United Kingdom House of Lords Decisions

At advising, on 23rd February 1988, the Lord Ordinary (Coulsfield) refused the application for interim interdict.

LORD COULSFIELD'S OPINION.—I originally granted interim interdict in this case after a hearing on 5th January 1988. The nature of the proceedings and of the interdict then sought, and the arguments of parties at that hearing and at a subsequent motion for recall, which I refused, are set out in my opinion dated 12th January 1988, to which I refer. Thereafter, as I understand the position, the respondents reclaimed, and, after a hearing, the First Division recalled the interim interdict, on certain undertakings given on behalf of the respondents, and remitted the case to allow a fresh application for interim interdict to be made. That application came before me on 16th February 1988 and the three following days. Since the case was originally presented, the prayer of the petition has been amended and adjustments have been made to the statements therein. The narrative concerning the writing and circulation of Mr Cavendish's book Inside Intelligence has been supplemented by averments that authorisation to publish the book was sought but was refused; that although Mr Cavendish privately published 500 copies of the book and distributed them to individuals on about 25th December 1987, disclosure of the contents of the book was not widespread; and that Mr Cavendish has given an undertaking to the Crown not to distribute further copies of the book without first giving 14 days' notice thereof. Averments have been added to the effect that on 14th January 1988 Her Majesty's Attorney General stated to the court in the English action that, by concession, he would offer to permit publication of part of the material contained in the book; that a copy of the book showing the permitted material was lodged and that the English order was modified accordingly. Further, averments have been added to supplement the original averment that disclosure or publication of material contained in the book is prejudicial to the interests of the Crown. It is now averred that it is prejudicial to national security. Six respects in which publication is said to be prejudicial to the interests of the Crown and to national security are set out and will be considered in more detail below. It remains the case, however, that it is not stated that publication of any of the information in the book, or indeed any information in the possession of Mr Cavendish, would directly endanger national security. Further, it is not stated that any of the information in the book is likely to be unknown to any foreign power which may happen to be interested. Indeed it is not said that there is any information in the book or in the possession of Mr Cavendish which has not already been published in other earlier books and publications.

[His Lordship quoted the terms of the interdict sought as amended as set out supra, and continued.]

It should be explained that no. 27 of process is a proof copy of the book which does not in all respects match the copies eventually circulated by Mr Cavendish. Counsel for the petitioner however said that the reference to no. 27 of process was made as part of the definition of material permitted to be published; and that it was sought to prohibit publication of all other information falling under the general description in the earlier part of the proposed interdict.

Answers to the petition have been lodged by, first, The Scotsman Publications Ltd. and the editor of the Scotsman newspaper, who were the original respondents named in the petition, secondly, Scottish Television plc and thirdly, George Outram & Co. Ltd. Both the second and third respondents appeared at the motion for recall which I previously heard. To a considerable extent, the material contained in the answers is argumentative in nature and can be considered in connection with the arguments of the parties. So far as factual averments are concerned, however, the first and second respondents aver that they received copies of the book from persons other than Mr Cavendish and, although the third respondents did not have a specific averment on that point, I understand their position to be the same. Counsel for the petitioner indicated that he did not seek to dispute these averments. There is no suggestion that any of the respondents were in any way concerned in encouraging or bringing about the publication of Mr Cavendish's book. The answers contain averments suggesting that some of the material in Mr Cavendish's book should be published because it discloses "iniquity". However the material in question is included in the part of the book which the petitioner does not now seek to restrain from publication and, as a result, the question of iniquity plays no direct part in the argument in the present case.

The basis of the argument on behalf of the petitioner was set out in three propositions, namely: (1) There is a lifelong duty of confidentiality which attaches to all information gained by a person employed in the secret services. (2) That duty transmits to anyone who, knowing the confidential nature of the information, comes into possession of that information. (3) In a case where there is a duty of confidence owed to the Crown or the public, the public interest in preserving confidence has to be weighed against the public interest in the freedom of information.

In advancing these propositions counsel for the petitioner relied on principles supported by a number of English authorities, and most recently expressed by the English courts in dealing with the various stages of the litigation concerning the book Spycatcher written by Peter Wright. The Attorney General first raised proceedings against the Guardian and Observer newspapers to prevent publication of material from Mr Wright's book in 1986, and on 11th July 1986 Millett J. granted interlocutory injunctions against these two newspapers. The two newspapers appealed and on 25th July 1986 the Court of Appeal confirmed the injunctions, subject to minor modifications. In July 1987 the newspapers applied for discharge of the interlocutory injunctions and that application was heard by the Vice Chancellor, by the Court of Appeal and by the House of Lords within a very short period of time. The opinions delivered at these stages of the proceedings are reported in [Attorney General v. Guardian Newspapers Ltd .] [1987] 1 WLR 1248. The interlocutory injunctions were maintained, again subject to modification, and the action proceeded to trial. At the stage of trial the action against the Guardianand Observer newspapers was heard along with another action at the instance of the Attorney General against Times Newspapers Ltd. Scott J. gave judgment in these actions on 21st December 1987 and I was supplied with a copy of a transcript of his judgment. The Attorney General appealed to the Court of Appeal and the court issued its judgment on 10th February 1988. Again I was supplied with transcripts of the judgments of the Lords Justices [see Attorney General v. The Guardian Newspapers Ltd. (No. 2) (The Spycatcher Case) [1988] 2 W.L.R. 805]. In addition there were proceedings for contempt of court arising from publication of certain material by the Independent newspaper and these are reported under the title Att. Gen. v. Newspaper Publishing plc [1987] 3 W.L.R. 942. In addition to the Spycatcher judgments reliance was placed on the opinion of Lord Widgery C.J. in Att. Gen. v. Jonathan Cape Ltd . [1976] Q.B. 752. which is cited with approval in the Spycatcher judgments.

The rules of law on which the Court of Appeal proceeded at the most recent stage of the Spycatcher case can, I think, be summarised as follows: (1) Where one party acquires confidential information from another in the course of a confidential relationship, the party who acquires the information is not ordinarily free to divulge it to a third party without the consent of the person who gave the information. (2) What is confidential information is a matter of the precise circumstances of the case, but, generally, something which is already widely known is not confidential: and what becomes widely known (otherwise than through the agency of the person against whom the duty of confidence is to be enforced) ceases to be confidential (perSir John Donaldson, M.R. [1988] 2 W.L.R. at p. 868; and perBingham L.J. at pp. 903-904). (3) What is a confidential relationship is likewise not precisely defined. It is clear that employment is one such relationship, but others can be figured (per Sir John Donaldson, M.R. at p. 867). (4) The duty to preserve a confidence arises from the application of equity, and does not depend on express or implied contract. Because the duty arises from this source, it applies to a third person to whom the information is communicated if he knows that it is confidential, because his conscience is thereby affected. A third party cannot, however, ordinarily be prevented from publishing information which although once confidential has ceased to be so otherwise than through the agency of the third party (per Nourse L.J., transcript 25th July 1986, at p. 9; Bingham L.J. [1988] 2 W.L.R. at p. 904; Master of the Rolls at p. 868; Dillon L.J. at p. 890). (5) The duty of confidence is not absolute. It does not extend to information which is useless or trivial, and it does not extend to information which the public interest requires to be disclosed because it demonstrates what is conveniently referred to as iniquity (per Bingham L.J. at p. 903). Iniquity is not confined to cases of outrageous wrongdoing, but, as the exception of the ground of iniquity now plays no direct part in the present case it need not be considered further. (6) In a case between private persons, where, for example, an employer seeks to restrain publication of commercial confidential information, if it is established (a) that the information was and remains confidential and (b) that it was imparted in circumstances of confidence, and if there is no defence of iniquity, it would follow that publication would be restrained. The court would not require to enter into any exercise of balancing the interest of the employer against any competing interest, public or private (perBingham L.J. at p. 906). (7) The principles set out in the preceding six paragraphs were developed in the context of private and commercial relationships. Nevertheless, the Crown is entitled to assert an interest in the confidentiality of its information similar to the interest of a private citizen in commercial information, and such an interest will be protected (per Nourse L.J., transcript 25th July 1986, at p. 9; Dillon L.J. [1988] 2 W.L.R. at p. 890; Bingham L.J. at p. 906;Att. Gen. v. Jonathan Cape Ltd .). (8) Where Crown information is involved, even after it is established that the information was and remains confidential and that it was imparted in circumstances of confidence, a further question remains to be determined. This question arises because, on the one hand, the interest in preservation of confidentiality of government information is a public interest and, on the other hand, there are competing public interests in freedom of speech and freedom of the press, and, indeed, a public interest in good government, which may be advanced by public discussion of the information in question. The court therefore requires to balance the competing public interests, according to the circumstances of the particular case (Att. Gen. v. Jonathan Cape Ltd .;per Bingham L.J. [1988] 2 W.L.R. at pp. 906 and 909; Dillon L.J. at pp. 891 et seq.; Sir John Donaldson, M.R. at pp. 869 et seq.; Commonwealth of Australia v. John Fairfax and Son Ltd . at p. 51). (9) In striking the balance the court is not bound to accept the ipse dixit of the government or its representatives as to the effect of a particular disclosure on the national interest. The court will recognise that there are limitations on its own knowledge and expertise, particularly in the field of national security. If it is said that a particular disclosure will directly endanger national security, little, if anything, more may be required. Apart from that extreme case, however, it is for the Crown, like any other party seeking to restrain publication to show that restraint is necessary (per Bingham L.J. at pp. 908-909;Att. Gen. v. Jonathan Cape Ltd .). (10) In carrying out the "balancing exercise" the court will have regard to all the circumstances of the case.

