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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		3rd July 2003

MR. JUSTICE JACKSON:

1. This judgment is in seven parts, namely: Part 1, introduction; Part 2, the facts; Part 3, the present proceedings; Part 4, who owns the working diaries; Part 5, the claim for an injunction; Part 6, the claim for damages; Part 7, conclusion.

PART 1 - INTRODUCTION

2. This is a claim for breach of confidence. The principal remedy which the claimant seeks is an injunction to restrain future breaches of confidence. She also seeks delivery up of confidential material and damages for past breach of confidence. She makes it plain in her third witness statement that the claim for damages is the least important part of her claim.
3. The principal evidence at the trial was given by the two parties. The only other live evidence came from Mr. Zahawi, who gave very brief evidence about two telephone calls. The arguments of counsel have ranged widely over the law of confidentiality, as it has evolved since the Human Rights Act 1988 came into force. I am grateful to counsel on both sides for their helpful submissions.
4. Before dealing with the issues in this case, I must outline the facts.

PART 2 - THE FACTS

5. From June 1988 until November 2001 the claimant employed the defendant as her secretary and personal assistant. At all material times the claimant has lived at and worked from the Old Vicarage, Grantchester, Cambridge. The claimant is the wife of a well known writer and former politician, Lord Archer. The claimant is also a well known person in her own right. She was for many years a lecturer in chemistry at Cambridge University. She is the author or co-author of scientific books and articles. She holds or has held a large number of senior positions. These include, for example, a number of non-executive directorships, various university positions and membership of numerous boards and councils.
6. The claimant's letter of engagement to the defendant date 19th May 1988 included the following passage:

"As you have seen, my life and work have quite a number of different strands and what I badly need is more time for my scientific work. Therefore I hope to delegate to you, as you learn your way around, increasing responsibility. Your duties will include handling my mail in consultation with me, devising and maintaining an improved filing system, dealing with the telephone in as far as you can, and undertaking administrative household matters if they arise. When I am away, I would also like you to take responsibility for seeing that Glen Pettit, our housekeeper, and Richard Overy, our gardener, have what they need to do their jobs efficiently, and that someone attends to the cats regularly.

I need hardly to add that some of my work is confidential in nature and that I rely absolutely on your discretion in handling and dealing with the associated paperwork and related matters. In particular, Anglia Television and Robert Fraser papers sometimes contain commercially sensitive information which must not be discussed with or disclosed to a third person - not even a spouse. Moreover, as I am sure you appreciate, discretion is often needed in dealing with correspondence and telephone calls from the media and members of the public, and vigilance is needed at all times in dealing with household security."

7. For many years the claimant and the defendant had an excellent working relationship. Indeed, in 1996 the defendant was one of the candidates in the competition for PA of the year. She achieved second place out of all the contestants. In support of the defendant's candidacy in that competition, the claimant wrote as follows:

"Jane has been with me for eight years, during which time she has handled all my business and several personal matters with great skill, dedication and professionalism. I would be lost without her."

The claimant made similar comments about the defendant on other occasions.

8. In July 1996 the claimant and her husband held a party to celebrate their 30th wedding anniversary. The defendant was heavily involved in the arrangements. She and her then partner, Mr. Powling, attended the party as guests. Unfortunately, the defendant provided to Mr. Powling a list of the names and addresses of all the guests. Mr. Powling subsequently approached some of them to solicit business. The claimant was rightly indignant. The defendant was most contrite. The cause of this lapse appears to have been naivety on the part of the defendant and conduct by Mr. Powling which went much further than expected. In cross- examination about this incident the defendant said that she made a ridiculous error of judgment, that the claimant was rightly concerned and so was she. The defendant offered her immediate resignation but the claimant did not accept it. The claimant did, however, write a letter to the defendant on 13th August saying:

"I have written separately to Peter, expressing our indignation that our private party, at which he was a guest, should have been used by him to solicit new business. The point that concerns you, which we have already discussed, is that some of the addresses which you passed to Peter are highly sensitive and confidential. They should not have been divulged to him, and certainly not without reference to me.

Be assured that I do recognise and value your discretion, which is why this lapse and its consequences have been all the more unexpected and unwelcome."

In cross-examination the defendant was asked about the last paragraph. She noted the reference to her discretion. She added that this was why she was so upset about what she had done.

9. It appears to me that both parties dealt with this unfortunate lapse in an appropriate and constructive manner. This enabled their working relationship to continue to run smoothly at least for some years.
10. At the end of the decade the stresses upon the claimant increased, since her husband was accused of perjury in an earlier libel case and was forced to withdraw from political life. This led to increased media interest in the Archer family. In a letter to the defendant dated 22nd December 2000 the claimant dealt with a number of matters concerning the defendant's employment. She also included the following paragraph about confidentiality:

"I expect to become the target of further unwelcome media attention next year, and I hope this will not be disruptive to the household. Should you receive any overtures from the press, please inform me immediately. My privacy is important to me, and I would like to acknowledge and thank you for the confidentiality that you have maintained. Confidentiality law is complex and has recently changed to strengthen an individual's right to privacy, and also an employee's obligation to maintain confidentiality both during and after the period of employment in respect of all paper and electronic records held by or generated on behalf of their employer, as well as any knowledge of the employer's domestic and personal affairs."

11. In her response, dated 3rd January 2001, the defendant made a number of complaints about her terms of employment and argued that Alison Prince, Lord Archer's PA in London, was receiving preferential treatment. In relation to the matter of confidentiality, the defendant wrote as follows:

"You mention confidentiality, yet do not rate my loyalty as highly as Alison's, despite the fact that I have been employed for considerably longer than her. This partiality, particularly in the past couple of years when media attention focused in so closely, is disappointing."

