman stresses that the public interest for which he contends is not restricted to the role of the Jockey Club; nor is it determinative that the documents in question belong to the Jockey Club; what matters is what is revealed by the information contained in them. In paragraph 31 of his witness statement Mr Scott identifies a series of what he describes as "interwoven but identifiable strands containing examples of corruption and an account of what the Jockey Club has done or failed to do". The strands relate to a serious criminal said to be involved in horse doping, race-fixing and the bribing of jockeys; the alleged involvement of various jockeys in a variety of corrupt activities and information concerning relationships between jockeys and trainers on the one hand and bookmakers on the other. It was in the context of information of the latter kind that Morland J. upheld the contention of the BBC that the public interest in freedom of expression outweighed the right of confidence of the claimant bookmaker.

CONCLUSION

57. Doing the best I can to weigh in the balance these competing considerations, I have come to the conclusion that, in relation to those passages from the documents upon which the BBC tends to rely in its forthcoming Panorama programme, the public interest in disclosure outweighs the right of confidence of the Jockey Club. Adopting the test commended by Sedley LJ in LRT v. Mayor of London, I have concluded that this is the "proportional" way in which to balance the competing considerations. I base that conclusion on the following:

i) It appears to me that information revealing the existence or apparent existence of wide-scale corruption within racing is of legitimate concern to a large section of the public who either participate in racing or who follow it or who bet on the results of races. The fact that hard evidence of criminality may be lacking does not negate the legitimacy of this concern.

ii) I accept that some of this information dates back some years, although much of it is more recent. But the BBC have, as is accepted, been prevented from pursuing the subject matter of the programme by a series of Orders made in criminal trials of those accused of corruption in connection with racing. The injunctions were not fully lifted until 14 June 2002. In any case, the information suggests that the problems are continuing ones.

iii) I attach some significance to the fact that the Jockey Club is a public authority in every sense of that term, rather than an individual seeking to protect personal or private information or a company seeking to protect sensitive commercial information. In a proper case the conduct of a public authority may be more readily open to scrutiny by the media even in cases where the scrutiny is based in part on confidential documents belonging to the authority concerned.

iv) I have well in mind the inhibitions to which the Jockey Club feels itself to be subject in cases where the evidence goes no further than to establish, for example, an undesirable association between a jockey and a bookmaker. But it has been made clear on behalf of the BBC that its case is not solely that the Jockey Club failed to take effective action but also that, if effective action cannot be taken, more effective means must be found to preserve the integrity of racing.

v) Whilst in itself by no means sufficient to justify denying the Jockey Club's right of confidence, it is in my judgment a factor to be weighed in the balance that the Jockey Club in June 2002 issued a press release, accompanied by a lengthy appendix, in which the Senior Steward commented on the need to keep in perspective the vulnerability of racing to corruption and expatiated on the steps taken by the Jockey Club to protect racing. At the same time a further document was released explaining why the Jockey Club felt itself unable to take disciplinary proceedings against the individual said to be at the heart of the race fixing and doping scandal. The effect of placing such material in the public domain does in my view result in some loosening of the ties of confidence.

vi) A further and final relevant consideration is that on the evidence (and indeed having regard to manner in which the present application has been mounted) the programme-makers have demonstrated a responsible approach. It is not suggested that the Panorama programme is other than a serious current affairs television programme.

58. For these cumulative reasons I accept that the BBC should not be subject to restraint in the terms of the injunction currently in force against Mr Buffham. The precise form of the modification of restraint against the BBC may have to be the subject of further argument.