Although as I have indicated, the principles set out above appear to emerge fairly clearly from the opinions in the Spycatcher case, they are not entirely free from difficulty. The Vice Chancellor (Sir Nicolas Browne-Wilkinson) pointed out, at the stage of the application to discharge the interlocutory injunctions, that "the principles on which the law of confidential information is based have never been clarified and remain, to my mind, obscure. That makes it difficult when, as I believe is the present case, the law is applicable to a different set of circumstances from those which have previously arisen." (Att. Gen. v. Guardian Newspapers Ltd . [1987] 1 WLR 1248 at p. 1263). It does seem clear that the rules for the protection of confidential information originated in the context of commercial information and in cases between private citizens. It is recognised that it is not altogether easy to apply these rules to questions concerning government information, but there are no other rules which can be relied on to resolve the conflict which arises in cases such as the present (per Bingham L.J. Att. Gen. v. The Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805 at p. 902). In applying the rules to government information, some modification is required to take account of other public interests, with the result that the court may require to undertake the balancing exercise referred to above. However, I do not see any ground in authority or principle to justify any further modification to the rules, and the Crown right to preserve the confidentiality of its information remains in principle the same as that which any private citizen has in respect of information confidential to him. Counsel for the petitioner argued that although the right on which the Crown founds originated in concepts of property and equity, public policy considerations had become involved in it. In my view, however, public policy considerations have become involved only so as to restrict the Crown's ability to enforce confidentiality, when other public interests are involved. It was further argued that the court should approach the question of the protection of government confidential information as, in appropriate cases, one of the protection of classes of information rather than the protection of particular items of information. A comparison was made with the cases concerning ministerial certificates restricting the recovery of Crown documents for the purposes of litigation, and it was suggested that, just as certain documents may be withheld because they belong to a class which should, in the public interest, be exempt from disclosure, so certain classes of information should be protected as confidential. There may be some similarity between the considerations relevant in the balancing exercise in cases concerning confidential information and those which the court has to take into account in deciding whether to override a ministerial certificate. However the value of the distinction between protection on the grounds of class and protection on the grounds of contention has been doubted, even in connection with the disclosure of government documents (Burmah Oil Co. v. Bank of England [1980] AC 1090 per Lord Keith at p. 1134). In any event, I see nothing in the authorities cited which supports the proposition that the right to protect confidential information has become a right to protect information because it belongs to a class which should be kept confidential. The right which the Crown relies on in the present case is, in my opinion, a right to protect information, that is particular items of information, which are confidential in the sense that they have not been published. It is not a right of a special or higher character than that of a private citizen. I should perhaps add that there are dicta, referred to in more detail below, which suggest that the Crown may have a special right to protect information which directly affects national security, but, if there is such a right, it is different from the right on which the Crown rely in this case, and in the Spycatcher case.

In the argument for the respondents, it was submitted that, while Scots law would recognise and enforce a duty to preserve confidence arising from express or implied contract, and possibly also in other limited circumstances, there was no equivalent in Scots law to the rule of English equity whereby a person coming into possession of confidential information, knowing it to be confidential, becomes subject to an obligation arising from conscience and not referable to any contract, to respect that confidence. There was thus, it was contended, no rule of Scots law which imposed any duty of confidence upon the respondents in respect of the information contained in Mr Cavendish's book, given the circumstances in which they had come into possession of that information. If that argument is correct it strikes at the root of the petitioner's case, and it might be logical to deal with it first. However, the issue is one which may be of considerable commercial importance and, as I have come to the view that the present application can be disposed of on other grounds, I prefer to leave that issue to be determined in a more suitable case and will later comment briefly on the arguments advanced. I therefore approach the question whether interdict should be pronounced on the basis that the respondents, as recipients of information of a confidential character, may be subject to an obligation not to publish it and that in these proceedings the court may require to carry out the balancing exercise described in the English authorities.

The respects in which the petitioner avers that disclosure of the information sought to be prohibited would be prejudicial to the Crown interests and to national security are as [set out in stat. 7 of the petition]:—

"(a) the intelligence and security services of friendly foreign countries with which the British security and intelligence services are in liaison would be likely to lose confidence in their ability to protect classified information; (b) the British security and intelligence services depend upon the confidence and co-operation of other organisations and persons which confidence would be likely to suffer serious damage should Mr Cavendish reveal information of the nature described above; (c) there would be a risk that other persons who are or have been employed in the British security and intelligence services who have had access to similar information might seek to publish it; (d) there would be likely to be a serious adverse effect in the future on the morale and discipline of members of the British security and intelligence services if the disclosure of said information were allowed in breach of said duty of confidentiality; (e) in the absence of interdict pressure would be likely to be exerted by the media on other members or ex-members of the British security and intelligence services to give their views on matters referred to by Mr Cavendish; (f) detriment will be likely to flow from the publication of information about the methodology and personnel and organisation of the British security and intelligence services."

These are very similar to the grounds relied on by the Attorney General in the Spycatcher case.

For the reasons already explained, the right on which the petitioner founds in the present case appears to me to be nothing more than a right to restrict publication of information which is, and remains, confidential in that it has not been published. I therefore have difficulty in seeing how grounds (a) to (e) at least are relevant to the enforcement of a duty of confidentiality against third parties such as the present respondents, who have come into possession of the information innocently, that is without having committed or induced any breach of contract or delict. I can follow the argument that such a third party may be under a duty not to publish information which is confidential if he thereby makes the information known and in that way injures the person whose confidence is in question. However, in a dispute between private persons at least, it seems obvious that if the information has ceased to be confidential in that it has already become known, otherwise than through the agency of the third party, the third party cannot be said to be under any duty to refrain from publication because his doing so might, for example, induce other employees of the confider to seek to publish other information, or might cause loss of confidence among business associates of the confider. Put another way, the only duty which falls on the third party recipient of confidential information appears to be to refrain from publishing that which is not already published. He is not under any duty or obligation to refrain from publishing in order to assist the original confider of the information to maintain morale or discipline in his workforce. In my view, there is nothing in the authorities cited to me to justify any suggestion that the position of third parties should be any different when government information is concerned. A balancing exercise, as described above, may be required when a question arises as to the publication of information which is confidential in the sense that it is not already known, and considerations such as these set out in heads (a) to (e) above may be very relevant in such a balancing exercise. When, however, the information has already been published no balancing exercise is required and considerations of that sort referred to in heads (a) to (e) do not appear to me to be relevant (compare Bingham L.J. [1988] 2 W.L.R. 805 at pp. 911-912). Counsel for the petitioner said, at one point in his submissions, that what was in issue was the protection of confidential relationships rather than information. However I see no authority for that proposition in any of the cases referred to. The government's claim in a case such as this is founded on a right which is, in principle, the same as that of any private person who is entitled to protect confidential information. If a balancing exercise were required even in the case of information which had already ceased to be confidential, that would represent a considerable extension in favour of the Crown of the right to restrict publication of information and a considerable departure from its origin in private law.