12. In her evidence the defendant said that she well understood the significance of the paragraph in the claimant's letter concerning confidentiality. Indeed, in conversations at around that time the claimant may well have stressed the need for confidentiality, but there was no need for her to do this. The defendant said in evidence that she had no quarrel with the claimant's concerns about confidentiality at that time.
13. On 19th February 2001 the claimant and the defendant had a meeting to discuss a number of matters arising out of their recent exchange of correspondence. At no stage in this meeting did the defendant take any issue with what the claimant had said in her letter about confidentiality.
14. In spring 2001 issues arose concerning the defendant's sending of e-mails from the claimant's home. This led to a disciplinary meeting on 27th April, after which the claimant sent to the defendant a formal written warning. On 27th May Lord Archer's trial for perjury commenced at the Central Criminal Court in London. On 30th May, unknown to the claimant, the defendant approached the police and provided a witness statement in support of the prosecution. On 1st June the claimant learned of this development. She spoke to the defendant and then she wrote to the defendant as follows:

"I am writing to confirm our conversation earlier today.

I understand that you have given a statement to the police in connection with the trial currently underway involving my husband. I stressed to you that this was quite proper for you to do. Of course, you must co operate with the police fully to assist them in their investigations and I would in no way seek to criticise your actions in this respect.

However, I am extremely conscious of the fact that you may be called as a prosecution witness during the trial. I imagine that this will cause considerable stress for both you and me whilst the trial is ongoing. I have not read your statement, but I understand that it refers to the fact that you already feel under stress from your job at present.

Accordingly, I explained that I think it would be better for both you and me if you do not work at the house for the duration of the trial. Our working relationship is such that I think it would be unfair on both of us to try and carry on as normal. I am grateful that you were able to agree this with me. As I said, I am very happy for you to do some work for me from home once your computer is mended or indeed to do some work which doesn't involve the computer. However, I am equally happy for you to take a complete break. I would stress that you will of course receive your full pay during the period of absence, regardless of how long the trial goes on, and your entitlement to take your usual holiday will not be affected."

15. In early July the claimant received hearsay information to the effect that the defendant was planning to sell her story to the press and that it was with this in mind that the defendant had given a statement to the prosecution in Lord Archer's trial. On 8th July the claimant visited the defendant at home and put this allegation to her. The defendant said in evidence that there was not a shred of truth in this allegation. Indeed, she was astounded by the allegation being made. She formed the view that the claimant was trying to get rid of her. It is not necessary for present purposes for me to go into these matters. Suffice it to say that during this period there was a further and marked deterioration in the relationship between the claimant and the defendant.
16. Both parties consulted solicitors. There were discussions about the possible termination of the defendant's employment and the terms of such termination.
17. It was during this period, according to the defendant's evidence, that she first considered the possibility of selling her story to the press. On 19th July 2001, Lord Archer's criminal trial ended. He was convicted by the jury and sentenced by Potts J. to a term of four years' imprisonment.
18. On 21st August the defendant returned to work at the Old Vicarage. The claimant asked the defendant to sign a confidentiality agreement upon her return, but the defendant refused to do this. As a result of this refusal, the defendant no longer had the full and unfettered access to the claimant's home that she had previously enjoyed. The defendant felt aggrieved that she had been singled out for less favourable treatment than other staff. The claimant was disappointed by the defendant's rejection of the confidentiality agreement.
19. Between August and October 2001 the defendant received various approaches from Paul Henderson of the Mail on Sunday who wished to buy her story. The defendant rejected these approaches. On 10th October Mr. Henderson followed up his various approaches with a written undertaking of confidentiality. As explained in para. 34 of her witness statement, the defendant had not at this stage given Mr. Henderson any encouragement.
20. In November 2001, in circumstances which have been much disputed between the parties, the defendant's employment as PA came to an end. The history of these events has been explored in great detail by the Employment Tribunal at Bury St.Edmunds. It is unnecessary for me to cover the same ground in this judgment. The Employment Tribunal found, and I accept, that the principal reason for the defendant's dismissal was her refusal to sign the proposed confidentiality agreement The Employment Tribunal also found that this dismissal was fair.
21. Upon the termination of the defendant's employment, the claimant sought the return of all her property. A controversy then arose as to whether or not a set of Filofax diaries which the defendant had maintained from 1988 to 2001 were part of the claimant's property. This issue was debated at length in correspondence between the parties' solicitors. Ultimately, the disputed diaries were delivered up to the claimant's solicitors who have held them pending the decision of this court.
22. Following the termination of her employment and whilst the dispute about the diaries was in progress, the defendant entered into serious discussions with the press about the sale of her story. During December 2001, the defendant had discussions with Paul Henderson of the Mail on Sunday. On 6^th December, Associated Newspapers Ltd., who publish the Mail on Sunday sent to the defendant's solicitors a draft agreement. Under this agreement the defendant would provide an exclusive story in return for payment and an indemnity.
23. The defendant had reservations about the proposals of the Mail on Sunday. In mid December 2001 she approached Mr. Maxwell Clifford, a well known public relations consultant. Mr. Clifford introduced the defendant to Robert Kellaway, a reporter for News of the World. On 20th December, Mr. Kellaway, on behalf of the News of the World, signed an undertaking to the effect that nothing would be published without first reaching a financial agreement with the defendant.
24. On 4th January 2002 the defendant sent a 13 page fax to Mr. Kellaway, and sent a copy of that fax to Mr. Clifford's office. This fax outlined the history of the Archer family from 1988 to 2001. The fax is replete with details of events, dates, flight numbers, addresses, telephone numbers and so forth. It is also interspersed with unflattering comments about the claimant and her family.
25. The defendant said in cross-examination, and I accept, that in preparing this fax she drew upon information in the diaries as well as her own recollection. She concentrated in the 13 page fax upon particular individuals and particular events which Mr. Henderson and Mr. Kellaway had previously said were of interest to the press. According to para.37 of the defendant's witness statement, which I accept, the News of the World then lost interest in this matter and no offer was forthcoming from that quarter.
26. Mr. Clifford then introduced the defendant to a female journalist for the Daily Mail. This journalist is referred to as "Y" in the defendant's witness statement. The defendant and Y had a number of discussions with a view to the defendant's exclusive story appearing in the Daily Mail. Negotiations proceeded between Associated Newspapers, who publish the Daily Mail, and the defendant's solicitors, concerning the terms of an agreement in respect of that exclusive story.
27. On Sunday 24th February, an article appeared in the Sunday Mirror about the claimant. The defendant said in evidence, and I accept, that she had not been in communication with any journalist or editor of the Sunday Mirror. The Sunday Mirror article is entitled "Mary's Man". It has a subheading underneath, "She has facelift before trip with special friend". The article goes on to describe various travels and dates of visits, and so forth, made by the claimant. The article gives details of persons whom she accompanied. The article gives details concerning cosmetic surgery which the claimant had undergone including dates, places and so forth. Many parts of the article are closely similar to the 13 page fax which the defendant had sent to Mr. Kellaway and Mr. Clifford on 4th January.
28. The claimant's counsel contends, and I accept, that those similarities cannot be mere coincidence. By one means or another, the contents of the defendant's fax must have come to the attention of the Sunday Mirror and been used by that newspaper in the preparation of its article. In cross-examination the defendant did not seriously resist that conclusion. If further evidence is needed in support of this conclusion, it comes from Mr. Zahawi. He is a friend of the Archer family. On 23rd February 2002, he received a telephone call from Mr. Anderson, the deputy editor of the Mail on Sunday. Mr. Anderson told Mr. Zahawi that Max Clifford was touting around a story about Mary Archer. Max Clifford was working with an ex-employee of Mary Archer. The Sunday Mirror, he said, were trying to get hold of the story. A little later Mr. Anderson rang to say that the News of the World had dropped the story and the Sunday Mirror were going to run a toned down story about a face lift.
29. On and after 24th February, other newspapers followed suit with similar articles. On Tuesday 26th February, that is two days of the Sunday Mirror article, the defendant entered into a written agreement with Associated Newspapers Ltd. for the publication of her story in the Daily Mail in return for a payment of £50,000. In the event, however, the defendant's proposed story never appeared in the Daily Mail. Before the preparation of the Daily Mail article was completed, the claimant had commenced the present proceedings.