In my opinion, therefore, heads (a) to (e) inclusive of the reasons set out to justify the allegation of prejudice to national security, are irrelevant in considering whether third parties such as the present respondents should be restrained from publishing information, unless it can be said that the information is confidential in the sense that it has not been already published. On the averments in the present case, Mr Cavendish's book has already been circulated quite widely, and there is, in any event, no averment that any information contained in it has not been published previously. This is of importance because, as the judgments in the Spycatcher case show, material concerning the matters dealt with in Mr Cavendish's book has already been published in a number of ways. It is no doubt true, as the petitioner argued, that information of the sort in question here carries more weight if attributed to a definite source, and it may be that information which has circulated merely as rumour might not be regarded as having been published. That is not, however, the position in this case. It was suggested on behalf of the petitioner that the circulation of 500 copies is not wide publication and that the respondents did not aver that the information was already known to any foreign power. In my opinion, it must be for the petitioner at least to aver that the information is confidential in the sense of not being already known and he has not done so. In any event, the circulation of 500 copies and the publication of parts of the book in the press appear to me to be amply sufficient to allow it to be inferred that any person or government really interested in the remainder of the book will already have obtained it. Similarly, it is, I think, for the petitioner to aver that Mr Cavendish has information not contained in the book and not already published and indicate at least the general nature of such information in order to obtain any interdict in relation to it. Head (f) of the reasons could be relevant in considering the position of third parties, but it would still, in my opinion, be for the petitioner to aver that there was information in the book or otherwise in the hands of Mr Cavendish which could cause such prejudice and to specify the information in question. Again, the petitioner has not sought to do so. It may not be easy to find a way to make specific averments without effectively disclosing the information, but that difficulty equally faces a private citizen who seeks to protect confidential information. The petitioner is, in my opinion, in no different position from any such private citizen and must make relevant and specific averments to support his entitlement to the remedy which he seeks. In my opinion, he has not done so.

However, in case that should be thought too narrow an approach, I proceed to consider what the position would be in the present case if the balancing exercise had to be carried out. The proper approach is set out by Lord Widgery C.J. in Att. Gen. v. Jonathan Cape Ltd . at p. 770 as follows:

"In these actions we are concerned with the publication of diaries at a time when 11 years have expired since the first recorded events. The Attorney General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facets of the public interest contradictory of and more compelling than that relied on. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need."

A little later in his opinion the Lord Chief Justice said:

"The court should intervene only in the clearest of cases where the continuing confidentiality of the material can be demonstrated."

On this information, it must be for the petitioner to show that the balance is against publication: it is not for the respondents to show reasons why publication should be permitted. That approach seems to be in accordance with the general acceptance by the Court of Appeal in the Spycatcher case that there is a predominant public interest in freedom of speech. A slightly different formulation was given by Mason J. in Commonwealth of Australia v. John Fairfax Ltd . at pp. 51-52 when he indicated that it was for the government to show as part of its case that there would be detriment to the public interest. On either formulation, it is for the petitioner to show that publication should not proceed. For the reasons I have already given, I consider that the book has been sufficiently distributed to make it probable that any interested power will already be familiar with its contents. So far as information in the book is concerned, any damage of the kind referred to in heads (a), (b) and (f) of the petitioner's reasons above quoted will already have occurred. The petitioner has failed to make any specific averment relating to any other information not found in the book, and I am not prepared to assume, without some averment, that there is any such information. These reasons therefore provide nothing to weigh in the scales against the interest in freedom of public discussion. Heads (c), (d) and (e) relate in one way or another to the discipline and morale of members or ex-members of the security services. In the Spycatchercase, Scott J., who had had the advantage of hearing evidence, pointed out that the matter equivalent to head (e) involved speculation and a number of imponderables ([1988] 2 W.L.R. 805 at p. 861). He also pointed out with reference to the matter equivalent to head (c) that in order to publish with impunity members of the security services would have to leave the country. I respectfully agree with his comments on both matters. There remains the suggestion that the discipline and morale of the security services generally would be affected. However the context in which this has to be considered is one in which extensive publication of a wide range of material has already taken place. In my view, it is impossible to see that there is any reasonable risk of further damage accruing which would be prevented by a grant of the interdict sought in the present case. Two further matters have, in my opinion, to be borne in mind. The first is that there are criminal sanctions against the disclosure of secret government information. No attempt has been made to use them in the present case, but they do exist. The second is that the primary target for any civil action in connection with such disclosures is the member of the services himself, against whom the Crown can seek interdict if there is any cause to anticipate disclosure. Bearing in mind the primary values of freedom of speech and information, the importance of which is repeatedly emphasised in all the judgments so far delivered in the Spycatcher case, it is, in my opinion, clear that in the present case there are no averments sufficient to justify tilting the balance against that freedom by granting the interim interdict sought.

Three further aspects of the argument on this branch of the case require to be noticed. First, counsel for the petitioner emphasised very strongly that this is an application for interim interdict and referred to the views adopted by the English courts, including the House of Lords, at the equivalent stage of the Spycatcherproceedings. There was some discussion in argument of possible differences between the approach of the courts in England to the grant of interim injunction and those of the court in Scotland to a grant of interim interdict, and reference was made to the opinion of Lord Fraser in N.W.L. Ltd. v. Woods [1979] I.C.R. 867 at p. 884. Whatever the position may be in England, it is I think clear that the court in Scotland can have regard to the relevancy of the petitioner's averments in considering whether to grant interim interdict, at least as one of the material factors to be considered. There are, I think, some differences between the position in the Spycatchercase in its early stages and that in the present case. One major difference is that the relevant principles of law on which the Crown rely have been elucidated by the judgments of Scott J., and the Court of Appeal, and it is possible to weigh up the averments now made against those principles. Another major difference is that in some respects it is possible to have regard to the conclusions reached by Scott J. and the Court of Appeal after evidence has been heard. In the present case, the petitioner has had ample opportunity to set out a relevant and specific case to justify interim interdict and, for the reasons given above, I do not think that he has done so.

The second matter is that in the course of argument reference was made to the opinion of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at p. 412, and it was suggested on behalf of the petitioner that the judgment whether publication of any material would prejudice the interest of the Crown or national security was one for the executive. I would however respectfully agree with the treatment of this matter in the judgment of Bingham L.J. in the Court of Appeal [1988] 2 W.L.R. 805 at pp. 908-909. It was not suggested that the present case was one in which national security was directly in issue. On the averments, this is, I think, clearly a case in which the court is not required to accept the view of the executive without scrutiny or without balancing that view against other public interests.

The third matter again concerns the basis of the rule against disclosure of confidential information. As has been noted it was argued on behalf of the petitioner that although the rule originated in private law, public policy considerations had become involved. It was further said that it must be open to the court to stop the abuse of national secrets, and reference was made to the opinion of Lord Widgery in Att. Gen. v. Jonathan Cape, to the speech of Lord Templeman in the Spycatcher case at p. 1279 and to the opinion of the Master of the Rolls [1988] 2 W.L.R. 805 at p. 867. It may be the case that where actual danger to national security is involved, the court may have some right or power to act, on the application of the Crown, independently of the rules, derived from private law, governing the confidentiality of information, but the Crown has not sought to base its claim on any such right, either in the present case or in the Spycatcher case.

For all these reasons, I consider that the application for interim interdict should be refused. In these circumstances it is not necessary to reach a conclusion on a number of other issues which were discussed, but in case the action should go further, I propose to discuss them briefly.

First, as I have mentioned, it was argued for the respondents that Scots law does not recognise any rule parallel to the English equitable rule whereby a third party recipient of confidential information becomes bound to respect its confidentiality. It was submitted that the right to confidentiality was in English law an equitable right, a species of right to which there was no equivalent in Scots law. So far as third parties were concerned, the obligation to respect the confidentiality of information appeared to be regarded in England as a kind of burden attaching to the information and affecting the conscience of the recipient. Again, there was no equivalent concept in Scots law. Scots law would, of course, recognise an obligation to respect confidence arising from express or implied contract, and a third party who induced a breach of such a contract would also be liable. However, the authorities in Scots law went no further. Reference was made to Brown's Trs. v. Hay (1898) 25 R. 1112 which, it was submitted, turned on questions of property in certain documents rather than on any right of confidentiality in the information contained therein. Reference was also made to the only two recent Scots cases in which questions of confidentiality have arisen, Levin v. Caledonian Produce 1975 S.L.T. (Notes) 69 and Roxburgh v. Seven Seas Engineering 1980 S.L.T. (Notes) 49 which, it was submitted, do not support the existence of a burden of confidentiality affecting third parties who come into possession of confidential information innocently. Reference was also made to Mushets Ltd. v. Mackenzie Brothers (1899) 1 F. 756 and Grant v. Allan 1988 S.L.T. 11. The submission went so far as to deny that the person originally entitled to the confidential information had any right at all to enforce confidentiality against a third party who was a passive recipient of that information.

Counsel for the petitioner submitted that the right to protect confidentiality in English law was a right derived from equity in the sense of fairness or justice and that Scots law could equally recognise such a right. It was further submitted that while the right may have originated in concepts of property, it had developed well beyond that stage and that public policy considerations had entered into it, at least where there was a public interest in the preservation of confidentiality. Reference was made to the cases of Prince Albert v. Strange (1849) 1 H. & T. 1 and Duchess of Argyll v. Duke of Argyll [1967] Ch. 302, as well as to Att. Gen. v. Jonathan Cape Ltd . Again, it was submitted, there was no reason why Scots law should not take the same course. The two recent Scots cases had been decided without extensive citation of authority and had not dealt with the situation in which public policy might be involved.

It can, I think, at least be said that there has been no clear recognition in Scots law of a right to protect confidentiality effective against third parties who have come into possession of the information innocently. It can further be said that the conceptual basis of the English right does not fit easily into the framework of Scots law. So far as I can judge the English right does appear to be a species of equitable right in a more technical sense than merely one derived from considerations of fairness. The petitioner's argument tended to pass over the question whether any such right was in principle admissible in Scots law and to rely on public policy, especially in the context of government information, and there was little direct answer to the respondents' fundamental attack on the possibility of a right against third parties arising at all in Scots law. There are, I think, substantial difficulties in the way of accepting that a right to protect confidential information effective against innocent third parties exists in Scots law. However, the reference to English authority in argument was limited and there was no discussion of the range of cases including Saltman Engineering Co. v. Campbell Engineering Co .(1948) 65 R.P.C. 203 which have dealt with the protection of confidential commercial information. Protection of such information may be of great importance to the parties concerned and I would not be prepared to affirm on the basis of the argument advanced before me that Scots law can afford no protection to such commercial interests. The legal basis of protection may not be identical to that afforded by English law but I would hesitate to say that there is no means by which Scots law can arrive at an equivalent result. In any case, the principal focus of argument in the present case concerned matters of public interest and I do not regard this as a suitable case in which to express views on the fundamental question of the recognition of any right, in any circumstances, to prevent publication of confidential information in the hands of third parties.

A further question which was discussed concerned the form of interdict sought. The interdict sought bears to apply not only to the named respondents but also to any person having notice of the interdict. In my previous opinion, I said that there appeared to be very substantial grounds for doubting the competency of such an interdict, but referred to the opinion of Balcombe L.J. in Att. Gen. v. Newspaper Publishing plc and said that in the light of that opinion I could not at that stage exclude the possibility that a Scottish court might hold, after a full citation of authority that such an interdict would be competent in Scotland. In the further argument before me, the petitioner's position was, as I understood it, that the substantial question was whether, in a situation in which one person has been prohibited from disclosing confidential information, another person who, knowing of the prohibition, published the information would be guilty of contempt of court. If it was clear that such a person would be in contempt, apart from any general words in the interdict, there might be no need for any such words. However the English court had apparently thought that it might be better to include such words to make the position clear. The first and second respondents submitted that the observations of Balcombe L.J. were strictly speaking obiter and not expressly adopted by the other members of the court and that there was Scots authority clearly against the inclusion of wording extending the interdict beyond the named respondents. They founded particularly on Pattison v. Fitzgerald (1823) 2 S. 536. They further submitted that the law of contempt was adequate to deal with any situation which might arise. The third respondents concurred in this argument on the first two points, but adopted a more equivocal position on the issue of what conduct would amount to contempt. In my opinion, Pattison v. Fitzgerald is clear authority that it is incompetent to obtain interdict including terms such as "any other persons", as is sought in the present case. I also agree that the law relating to contempt of court and breach of interdict is adequate to deal with any improper interference with the execution of orders of the court or the administration of justice. I think, however, that it is advisable not to attempt to define, on the basis of the argument so far heard, what precise circumstances do amount to such interference.

As explained in my previous opinion, the second and third respondents had lodged caveats but were not given notice of the original application for interdict, although they did appear the next day to move for recall. There was some further discussion of the effect of the caveat and the respondents submitted that, having regard to the terms of Rule of Court 236 (b) and (c), it was incompetent for the court to grant interdict against a person who had lodged a caveat without a hearing. It was, however, agreed that the question became academic once the person had been heard in a motion for recall, except as regards the effect of any interdict between the date on which it was granted and the date of the hearing on the motion for recall. The question becomes even more academic, of course, if it is held that interdict cannot competently be sought against persons other than the named respondents. In the circumstances, therefore, I think it unnecessary to express any opinion on the question of the status of an interdict pronounced without hearing a person who had lodged a caveat.

The respondents also criticised the wording of the interdict as being too wide in that it would prohibit them from disclosing information in the possession of Mr Cavendish, whether or not they had received it from him. I think that there is force in this objection. The interdict originally sought, before amendment, was limited to information "supplied to the respondents whether by direct or indirect means by Anthony Cavendish", and, in my view, that limitation would require to be reinstated if interdict were to be pronounced. A further criticism was that it was not clear what was meant by the reference to notice to third parties in the interdict. I would, however, have read the reference to notice as requiring actual knowledge of the terms of the interdict, and so read the terminology alone does not seem objectionable. There was also some suggestion by the respondents that the petitioners could not seek interdict against them when no proceedings were being taken against Mr Cavendish himself. I was not clear as to the real bearing of this argument, but in any event I see no reason why the petitioner should seek interdict against Mr Cavendish if there is no immediate threat of him taking action to which they object.

For the reasons given earlier in this opinion, therefore, I shall refuse the application to grant interim interdict.

The petitioner reclaimed. The reclaiming motion called before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Dunpark and Lord McDonald for a hearing thereon on 15th, 16th, 17th, 18th, 22nd and 23rd March 1988.

At advising, on 8th April 1988 the Second Division refused the reclaiming motion.

LORD JUSTICE-CLERK (ROSS).—In the present proceedings the Lord Advocate is seeking interdict to prevent the respondents who are the proprietors and the editor of the Scotsman newspaper, and also any person who has notice of the interdict, from publishing certain material or information obtained by Anthony Cavendish in the course of his employment with the British security and intelligence services. The background to the proceedings is fully set forth in the two opinions of the Lord Ordinary dated 12th January 1988 and 23rd February 1988, and for me to rehearse the background in any detail would be a work of supererogation. Suffice it to say that Anthony Cavendish was a member of the British security services from 1948 to 1953. In 1987 he sought the authority of the Crown to publish his memoirs in a book. Authorisation to publish the book, entitled Inside Intelligence, was refused. Notwithstanding this refusal Mr Cavendish privately published approximately 500 copies of this book and distributed a proportion of them to individuals about 25th December 1987. According to the Lord Advocate some 279 copies of the book were distributed. It is stated that the book contains material relating to Mr Cavendish's employment in the British security service. The Lord Advocate avers that as an employee of the British security service, Mr Cavendish is under a lifelong duty of confidentiality owed to the Crown. He also avers that the book contains other material purporting to be disclosed to Mr Cavendish in breach of this duty of confidence owed by other officers of the British security service.

On or about 30th December 1987, Mr Cavendish undertook to the Crown not to distribute any further copies of the book without first giving 14 days' notice thereof. On 2nd January 1988 the Attorney General was granted in the High Court of Justice, England, an order against Times Newspapers Ltd. in the form of an injunction. The terms of the injunction are set forth in the petition at the instance of the Lord Advocate.

On 5th January 1988 the respondents published an article in the Scotsman which repeated material and information contained in Mr Cavendish's book. The respondents were asked to give an undertaking that they would not publish any material which if it were to be published in England would be in breach of the order against Times Newspapers Ltd., and they refused to give any such undertaking. Thereafter the Lord Advocate raised the present proceedings against the respondents.

It is necessary to trace the history of this litigation. Two things only need be said now. The first is that, following on sundry procedure which is described by the Lord Ordinary in his opinion dated 23rd February 1988, the Lord Ordinary on that date refused the application for interim interdict in terms of the prayer of the petition as amended. It is against that interlocutor of the Lord Ordinary that the present reclaiming motion has been taken. The other point is this. Although the prayer of the petition was not expressly directed against them, Scottish Television plc and George Outram & Co. Ltd. entered the process by way of motion and they, as well as the respondents, have lodged answers to the petition, and have opposed the application for interim interdict and the granting of this reclaiming motion.