PART 3 - THE PRESENT PROCEEDINGS

30. On 8th March 2002 the claimant applied for and obtained an injunction restraining the defendant from disclosing confidential information concerning the claimant or her family to any third party. This injunction was obtained at a hearing when the defendant was not present or represented.
31. On 12th March the claimant issued her claim form in the present action. She claimed an injunction to restrain the defendant from disclosing or causing or permitting to be disclosed to any third parties any confidential information relating to the claimant or any member of her family. She also claimed damages for breach of confidence. On 15th March at a hearing attended by both parties, Stanley Burnton J. continued the injunction previously granted subject to some modifications. At a further hearing on 22nd March that injunction was replaced by a set of undertakings which the defendant gave to the court. Thereafter pleadings were exchanged between the parties and directions were given for trial.
32. On 27th May 2003, the defendant served a notice stating that she was acting in person in place of her former solicitors. The defendant continued to act as a litigant in person until a late stage last week when a firm of solicitors, Messrs. Lyall, and a member of the Bar, Mr. Rambert de Mello, came on to the scene. They are both acting for the defendant on a pro bono basis. They have worked with great industry on the defendant's behalf. Mr. de Mello, despite lack of time for preparation, has presented her case with great skill. I am grateful to both Mr. de Mello and Messrs. Lyall for their assistance to the court on a pro bono basis.
33. The claimant's claim, as it has developed in the pleadings, has three limbs. First, the claimant claims an injunction to restrain future breaches of confidence. Secondly, the claimant claims damages for past breaches of confidence. Thirdly, she seeks delivery up of confidential material belonging to herself.
34. In relation to the first limb of the claimant's claim, the defendant's position has moved substantially from the complete denial which appears in her defence. Indeed, her position has continued to move both in the run-up to and during the course of the present trial. I shall read out now the terms of the injunction which the claimant seeks and I shall then indicate which matters are agreed and which matters are in issue. The claimant seeks an injunction in the following terms:

"IT IS ORDERED THAT:

1. The defendant will not disclose or cause or permit to be disclosed to any third party any information in the following categories (unless such information is already in the public domain other than as a result of a breach of her duty of confidence to the claimant or such disclosure is necessary for the purposes of obtaining legal advice or required by law) :-

(a) details about the claimant's medical condition or medical treatments (including any cosmetic surgery) that she has received;

(b) details about the claimant's financial affairs;

(c) details about the claimant's office or business affairs which are commercially sensitive or in respect of which she owes a duty of confidence to third parties (namely information relating to her work for Addenbrookes NHS Trust and any other NHS organisation, to the University of Cambridge, to the Lloyd's Hardship Committee, to any business directorships held by her, to her membership of the Council of Lloyd's, to her work as visitor at the University of Hertfordshire and any other information which was received by the claimant or by the defendant on her behalf in confidence);

(d) details about the sexual relationship between the claimant and her husband or of any sexual relationship conducted by any of the claimant's children;

(e) details about the claimant's home life and any incident or conversation concerning any member of the claimant's family, guest, visitor or member of her staff which occurred in the claimant's home and any other information concerning such persons which came to the defendant's knowledge as a result of the defendant's employment by the claimant;

(f) any information copied or derived from the claimant's personal, working or other diaries;

(g) any information copied or derived from e-mails or paper correspondence (whether in original or copy form) passing between the claimant and any third party;

(h) any information which concerned the claimant or any member of her family which is subject to legal professional privilege and/or solicitor/client confidentiality and/or communications with non- professionals, agents or third parties which are privileged in that they came into existence for the purposes of obtaining legal advice and/or in contemplation of litigation;

(i) details about the security arrangements at the claimant's homes, including the Old Vicarage, Grantchester, Cambridge and The Penthouse, 93 Albert Embankment, London SE1 or any home or place where the claimant or any member of her family shall reside."