The interdict which the Lord Advocate is seeking is in the following terms:—[his Lordship quoted the terms of the interdict sought as set out at p. 124 supra and continued.] The legal basis upon which interdict is sought is set forth in the first plea-in-law in the petition, which is in the following terms:—

"(1) The petitioner being reasonably apprehensive that the respondents will publish, disclose and distribute confidential information to the prejudice of the Crown interdict should be pronounced as prayed for."

It was not disputed that the Crown would have been entitled to seek an interdict against Mr Cavendish based on the lifelong duty of confidentiality owed by him to the Crown. The question which arises in this process is as to the right of the Crown to seek interdict against a third party who has obtained information from Mr Cavendish's book.

It appears that at earlier hearings of these proceedings, it had not been entirely clear what the Crown's position was in relation to the contents of the book. In his opinion of 23rd February 1988 the Lord Ordinary points out that it is not averred by the Lord Advocate that publication of any of the information in the book, or any information in the possession of Mr Cavendish, would directly endanger national security. Before this court junior counsel for the Lord Advocate repeated that the Lord Advocate had never suggested that the contents of the book were a danger to national security; what was being contended was that national security would be endangered if the duty of confidentiality owed by ex-employees of the intelligence services was breached. This contention was further developed by senior counsel for the Lord Advocate. As the argument became further crystallised, a distinction was drawn between the case where national security was in danger by the disclosure of the contents of a book and what senior counsel referred to as "the non-contents detriment case". According to him, the present case was a non-contents detriment case in respect that it was not the information in the book but the fact of publication by a former member of the security service which constituted the threat to national security.

It is not clear to me whether this distinction was explained as fully to the Lord Ordinary as it was to this court, but the greater part of the Lord Ordinary's opinion is concerned with the publication of confidential information, and thus appears to be directed to a case based on disclosure of the contents of the book. What weighed principally with the Lord Ordinary at the end of the day was that publication of the material information had already taken place. Thus the Lord Ordinary states:—

"For the reasons I have already given, I consider that the book has been sufficiently distributed to make it probable that any interested power will already be familiar with its contents. So far as information in the book is concerned, any damage of the kind referred to in heads (a), (c) and (f) of the petitioners' reasons above quoted will already have occurred."

It thus appears to me that the Lord Ordinary was treating the case as one where the objection was being taken to the disclosure of the contents of the book, and that he was not directing his attention to a non-contents detriment case at all.

I have some sympathy with the Lord Ordinary because initially at least it was not made clear to this court that the sole case which the Lord Advocate was seeking to make was a non-contents detriment case. Junior counsel maintained that the Crown's claim to be entitled to interim interdict in the interests of national security was based upon the following propositions: (1) It is in the public interest to maintain the principle that former employees of the intelligence services such as Mr Cavendish, are under a lifelong obligation of confidence which prevents them disclosing information obtained in the course of their employment. Unless this were so, he maintained that the intelligence services would be undermined. (2) Without the maintenance of that principle and the prevention of breaches of it, the intelligence services would be damaged. (3) Damage to the intelligence services which are charged with the protection of the state, is damage to national security. (4) Mass circulation of information disclosed in breach of the obligation of confidence injures the public interest in the maintenance of this principle.

In these circumstances he maintained that the Lord Advocate's primary argument was based upon public policy. Having regard to the terms of the foregoing propositions, and in particular the reference to the consequences of the mass circulation of information, the propositions appear to me to be related to a contents case, i.e. a case where what is complained of is the publication of information of a confidential character, and indeed that is consistent with the petitioner's first plea-in-law.

So far as I am concerned, it is the confusion between a contents case and a non-contents case which has bedevilled this reclaiming motion. In view of the fact that senior counsel for the Lord Advocate stated quite clearly that his case was a non-contents detriment case, a great deal of what the Lord Ordinary states in his opinion regarding the publication of information appears to me to be irrelevant. Having regard to the way in which the case was ultimately presented by senior counsel for the Lord Advocate, the only real issue in the reclaiming motion is a short and simple one. However, out of deference to the arguments which were deployed at the hearing of the reclaiming motion, and the views expressed by the Lord Ordinary in his opinion, I propose to express my opinion upon these issues even though my observations will be no more than obiter dicta. Since they are obiter dicta,however, it is unnecessary to deal with these matters at great length or in the detailed way in which counsel dealt with them in their submissions.

The Lord Ordinary in his opinion dated 23rd February 1988 relied strongly upon the decision of Scott J. in Att. Gen. v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805, and the opinions delivered in that case in the Court of Appeal. That case concerned the book Spycatcher and for convenience the case itself can be referred to as the Spycatcher case. Senior counsel for the Lord Advocate submitted that the Spycatcher case was a non-contents detriment case. Although that feature may have been present in the case I am of opinion that the Spycatcher case was much more than a non-contents detriment case. Scott J. at the outset of his judgment stated:—

"The Attorney General desires to prevent or restrict not only publication of the book but also publication of any comment on or report of its contents."

Subsequently, in the course of his judgment he comments at length upon the contents of Spycatcher. Accordingly it is plain that the Spycatcher case raised the issue of the disclosure of the contents of the book. The Spycatcher case was accordingly a different case from the case which the Lord Advocate is seeking to make in the present petition. In the present case, I am of opinion that the Lord Ordinary was not justified in relying as strongly as he did upon the judgments of Scott J. and the Court of Appeal in the Spycatchercase. That he did rely heavily upon the Spycatchercase is plain. At one stage of his opinion, the Lord Ordinary stated:—

"One major difference is that the relevant principles of law on which the Crown rely have been elucidated by the judgments of Scott J. and the Court of Appeal, and it is possible to weigh up the averments now made against those principles. Another major difference is that in some respects it is possible to have regard to the conclusions reached by Scott J. and the Court of Appeal after evidence has been heard."

Although assistance can no doubt be obtained from the Spycatcher case, it is important to bear in mind that it was a case where it was suggested that national security was endangered by the disclosure of the contents of the book.

In his judgment Scott J. makes it plain that in the Spycatcher case the Crown in seeking permanent injunctions was relying upon matters similar to those set forth in stat. 7 of the present petition, and in particular the matters referred to in (a) to (f). Scott J. (at p. 834) describes the case which was sought to be made to him as follows:—

"National security requires an efficient M.I.5 and unless permanent injunctions are granted M.I.5 and its efficiency will be damaged in the following ways: the morale of loyal members in the service will suffer; other members of the service may be tempted to breach duty by publishing memoirs; publishers of illegal memoirs will be encouraged; media pressure on other members of the service to reply to allegations in Spycatcher will mount; Security Services in other countries will lose confidence in M.I.5; and potential informers will lose confidence in M.I.5. In short, the permanent injunctions are sought not in order to preserve the secret character of information that ought to be kept secret but in order to promote the efficiency and reputation of M.I.5."

It must however be kept in mind that Scott J. was delivering his judgment against the background that by the end of October 1987 over 700,000 copies of the book had been published and sold in the United States of America, and a large number of copies of the book had found their way into this country. One estimate was that about 10,000 copies of the book were entering the United Kingdom every week.

The Lord Ordinary in dealing with the fresh application for interim interdict, does not appear to have adopted the approach which is normally adopted in dealing with applications of this kind. He himself appreciated that it would be logical to deal first with the question of whether there were grounds for concluding that the respondents were under any duty to the petitioner. However, instead of considering that matter, he proceeded to dispose of the case upon another ground. The Lord Ordinary's reasons for refusing interim interdict appear to be that in his view the book had been sufficiently distributed to make it probable that any interested power was already familiar with its contents, with the result that it was impossible to see that there was any reasonable risk of further damage accruing which would be prevented by a grant of interim interdict.

In my opinion, however, the Lord Ordinary ought to have approached the matter in accordance with what is recognised to be the practice in the Scottish courts. This practice was referred to by Lord Fraser in N.W.L. Ltd. v. Woods [1979] 1 W.L.R. 1294 at p. 1310. What Lord Fraser said in that case was referred to by this court in Toynar Ltd. v. Whitbread & Co. plc 1988 S.L.T. 433. It was there stressed that in Scotland the proper approach would have been for the Lord Ordinary to consider whether the petitioners had made out a prima facie case; the issue would be whether there was a case to argue and a case to answer. If there was, then the next stage would be to consider the balance of convenience.