35. As a result of discussions between counsel for both parties, it is now agreed that the claimant is entitled to an injunction in the terms set out in paras. (a), (c), (d) , (g), (h) and (i) In relation to para. (b) the defendant does not dispute the principle but submits that the following words should be added "save for details relating to the claimant's expenditure". In relation to para. (e) and indeed in relation to para. (f) there is a complete dispute between the parties.
36. In relation to the second limb of the claimant's claim, both liability and quantum of damages are in issue. In relation to the third limb of the claimant's claim, the principal issue for decision concerns ownership of the diaries. There is no dispute that the defendant should return to the claimant any other confidential material which she may hold.
37. The trial of this action began on Monday of this week. The defendant's new legal advisers furnished a fresh witness statement of the defendant to the court. That fresh witness statement supersedes her previous witness statements and is focused upon the live issues in the case. The claimant's written evidence is contained in three witness statements, which were served at an earlier time in accordance with the directions of the court. The oral evidence of the claimant and defendant occupied Monday afternoon, Tuesday and Wednesday morning, that is yesterday morning.
38. Both the claimant and the defendant impressed me as witnesses. On many matters of fact they were in agreement. They both answered all the questions put to them carefully, courteously and fairly. They both made concessions when this was appropriate. Each was willing to acknowledge matters favourable to her adversary. Having seen and heard the evidence of the two protagonists over the last three days, I can well understand why they had a successful working relationship over many years.
39. Let me now return to the history of the present proceedings. The oral evidence concluded at midday yesterday. By that stage counsel had concluded their discussions aimed at narrowing their issues. In their closing speeches yesterday afternoon counsel focused upon paras. (b) , (e) and (f) of the draft injunction, the claim for damages and the question of who owns the diaries. In this judgment I shall deal with the issue of the diaries first, before turning to the wider questions.

PART 4 - WHO OWNS THE WORKING DIARIES?

40. The claimant gave evidence that until August 2000 she had a personal diary which she carried around with her. In August 2000 she changed her personal diary from conventional Filofax form to electronic form. The claimant said that throughout the period 1988 to 2001 the defendant maintained a parallel diary, which recorded the claimant's appointments and engagements. The purpose of this parallel diary was to enable the defendant, as PA, to keep track of the claimant's engagements. This parallel diary has been referred to at trial as "the working diary". It is in Filofax form. The claimant says that the defendant physically purchased the working diary each year but she, the claimant, paid for it. It was part of the defendant's duty as PA to maintain the working diaries. Accordingly, they are the claimant's property. The claimant conceded in cross-examination that these diaries may well have been referred to in conversation as "Jane's diaries".
41. The defendant gave evidence to the effect that she purchased the diaries and they belonged to her. She used them to record her own personal information and appointments. She also recorded the claimant's appointments and engagements in these diaries in order that, at any given time, she would know where the claimant was and what the claimant was doing. The defendant conceded in cross-examination, upon being shown certain documents, that possibly the claimant did pay for the working diaries in some years.
42. I have examined the working diaries carefully and I have heard both parties cross-examined on this issue. My findings of fact are as follows. First, I am quite satisfied that the claimant paid for the working diaries. The defendant's recollection in this respect is mistaken. A cash book entry for 19th January 2001 shows that on that date the defendant took £13.90 out of petty cash in order to cover the cost of a Filofax diary for 2001. Only one Filofax diary was required for that year, because by then the claimant's personal diary was in electronic form. Furthermore, invoices from Heffers in Cambridge have been produced which record the claimant's purchase of two Filofax diaries for each of the years 1993, 1994 and 1995. In each of these years, one of these Filofax diaries would have been the claimant's personal diary, the other would have been the working diary which the defendant was required to maintain. Although records do not survive for the other years, a clear pattern has been shown. None of the documents produced are to the contrary effect.
43. In my judgment, the working diaries are the property of the claimant for four reasons: (1) The claimant paid for them. (2) The defendant was required to maintain the working diaries as part of her duties as PA. (3) The overwhelming majority of all the entries in the working diaries relate to the claimant and not the defendant. (4) Insofar as the defendant recorded her own personal information in the working diaries, this was her own choice; she could not thereby convert those diaries into her own personal property. Accordingly, my answer to the question posed in Part 4 of this judgment is that the claimant owns the working diaries.

PART 5 - THE CLAIM FOR AN INJUNCTION

44. The defendant's initial contract of employment which was entered into in May 1998 contained an express provision for confidentiality. This has been quoted in Part 2 of the judgment. Once the defendant started working for the claimant, she displayed both loyalty and competence. She won the trust of the Archer family. In cross-examination the defendant accepted that she had unsupervised access to all parts of the claimant's home and office. She was sometimes there alone. She opened all correspondence addressed to the claimant and had access to all her records. She had daily contact with friends of the Archer family and with public figures who visited the Old Vicarage. She mixed freely with the Archer family at home. The defendant said in cross- examination that she was almost like a member of the family.
45. In her written evidence to the Employment Tribunal, the defendant described her duties as PA in this way:

"8 My duties for the Respondent were numerous, including coordinating her professional, academic, social and personal engagements which are outlined in the CVs . . . I would make travel arrangements and bookings and ensure that all details for appointments were in place so that the Respondent's schedule and engagements flowed smoothly. I was also required to liaise with Lord Archer's office to coordinate certain of the Respondent's engagements with Lord Archer's. I also had to keep track of certain of the Respondent's family members so that they would know where the Respondent was likely to be at any given time and vice versa. I opened and dealt with all of the post; answered fan mail and requests for photographs; undertook typing, filing and other administrative duties. I would also oversee any maintenance or repair works to the property or any of its fixtures or equipment. I assisted the Respondent in the organisation of events held at the Respondent's premises, liaising with catering and security personnel on the approach to and during any such event…

9. I also oversaw the household and its staff. While the Respondent always handled all major financial matters, shares and Lloyd's investments, I looked after household running costs, finances and insurances, ensured bills were paid, and prepared tax and VAT returns. I made sure that she regularly attended hairdressing and dental appointments, and that family birthdays and anniversary were not forgotten. There was practically nothing in the Respondent's personal and business life in which I was not involved."

This passage was put to the defendant in the course of cross- examination at the present

trial and she agreed that it was true.

46. The defendant also said that she understood it was her obligation while she was an employee not to disclose to the press matters which she encountered during her work. When the question of confidentiality cropped up in discussion, the defendant reassured the claimant of her trustworthiness. Furthermore, as stated in Part 2 of this judgment, the defendant did not demur from the paragraph about confidentiality in the claimant's letter of 22nd December 2000. The defendant allowed the claimant to proceed on the basis that that paragraph was accepted.
47. Against that background, I have come to the conclusion that the defendant's obligation of confidentiality was not limited and confined for the whole 13 year period by the terms of the claimant's letter dated 19th May 1998. On the contrary, in the year 2001 (the relevant year for present purposes) it was an express term of the defendant's contract of employment that she would keep confidential all personal or business information which she acquired during the course of her employment relating to the claimant or any member of her family. If I am wrong that this was an express term of the contract, then it must have been implied. Both parties conducted themselves on the basis that the defendant had such an obligation. Such an obligation was necessary to give efficacy to the contract of employment. If there was not such an obligation, it would not have been possible for the defendant to fulfil her role as PA, as that role had evolved over the years.
48. For these reasons, I accept that the defendant's contract of employment contained the contractual term which is pleaded in para.5 of the amended points of claim. A contractual term of this nature, whether express or implied, must continue in force after the termination of employment. It would be absurd, and it would defeat the object of the contract, if the employee's obligation of confidentiality falls away at the moment when the employee clears her desk. The exceptions to this principle, which are discussed on p.822 of Volume 2 of Chitty on Contracts, 28th edition, have no application in the circumstances of the present case.
49. I turn now to the disputed paragraphs of the draft injunction. I deal first with para. (b). It seems to me that all of the claimant's financial affairs are covered by the contractual obligation of confidence. Details relating to the claimant's expenditure do not fall outside the limit.
50. I turn next to para. (e). Details of the claimant's home life fall within the contractual term. So also do any conversations which the defendant overheard between the claimant, her family, their staff and their guests. However, if the defendant had an independent conversation with a guest at the Archer household, that does not fall within the contractual term. If, for example, the defendant fell into conversation with a guest at one of Lord Archer's parties about a topic of mutual interest, that is not a matter which is confidential to the claimant. Accordingly, para. (e) requires to be re-drafted in narrower terms.
51. I turn now to para. (f). Information copied from the claimant's diaries falls within the contractual obligation of confidentiality. I am not sure what useful or legitimate purpose is served by including the words "or derived". Mr. Linden said yesterday afternoon that he was giving further consideration to this matter. It was agreed by counsel yesterday afternoon that my present judgment will deal with the issues of substance between the parties. After judgment has been delivered, the precise drafting of the order can be a matter for further consideration and debate.
52. Let me now draw together the threads so far. Subject to the drafting points which I have indicated, I find in favour of the claimant on the contractual issue. The matters set out in paras. (b),(e) and (f) of the draft order all fall within the contractual obligation of confidentiality.
53. If everything which I have said so far in relation to contractual obligations is held to be wrong by a higher court, then the issue arises as to whether the matters set out in paras. (b), (e) and (f) are protected in equity as pleaded in para.6 of the amended points of claim. The foundation for this part of the claimant's claim is the judgment of Megarry J. in Coco v. A.N. Clark (Engineers) Ltd. [1969] RPC 41. At p.47 of that judgment Megarry J. said that three elements are normally required if, apart from contract, a case for breach of confidence is to succeed. The first element is that the information itself must have "the necessary quality of about it"; the second element is that the information must have been imparted in circumstances importing an obligation of confidence; the third element is that there must be an unauthorised use of that information to the detriment of the party communicating it.
54. These principles have been reconsidered on many occasions, most recently about Lindsay J. in Douglas v. Hello! Ltd. [2003] EWHC 786 Ch That judgment distils the relevant principles with great clarity. At [182] - [l85] Lindsay J. helpfully explains the meaning of the three elements in Coco in the light of recent authority.
55. Since I am at this stage of my judgment dealing with a fallback position, perhaps I can take this matter quite shortly. In respects of paras. (b), (e) and (f) each of those three requirements are satisfied. First, the matters in paras. (b), (e) and (f) have the necessary quality of confidence, as explained by Lindsay J. in Douglas v. Hello! at [182] - [183] . Secondly, they were imparted in circumstances importing an obligation of confidence. Thirdly, the proposed use of these matters is both unauthorised and detrimental to the claimant. The claimant said in evidence, and I accept, that she has been distressed by the disclosures which have been made. She would also be distressed by further disclosure which the defendant would like to make.
56. Let me now turn to the second issue which arises in relation to the claim for an injunction. Accepting that, one way or another, the information in paras. (b), (e) and (f) is confidential, is the defendant nevertheless entitled to override that confidence and to make the disclosures which she proposes? On this issue the defendant takes her stand firmly on section 12 of the Human Rights Act 1998 and Article 10 of the European Convention on Human Rights: see para.ll of Mr. de Mello's skeleton argument. Section 12 of the Human Rights Act 1998 provides:

"(1) This section applies if a court is considering whether to grant any relief

which, if granted, might affect the exercise of the Convention right to freedom of

expression…..