Before the Lord Ordinary the argument appeared to be that the petitioners' case depended upon a duty of confidence. The Lord Ordinary recognised that the Lord Advocate was founding upon considerations of public policy, but the Lord Ordinary concluded that "public policy considerations have become involved only so as to restrict the Crown's ability to enforce confidentiality when other public interests are involved". Before this court, however, counsel for the Lord Advocate put public policy at the forefront of his submissions. Counsel contended that considerations of public policy entitled the Lord Advocate to the remedy which he was seeking. They submitted that where as here a lifelong duty of confidentiality was owed to the Crown by Mr Cavendish, it was public policy which restricted anyone who aided or abetted Mr Cavendish and also any third party who received information from him in the knowledge that he was under such a lifelong obligation of confidentiality. No such argument appears to have been put forward in the Spycatcher case.

Counsel on both sides of the bar conducted an interesting analysis of public policy. In Richardson v. Mellish (1824) 2 Bing. 229, Burrough J. said of public policy:—

"It is a very unruly horse, and when once you get astride it you never know where it will carry you."

In Egerton v. Brownlow (1853) 4 H.L.Cas. 1 Lord Truro said:—

"Public policy, in relation to this question, is that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed, as it sometimes has been, the policy of the law, or public policy in relation to the administration of the law."

In Naylor, Benzon & Co. Ltd. v. Krainische Industrie Gesellschaft [1918] 1 K.B. 33, McCardie J. reviewed a large number of cases dealing with public policy. As he pointed out at p. 343, one of these cases referred to the rule against "assisting the King's enemies" as a recognised head of public policy.

In my opinion, if the Lord Advocate had been in a position to say that the disclosure of information by the respondents would endanger national security, the court would, because of the considerations of public policy, have the power to stop such disclosure or publication. Indeed, I understood the respondents all to accept that the court would not be powerless to act in such an extreme situation. However, it is one thing to recognise a power in the court because of public policy to restrict the disclosure of the contents of a book; it is quite another thing to suggest that the court has power on the grounds of public policy to stop the mere publication of a book where it is accepted that the contents of that book present no danger to national security. The authorities to which we were referred on the matter of public policy were all English authorities, and there is no hint in them of considerations of public policy justifying the court in granting a remedy for what has been described in the present proceedings as a non-contents detriment case. So far as Scotland is concerned, I am not persuaded that public policy would entitle the court in Scotland to grant a remedy in such a non-contents detriment case. That being so, I need not say any more on the public policy aspect of the case.

Before the Lord Ordinary the Lord Advocate's case was treated as being based upon breach of confidence. The Lord Ordinary carefully reviewed the authorities relating to this matter and it is unnecessary for me to repeat that exercise in this opinion. The Lord Ordinary pointed out that the principles of the law in England had developed in the context of private and commercial relationships. No problem arises where the issue arises between the person who is under the duty of confidence and the person to whom the duty of confidence is owed. The problem arises where the confidential information has been communicated to a third party who knows that the information is confidential. In England the jurisdiction of the court is based not so much on property or on contract as on a duty of good faith (Fraser v. Evans [1969] 1 Q.B. 349). The view appears to be that it:—

"affects the conscience of the person who receives the information with knowledge that it has originally been communicated in confidence"

(per Sir Nicolas Browne-Wilkinson V.C. in Att. Gen. v. Guardian Newspapers [1987] 1 WLR 1248 at p. 1265). In England, accordingly, it arises from the application of equity.

The question which arose was whether under Scots law a person coming into possession of confidential information, knowing it to be confidential, became subject to an obligation arising from conscience or good faith and not referable to contract or property. The Lord Ordinary observed that the conceptual basis of the English right did not fit easily into the framework of Scots law. He stated:—

"It can, I think, at least be said that there has been no clear recognition in Scots law of a right to protect confidentiality effective against third parties who have come into possession of the information innocently."

Subsequently, however, he stated:—

"Protection of such information may be of great importance to the parties concerned and I would not be prepared to affirm on the basis of the argument advanced before me that Scots law can afford no protection to such commercial interests. The legal basis of protection may not be identical to that afforded by English law but I would hesitate to say that there is no means by which Scots law can arrive at an equivalent result."

I do not consider that it is accurate to describe persons in the position of the respondents as having come into the possession of the information innocently. I do not agree with the Lord Ordinary where he refers more than once to the respondents as "innocent third parties". Counsel appeared to be agreed that it would be more accurate to describe the respondents as having come by the information passively, i.e. they had taken no active steps to acquire the information. In my opinion, when considering whether the law of Scotland recognises a right to protect confidentiality effective against third parties, it is important to bear in mind that the respondents were third parties who have come into possession of the information with the knowledge that it had originally been communicated in confidence.

For my part I am of opinion that under the law of Scotland the person to whom the duty of confidence was owed would have a right to protect confidentiality against third parties who had received the information with the knowledge that it had originally been communicated in confidence. Although the law of confidence in relation to third parties is not fully developed, I am of opinion that there are sufficient dicta in Scottish cases to support the conclusion at which I have arrived. A number of the reported cases were decided upon the view that a right of property or a right under contract was involved, but in my opinion, the dicta are wide enough to cover a situation where no right of property or contract is involved. The courts in Scotland administer an equitable as well as a common law jurisdiction (Forrest & Barr v. Henderson (1869) 8 M. 187 per Lord President Inglis at p. 195). Brown's Trustees v. Hay (1898) 25 R. 1112 was a case where disclosure of the contents of private writings was interdicted on the ground that the pursuer had a right of property in the papers. However, Lord McLaren said at p. 1117:—

"I am of opinion that the defender was not within his rights in making the communication complained of. It is true that there was no relation of contract between the defender and the pursuers, and therefore it cannot be said that the defender in making this communication committed a breach of professional confidence. The papers of the distillery, however, came into his possession in connection with the audit of his employer's books, and for the purposes of that audit only, and the law is not so powerless as to be unable to give protection to the owners of private papers against their unauthorised publication by anyone who may happen to have access to them."

McCosh v. Crow & Co . (1903) 5 F. 670 was a case where interdict was granted against the exhibition of enlargements of photographs in the negatives of which the pursuers were held to have some right of property. However, the case was treated as one involving confidentiality. Lord Trayner said at p. 679:—

"I agree in the views expressed by the learned Judges in the English cases cited to us, that the relation between the photographer and his customer is a confidential one, and that a distinct breach of an implied term of this contract is committed when pictures for which the customer has sat are exhibited, even in the showroom of the photographer, contrary to the wish of the customer."

In that case the pursuer was held entitled to enforce his rights against subsequent purchasers of the photographic business even although there was no relationship in contract or otherwise between the pursuer and these subsequent purchasers of the business. It was apparently regarded as of significance that the subsequent purchasers had purchased the negatives in the knowledge attributed to them and all photographers that they were not entitled to sell or exhibit photographs without the consent of the subject of the photograph. It is also significant that in McCosh v. Crow & Co . reference was made to Pollard v. The Photographic Co . (1888) 40 Ch.D. 345 and in particular to the judgment of North J. In the subsequent case of William Morton & Co. v. Muir Brothers & Co . 1907 SC 1211 at p. 1224, Lord McLaren after referring to McCosh v. Crow & Co .stated:—

"This is a decision of our own Court, and from the authorities there cited, and particularly the opinion of Mr Justice North, which is quoted by Lord Moncrieff, I have no doubt that the law of England is to the same effect as our own. Indeed the laws could not well be different."

That observation is of particular importance when regard is had to Duchess of Argyll v. Duke of Argyll [1967] Ch. 302. In his judgment in that case Ungoed-Thomas J. referred to Pollard v. The Photographic Co . and other cases. He then stated his conclusion thus, at p. 322:—

"These cases, in my view, indicate (1) that a contract or obligation of confidence need not be expressed but can be implied (which, I confess somewhat to my surprise, I understood to be disputed at one stage at any rate of the argument); (2) that a breach of confidence or trust or faith can arise independently of any right of property or contract other, of course, than any contract which the imparting of the confidence in the relevant circumstances may itself create; (3) that the court in the exercise of its equitable jurisdiction will restrain a breach of confidence independently of any right at law."

In my opinion, there is ample justification for the conclusion that in this respect the laws of England and Scotland are to the same effect. Indeed I entirely agree with Lord McLaren when he observed that the laws on this subject could not well be different. Accordingly in so far as the Lord Ordinary upon this issue entertained some doubts, I find that I do not share his doubts.

As I have already observed, the Lord Ordinary arrived at his conclusion upon this case very largely upon the view that a third party recipient of confidential information is under no obligation to refrain from publishing unless the information has not already been published. On more than one occasion the Lord Ordinary appears to express the view that information ceases to be confidential once it has been published or become known. With these observations of the Lord Ordinary I do not agree. "Confidential" does not merely mean secret. In my opinion in this branch of the law the expression "confidential" relates to information which is the subject of an obligation of confidence. That obligation of confidence does not come to an end merely because the information has become known to a third party. In other words, if information is disclosed in breach of confidence, that does not bring to an end the obligation of confidence. Were that not so, no action based on breach of confidence would ever lie. With all respect to the Lord Ordinary, I am of opinion that he has arrived at his erroneous view by attaching too much weight to the decision in the Spycatcher case. In the judgments of Scott J. and the Court of Appeal, it is clear that permanent injunction was refused largely because the book and its contents had been disseminated on a worldwide scale. Scott J. concluded that there was no "obligation of conscience" on third parties since the situation now was that virtually anyone who wanted a copy of the book could obtain it. Similar views were expressed by all the judges in the Court of Appeal. Bingham L.J. stated that by the time of the trial before Scott J. the information contained in Spycatcher had ceased to be confidential since about 1,000,000 copies of the book had been published and were in circulation throughout the free world. That being so he stated, at p. 912:—

"I do not accept that an action for breach of confidence against third parties can succeed in those circumstances whatever the position as between confider and confidant. The same conclusion can be put another way. I do not think that the editors of these newspapers can be said to be subject to a duty in conscience not to publish material which is freely available in the marketplace and publishable by other newspaper editors the world over."

Sir John Donaldson M.R. said with reference to the injunction sought, at p. 885:—

"This is an equitable remedy. Equity in this context equates with fairness and common sense. The publication which has already taken place has destroyed all secrecy as to the contents of Spycatcher."

Subsequently he stated:—

"In this new situation in which all secrecy has gone, no injunction could be granted if based upon the secrecy factor. It would have no weight and would be overwhelmed by the legitimate public interest in being fully informed."

I detect in the Lord Ordinary's opinion a failure to appreciate that whether publication has destroyed all secrecy and the obligation of confidence itself depends upon the extent of the publication. At no stage in his opinion does the Lord Ordinary deal adequately with the extent or degree of publication.

That it is a question of degree was recognised by Sir John Donaldson M.R. in the Court of Appeal [at p. 868]:—

"As a general proposition, that which has no character of confidentiality because it has already been communicated to the world, i.e. made generally available to the relevant public, cannot thereafter be subjected to a right of confidentiality (O. Mustad and Son v. Dosen [1964] 1 W.L.R. 109). However, this will not necessarily be the case if the information has previously only been disclosed to a limited part of that public. It is a question of degree. (Franchi v. Franchi [1967] R.P.C. 149, at pp. 152-153 per Cross J.)"

There is all the difference in the world between a case such as Spycatcher where about 1,000,000 copies of the book had been published and distributed and the present case where such publication as there had been was clearly limited. There is no question in the present case of the book having become generally available to the public. It has been disclosed only to a limited part of that public. According to the averment added by way of amendment, only 279 of the 500 copies were distributed. Although nothing has been said as to who received these 279 copies, on any view it is a limited part of the public only who had had access to the book. Accordingly, if this had been a "contents case", I would have regarded the case as being more similar to the Spycatcher case at the stage of the interlocutory injunction than to the Spycatchercase at the stage of the application for permanent injunction. In these circumstances, if it had been a contents case, a strong case for interim interdict might have been made on the basis of preserving the status quo (Att. Gen. v. Guardian Newspapers Ltd .).

Two other matters should be mentioned. In both his opinions the Lord Ordinary refers to "freedom of the press". Before us, however, counsel for the respondents accepted that the press as such did not have any higher freedom than the freedom of speech which is generally enjoyed in this country. I respectfully agree with Dillon L.J. in the Spycatcher case when he stated at p. 890:—

"The media have greater powers of disseminating information widely than other people have, but it has not been suggested by any party to this appeal that the media have any special privileges in law in the matter of freedom of speech. They have the same rights of free speech as anyone else, subject to the same constraints."

In my opinion it is preferable to refer to freedom of speech rather than freedom of the press because referring to freedom of the press may suggest that the press have greater rights than the remainder of the general public enjoy in this country.

The second point is this. The Lord Ordinary refers in his opinion on many occasions to "the balancing exercise" which the court requires to carry out. In particular he refers to the approach described by Lord Widgery C.J. in Att. Gen. v. Jonathan Cape Ltd . [1976] Q.B. 752. In my opinion, however, in Scotland at the stage of interim interdict the balancing exercise to which the Lord Ordinary refers would only require to be carried out once it had been determined that the petitioners had made out a prima facie case and when regard was being had to the balance of convenience. For reasons which I shall explain presently, I have come to the conclusion that it is unnecessary in the present case to carry out a balancing exercise at all.

Having set forth these comments upon the opinion of the Lord Ordinary I now turn to consider the merits of this reclaiming motion. Although I have been critical of the Lord Ordinary's approach in this case, it is only fair to say that he no doubt approached the matter in the light of the representations made to him by counsel. Whether or not the argument for the Lord Advocate before this court was different to the argument presented in the court below, it certainly appears that in this court the emphasis had changed. What was most important, however, was that counsel for the Lord Advocate made it absolutely clear that the case was being presented as a non-contents detriment case. It is as such that I now turn to consider the case for the Crown.

I share with counsel for the respondents some difficulty in understanding how this case can properly be treated as a non-contents case. The first three sentences of stat. 7 of the petition would suggest that objection is being taken to the contents of what may be published. The first plea-in-law for the petitioner also suggests that. Moreover, having regard to para. (b) of the proviso referred to in the prayer of the petition, it appears that the Crown are now agreeable to the publication of approximately two-thirds of the book, but that they are seeking to prohibit the publication of the remaining one-third. That would also suggest to me that the case was a contents case. If the argument were that the fact of publication would be harmful to national security, then logically one would expect the Crown to be seeking to prevent publication of the whole book. The fact that the Crown are now agreeable to the publication of about two-thirds of the book really makes their contention that this is a non-contents case barely tenable. Counsel for the petitioner however was quite adamant that the Crown's position was that this was a non-contents case.

Treating this as a case based on breach of confidence, it is necessary to examine the Lord Advocate's averments to see whether he has set forth a prima facie case. In this connection I agree with the Lord Ordinary that the Lord Advocate like any other petitioner must set forth a case in his pleadings which is at least prima facie relevant. I also agree that there is no onus on the respondents to justify their publishing the contents of the book. The basis of the Lord Advocate's case is set out in stat. 7 of the petition. [His Lordship quoted stat. 7 as set out supra at p. 123, from the words "Disclosure or publication" to the end, and continued.] Similar points were put forward in the Spycatcher case, but these required to be considered in the context of a case where there had been such a degree of publication that the information had ceased to be confidential.

In the present case the Lord Ordinary concluded that the considerations referred to in heads (a) to (e) did not appear to be relevant. He also appears to have concluded that head (f) was not supported by relevant averments. Although for different reasons from those which commended themselves to the Lord Ordinary, I am of opinion that the Lord Ordinary arrived at the correct conclusion on this critical issue. Bearing in mind that this is avowedly a non-contents case, I am of opinion that the Lord Advocate has failed to make out a prima facie case. Heads (a) to (f) might have been relevant if this had been a contents case. This is because heads (a) to (f) are all expressed as being referable to information, i.e. the contents of the book. But since this is a non-contents case, they are irrelevant. This can be seen clearly if each of the heads is examined separately.

So far as (a) is concerned, it could not be contended that foreign security services would be likely to lose confidence in the ability of the British security and intelligence services to protect classified information unless it were being asserted that the book contained classified information. It is nowhere averred that there is classified information in the book, and in the context of a non-contents case this could not arise. So far as (b) is concerned the same comment can be made. The same is true of (c) since "similar information" must be a reference back to classified information. The same is true of (d). So far as (e) is concerned what is said to be apprehended is that the media would exert pressure upon members or ex-members of the British security and intelligence services to give their views "on matters referred to by Mr Cavendish". This must be a reference to what is in the book, and cannot be material to a non-contents case.