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –

 (a) the extent to which –

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

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

published;

(b) any relevant privacy code."

57. Article 10 of the European Convention on Human Rights says:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers….

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

It can be seen that Article 10.2 imposes qualifications on the right to freedom of expression. One qualification is the need to prevent disclosure of information received in confidence. Another qualification is the protection of the rights of others. In the context of this case, the rights of others include the rights of the claimant under Article 8 of the 33 European Convention on Human Rights.

58. Article 8 provides as follows:

"1. Everyone has the right to respect for his private and family life, his home

and his correspondence .

2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

It can be seen that Article 8.2 imposes qualifications upon the right to privacy. One qualification is the protection of the rights and freedoms of others. In the context of this case one of those rights is the defendant's right to freedom of expression under Article 10. Thus one comes full circle.

59. It can be seen therefore that it is the duty of this court both under section 6 and under section 12 of the Human Rights Act to deal with the instant case in a manner which respects the claimant's rights under Article 8 and the defendant's rights under Article 10. In a situation such as this, Article 10 does not enjoy any special primacy. The rights of the parties under Article 8 and under Article 10 must be evaluated and weighed against each other: see Douglas v Hello! Ltd [2001] QB 967, at paras.131-133 per Sedley L.J., and paras.l48-l49, per Keene L.J. See also A v. B [2002] EWCA Civ 337 at [4]-[6], [2002] 3 WLR 542.
60. Let me now return to the circumstances of the present case .In relation to para. (b) the defendant says this:

"I would like to tell the press about Lady Archer's spending patterns including her thrift, petty cash and expenditures in relation to parties and clothing.These are examples. No mention will be made of her bank or building society accounts."

In relation to para. (e) the defendant says this:

"I would like to tell the press about my recollections and relationships with other members of staff, family, guests and visitors These recollections extend to recounting anecdotes, amusing experiences and humorous events which took place at the Old Vicarage. Many interesting visitors from all walks of life visited the Old Vicarage. Their fascinating and witty conversations would be of interest to the public."

In relation to para (f) the defendant says this :

"I would like to use information from the diary (ie the working diary) as an aide memoire to my experiences over the years and in recounting my story. They contain personal information. I would also like to refer to it and to the information derived from it to respond to Lady Archer's reference to my having spied on her and imparting information to the press."

61. Let me leave on one side for a moment the defendant's last sentence in relation to para. (f). The other matters which the claimant sets out in respect of paras. (b), (e) and (f) would appear to me to fall very low in the scale of public interest. On the other hand, from the claimant's point of view, the matters which the defendant seeks to disclose represent a substantial intrusion into her and her family's private life.
62. In relation to this issue, Mr. de Mello places reliance upon para.ll (xii) of the judgment of the Court of Appeal in A v. B [2002] EWCA Civ 337; [2002] 3 WLR 542. That paragraph reads as follows:

"Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest."

The Court of Appeal then go on to quote a Council of Europe resolution.

63. Mr. de Mello further submits that the claimant has brought her private life into the public domain by taking part in a television programme and a radio interview in May of this year.
64. So far as A v. B is concerned, I do not consider that the claimant is public figure of the kind described in para.ll (xii) of that judgment. She is not a role model. She is undoubtedly a highly successful career woman with a number of academic publications, a busy life and many activities. But what has brought the claimant under the spotlight of media attention is the fact that she is married to Lord Archer and the nature of Lord Archer various achievements and activities. In my judgment, the claimant is not in the same category as the football player in A v. B. Her professional and other activities do not make her private life a matter of legitimate interest to the public.
65. There remains to be considered the matter of the television programme and the radio interview. No transcript of either has been put in evidence. In her third witness statement at para.l5 the claimant makes a very brief reference to the content of the television programme. She said that it dealt with certain aspects of her life particularly in relation to her husband. The cross-examination of the claimant about these matters was very limited. In the result, there is only exiguous evidence before the court about the content of either the television programme or the radio interview.
66. I have come to the conclusion that the claimant is not a person who has by her way of life or her activities generated legitimate public interest in any of the matters which the defendant is seeking to publicise. I am reinforced in my conclusion that the claimant is entitled to preserve her confidentiality and her privacy in these respects by the principles which Lindsay J. sets out bearing the Roman numerals (ii), (iii), (iv), (v), (vi) and (vii) in Douglas v. Hello! Ltd. [2003] EWHC 786 (Ch) at [186].
67. For all these reasons, I reject the defendant's defence based upon the Human Rights Act 1998 and Article 10 of the European Convention on Human Rights. Mr. de Mello has developed a separate argument that the law does not protect trivial tittle tattle. I do not accept, however, that the matters in issue in this case fall into that category.
68. I turn next to the defendant's final point about para. (f) The claimant alleges in para.l4 of her third witness statement that the defendant spied on her in the summer of 2001 when the claimant was preparing material to assist in her husband's defence at the perjury trial. The claimant said in cross- examination that she made a similar allegation in the recent radio interview, although without naming the employee who had spied. The defendant strongly denies this allegation. Quite clearly the defendant has a right to defend herself in public against attacks of this nature. If the allegation is untrue, it must be extremely hurtful to her. The defendant is not a person who has the financial resources to bring a libel action. On the other hand, it does not seem to me that the defendant needs the information contained in the claimant's working diaries in order to deny the accusation made against her. I have read through the claimant's working diaries for the period May to July 2001 with this point in mind. I do not think that the defendant needs that part of the diaries for the suggested purpose.
69. For all these reasons I have come to the conclusion that, subject to the drafting points previously mentioned, the claimant is entitled to an injunction in the terms of paras. (b), (e) and (f) of the draft order.

PART 6 - THE CLAIM FOR DAMAGES

70. The 13 page fax which the defendant sent to Mr. Kellaway and copied to Mr. Clifford on 4th January 2002 consists in large part of confidential information: see the reasoning set out in Part 5 of this judgment, and the defendant's concessions set out in Part 3 of this judgment.
71. In his closing speech Mr. de Mello argued that the leak to the Sunday Mirror which appears to have occurred is not the responsibility of the defendant. Mr. Kellaway and the News of the World were bound by the confidentiality agreement dated 20th December 2001. Mr. Clifford, as the defendant's agent, was obliged not to authorise any publication without the defendant's consent. Furthermore, the defendant gave evidence, unchallenged in cross-examination, that she herself never approached the Sunday Mirror. Indeed, she instructed solicitors to advise her in this matter and to ensure that at each stage she was not in breach of duty to the claimant. Accordingly, it was not foreseeable by the defendant, submits Mr. de Mello, that events would take the course they did take and that the article in question would appear in the Sunday Mirror.
72. was at first attracted to this argument, but I have come to the conclusion that it is unsound. The defendant had embarked upon a high risk strategy. In breach of her duty to the claimant, the defendant disclosed confidential information in substantial quantities to Max Clifford, a public relations consultant; Mr. Henderson of the Mail on Sunday; Mr. Kellaway of News of the World; and journalist Y of the Daily Mail. The defendant had been told both by Mr. Henderson and by Mr. Kellaway that the topics covered in her 13 page fax were of particular interest to the press. Mr. Clifford was using his contacts in the media world to find a buyer for this information. It must have been obvious to anyone in the defendant's position that there was a substantial risk that, one way or another, the information which she was disclosing would find its way into the newspapers.
73. I therefore conclude that the defendant is liable in damages for the wrongful disclosure of confidential information.
74. I turn now to quantum of damages. The claimant said in evidence, and I accept, that she was distressed by the disclosure in the Sunday Mirror article of the facelift operation which she had undergone in 1998. Indeed, the claim for damages is focused specifically on this aspect of the matter. This information was not previously in the public domain. Mr. Linden submits that the claimant is entitled to general damages for her hurt feelings.
75. In support of this argument, Mr. Linden relies upon two authorities, namely Cornelius v. De Taranto [2001] EMLR 329 at 344-349; and Campbell v. Mirror Group Newspapers [2002] EWHC 499 (QB). In the latter case Morland J.'s decision was reversed by the Court of Appeal on liability. What the judge said about damages, however, was unaffected by the Court of Appeal's decision.
76. On the basis of these two authorities I accept that where a breach of confidence causes injury to feelings, this court has power to award general damages. General damages for injury to feelings should be kept to a modest level and should be proportionate to the injury suffered. Such awards should be well below the level of general damages for serious physical or psychiatric injury.
77. Mr. de Mello does not challenge the principle of awarding general damages for injury to feelings in this context. He submits that if he is unsuccessful on the liability issue (as he is) the range of damages should be between £2,000 and £3,000. Mr. Linden developed an intricate argument to the effect that general damages should be at least £5,500. This sum is arrived at, apparently, by adding the figure of £3,000, which was awarded to Mrs. Cornelius, to the figure of £2,500 which was awarded to Naomi Campbell in the two cases cited earlier. I admire the ingenuity of this argument, but I am not persuaded by it. I prefer the submissions of Mr. de Mello in relation to quantum. I bear in mind that the claimant in this case has been and no doubt will continue to be the focus of much publicity. Some of it is favourable and some unfavourable. In cross-examination the claimant commented that the tabloid press is obsessed with everyone's appearance. She just tolerates this. When the press say nice things about her, she is flattered; when the press say unkind things, she is hurt.
78. Bearing in mind all the circumstances of this case, as well as the guidance given in the authorities, I assess general damages at £2,500.

PART 7 - CONCLUSION

79. For the reasons set out in Part 4 of this judgment, the claimant succeeds in her claim for delivery up of the diaries. Subject to questions of drafting, there is no dispute that the defendant must hand over any other confidential material which she may hold. For the reasons set out in Part 5 of this judgment, the claimant succeeds in her claim for an injunction to restrain future breaches of confidence. For the reasons set out in Part 6 of this judgment, the court awards £2,500 in damages to the claimant for breach of the confidence.
80. That disposes of all the issues of substance between the parties. I shall now give counsel an opportunity to discuss the drafting of the court's order. When counsel have had that opportunity, I shall come back into court in order to resolve any remaining issues about the wording of the order.
81. There is one final thing which I wish to say before parting with this case. The parties have now been locked in litigation for over a year. They have had a six day hearing before the Employment Tribunal, where Mrs. Williams was making the claim. They have had a four day hearing in the High Court, where Lady Archer is making the claim. Despite the confines of the injunction, Mrs. Williams is still able to go on making hurtful public statements about Lady Archer. Furthermore, Lady Archer, armed with this judgment and the likely costs order, can greatly increase Mrs. Williams' present acute financial difficulties. Lady Archer and Mrs. Williams have worked together harmoniously and successfully for many years to their mutual benefit. Having seen the fair and measured way in which they each gave evidence, I am not surprised. I very much hope that in the aftermath of this trial they are both able to arrive at some form of truce. For the reasons stated above, there must be judgment for the claimant in this action.

LATER:

MR. JUSTICE JACKSON:

82. I gave judgment this morning dealing with all issues of principle between the parties. Following the delivery of that judgment, counsel conferred as to the wording of the order and constructively and helpfully agreed the entirety of the wording of the order save only for the appropriate drafting of para.1(e). I have considered the submissions made both by Mr. Linden and Mr. de Mello concerning para.l (e) and I have typed up in the last few minutes the wording which will be adopted. Paragraph 1(e) will read as drafted in draft order version four. There will then be added the following words which appear on my typed sheet:

"Provided always that this injunction shall not prevent the defendant from disclosing details of any conversation (not relating to the claimant, her family, her staff or the defendant's duties as PA) which took place between the defendant and any of the claimant's guests or visitors at the claimant's home."

LATER:

MR. JUSTICE JACKSON:

83. This is an application for costs, an application for an interim order in respect of costs, an application for a charging order (consequential upon such interim order) and an application that the defendant's former legal advisers should show cause why a wasted costs order should not be made.
84. So far as the claim for costs is concerned, Mr. de Mello submits that the claimant has not been wholly successful. He identified areas where the claimant has not achieved all that she was seeking at the very start of this trial. It seems to me that the claimant has been the substantial victor on all issues in this case and there is no proper basis upon which I can do other than order the defendant to pay all of the claimant's costs. I make that order.
85. I turn now to the application for an interim order in respect of costs. This court has a discretion whether or not to make an interim order. In support of his application for an interim order, Mr. Linden relies upon the first and fourth paragraphs on p.1004 of Civil Procedure 2003, volume 1. He also relies upon the decision of Laddie J. in Allason v. Random House, and the decision of Jacob J. in Mars v. Teknowledge Ltd. It seems to me that in para.12 of Laddie J.'s judgment in Allason, the judge is not laying down a universal rule that interim orders for costs ought always to be made in cases where the paying party is of limited means. It made sense to make such an order in that case because of the factors set out in the judge's judgment and because it seemed improbable in that case that there would ever be a detailed assessment of costs. In the present case, unless there is some overall resolution of the differences between the claimant and the defendant, which one would much like to see, as matters stand I see no prospect of the claimant abstaining from proceeding to a detailed assessment of costs in any event.
86. I have to consider all the circumstances of this case in exercising my discretion as to whether to make an interim order. Part of the circumstances which this court is required to take into account is the relative financial position of each party. That is pointed out in the commentary to the Supreme Court Practice upon which Mr. Linden places reliance. The financial position of each party in the present case is as follows. The claimant is a person of extreme wealth. The defendant is, on all the evidence, penniless. I take that into account in the exercise of my discretion.
87. The next matter which I must consider is this. Mr. Linden tells me that the claimant intends to seek a remedy against the defendant's former legal advisers. The defendant's former legal advisers are not here in court today and I cannot begin to consider the strengths or weaknesses of such an application, before they have had an opportunity to respond to those allegations. Suffice it to say that there appears to be another avenue of recovery for the claimant and I have at the moment no notion as to how that proposed avenue of recovery will proceed. If the allegations which the claimant makes against the defendant's former legal advisers are well founded, it may be - and I know not - that the defendant has some similar right. I do not know, because I have not gone into the allegations which the claimant proposes to make.
88. In the present uncertain state of affairs and having regard to all the circumstances of this case, in my judgment, it would be inappropriate to make any interim order for costs and I decline to do so.
89. I turn next to the application which Mr. Linden makes for an order that the former legal advisers of the defendant should show cause why a wasted costs order should not be made. An application of this nature should only be made when the proposed respondent to the wasted costs order is present in order to argue the merits of the application. Such applications involve, on occasions, detailed consideration of the issues and one looks not only at the merits but also at the costs which would be involved in a "show cause" hearing, and all the other factors which the Court of Appeal identified in Ridehalgh v. Horsefield [1994] Ch 205. The question of whether the former legal advisers should show cause is a question which the claimant can only pursue on a future occasion at a hearing of which the former legal advisers have notice, and before which they have had a proper opportunity to prepare their case. It was certainly my experience at the Bar that on occasions such a hearing could last for up to a day. This is not something to be rushed through without notice to other parties affected.
90. Finally in relation to that matter, I should say that whether it is I or some other judge who deals with any application that may be made against the former legal advisers, is a matter which must be resolved by those who deal with the disposition of judges. I can see the advantages of my dealing with any such application, as I am familiar with the case. On the other hand, it frequently happens that a different judge is allocated to the matter. That is not a question which it falls to me to resolve.

LATER:

MR. JUSTICE JACKSON:

91. This is an application by the claimant for a charging order against the defendant's house in respect of the sum of £2,500 awarded as general damages to the claimant this morning. Schedule 5 to the Charging Orders Act 1979 gives the court a discretionary power to make a charging order. Paragraph 1(5) reads:

"In deciding whether to make a charging order the court shall consider all the circumstances of the case and, in particular, any evidence before it as to –

(a) the personal circumstances of the debtor, and

(b) whether any other creditor of the debtor would be likely to be unduly prejudiced by the making of the order."

92. I am satisfied from the submissions which I have heard this afternoon that there are not other creditors who would be prejudiced by the making of a charging order in the sum of £2,500. I do take into account the unfortunate financial circumstances of the debtor. I must also take into account the circumstances of the claimant, in that she has a substantial claim for costs which is not the subject of any charging order.
93. It seems to me that, considering all the circumstances of the case, and considering the relatively modest sum involved in comparison with the equity in the defendant's house, the proper order is for this court to make a charging order against the defendant's house in the sum of £2,500. I make such an order, because I consider that that is the only proper exercise of this court's discretion. I do so without any enthusiasm in view of the defendant's circumstances.