What appears to lie behind (a) to (e) is that if Mr Cavendish is allowed to publish his memoirs there will be a loss of confidence in the British security and intelligence service and a risk of further disclosures. One can readily understand that once it is known that there has been disclosure by Mr Cavendish, these results will ensue. The trouble is that it is now known widely that Mr Cavendish has made these disclosures and accordingly the anticipated results must have occurred. That being so, there is no way in which the loss of confidence referred to and the reduction in morale can be averted by an order of the court. I would stress that in this context it is not the degree of publication which is important but the fact that there has been publication at all. As junior counsel for the first respondents put it:—

"Once the leak occurs, the damage is done."

As soon as it becomes known that there has been disclosure or publication on the part of Mr Cavendish, the damaging consequences referred to in paras. (a) to (e) are inevitable. Paragraphs (a) to (e) might well have been convincing considerations if an interdict were being sought before any publication or disclosure by Mr Cavendish had taken place. However, since such publication and disclosure have taken place, granting interdict now would indeed be closing the proverbial stable door after the horse had bolted. I would only add, under reference to (c) and (d), that I doubt in any event whether the court would be justified in granting interdict if the purpose of the interdict was not to stop a wrong but was to deter others and to maintain morale. On this aspect I respectfully agree with what Lord Oliver said in Att. Gen. v. Guardian Newspapers Ltd . [1987] 1 WLR 1248 at p. 1318.

So far as (f) is concerned it appears to me that this head would only be relevant in the context of a contents case. It clearly envisages publication of the contents of the book which might then enable the reader to learn something about the methodology, personnel and organisation of the British security and intelligence services. But we know nothing about the contents of the book, and there is no suggestion that it contains information on these matters. In the context of a non-contents detriment case, I am of opinion that head (f) can have no proper relevance, and counsel for the petitioner appeared ultimately to recognise this.

It follows that in my opinion the Lord Ordinary was well-founded in declining to grant interim interdict in this case. On the issue of interim interdict one further matter should be mentioned. In Toynar Ltd. the court observed:—

"Where matters of law are raised, it is neither necessary nor desirable for any concluded decision to be made upon them at the stage of considering the making of an interim order."

In the present case however it was accepted by the Crown that at the stage of seeking permanent interdict they would be in no better position than they were now. The Crown did not suggest in this case that the position might be materially altered by any further adjustment of the pleadings, and accordingly, the Lord Ordinary was fully entitled to reach the conclusion that the particular heads upon which the Crown relied were indeed irrelevant. Likewise this court is entitled to arrive at the same conclusion. I recognise that a temporary injunction is in existence in England restraining disclosure and publication of material or information obtained by Mr Cavendish concerning the British security and intelligence services. It may be unfortunate for the Crown if they cannot obtain an interim interdict in similar terms in Scotland, but the court in Scotland cannot grant an interim interdict when the Lord Advocate as petitioner has failed to make out a prima facie case on the pleadings.

I would only refer to two further matters. Towards the end of his opinion the Lord Ordinary dealt with the form of the interdict sought and the question of whether the interdict was worded too widely. I find myself in complete agreement with what the Lord Ordinary has said upon these two matters.

In Att. Gen. v. Newspaper Publishing plc [1987] 3 W.L.R. 942, Balcombe L.J. recognised that practical problems would arise if the injunction were not made binding on the world at large. Counsel for the petitioner submitted that this was a problem which had arisen as a result of advances in modern technology. He submitted that if an order were to be made it should be made against the respondents "or any person having notice of said interlocutor". The Lord Ordinary regarded Pattison v. Fitzgerald (1823) 2 S. 536 as authority for the proposition that such an order would be incompetent. In my opinion the Lord Ordinary was well-founded in reaching that conclusion. In my opinion, in Scots law, there is no justification for the courts pronouncing an order of interdict against named respondents "or any person having notice of said interlocutor". I fully appreciate that if interim interdict were to be granted without the addition of these words, the position of the petitioner might be difficult in relation to persons other than the respondents who might then seek to disclose or publish the material in question. Whether or not the law of contempt would be adequate to deal with that situation is not a matter upon which it is necessary for me to express any concluded opinion. It is clear however that to pronounce an interim interdict against named respondents "or any person having notice of said interlocutor" would conflict with the recognised practice and procedure in Scotland in relation to caveats. In my opinion the recognised practice and procedure in relation to caveats is a further reason for concluding that an interdict against "any person having notice of said interlocutor" is not a form of interdict which the court in Scotland would be justified in pronouncing.

In the penultimate paragraph of his opinion the Lord Ordinary deals with the submission that the wording of the interdict was too wide in that it would prohibit the respondents from disclosing information in the possession of Mr Cavendish whether or not they had received that information from him. I agree with the Lord Ordinary that there is force in that objection and that if interim interdict were to be granted a limitation in the terms which the Lord Ordinary suggested would be required to be expressed in the order of the court.

In all the circumstances I would move your Lordships to refuse the reclaiming motion and to adhere to the interlocutor of the Lord Ordinary of 23rd February 1988.

LORD DUNPARK .—This is a petition presented by the Lord Advocate for interdict against the Scotsman newspaper and its editor from publishing certain material. Interim interdict was originally pronounced against these respondents in terms which prohibited any person having notice of the interdict interlocutor from publishing the material. Thereafter Scottish Television and the publishers of the Glasgow Herald newspaper moved unsuccessfully for recall of the interdict against them and thereafter lodged answers to the petition as additional respondents. On a rehearing the Lord Ordinary refused to grant interim interdict and the Crown has reclaimed that interlocutor dated 23rd February 1988.

At the outset of this debate the basic question for us appeared to be whether the law will protect the further dissemination of information acquired by an ex-member of the intelligence services of the United Kingdom in the course of his employment as a member; but as the case proceeded it became apparent that there was a radical distinction between information the disclosure of which was likely to damage national security and information that would not. It is not disputed that the Crown would have been able to obtain a court order interdicting Mr Cavendish, the author of this book, from publishing it and issuing copies of it to anyone. This is because the secret nature of the work which Cavendish did as a member of this country's security services imposed upon him the duty of not disclosing to anyone any information which he acquired in the course of and relating to that employment. I agree with those judges in England who have said that ex-officers of the secret service were bound by a lifelong duty of confidence not to disclose information which they acquired in the course of that employment and relating to it. I need only refer to the opinion of Scott J. in Att. Gen. v. Guardian Newspapers Ltd. (No. 2) [1988] 2 W.L.R. 805 at p. 854, supported by the Court of Appeal. I refer to their Lordships' opinions, and to the opinions of Sir John Donaldson M.R. at p. 870, to Dillon L.J. at p. 898 and Bingham L.J. at p. 903. Dillon L.J. puts that duty in colloquial terms:—

"I have no doubt at all that there is a public interest in national security which requires that former officers in the Security Service should not be allowed to trumpet abroad as much as they choose of their reminiscences of their time in the Security Service and of the Service's activities in those times. The same public interest must equally preclude national newspapers from trumpeting abroad by licence from him as much as they, the newspapers, choose of the disloyal security officer's reminiscences published by him in breach of duty. Where national security is involved, the press can have no unfettered right to publish state secrets."

Now this book by Cavendish is entitled Inside Intelligence. I understand that it is based upon his life in M.I.6. The government refused Cavendish the licence to publish this book. I say licence because he did not have the right to do so. Notwithstanding this refusal, Cavendish arranged for the printing of 500 copies of the book, of which, we are informed, 279 were issued by him to persons unknown, with the exception of Mr Tam Dalyell, who would seem, from the article by Tom Crainey in the edition of the Scotsman on 5th January 1988, to have been in contact with Mr Crainey in relation to this book. According to this article Mr Dalyell's view is that the government's motive in "taking the unusual course of seeking court injunctions to ban press reports on Cavendish's book was not to protect national security but to restrict press freedom"; but it is for this court now on the averments made in this petition of the Lord Advocate to decide whether it is right to allow the Scotsman, the Glasgow Herald and Scottish Television to publish extracts from this book and no doubt to comment upon it and, it may be, criticise the fact that an ex-member of the security services has been free, in breach of his duty to Her Majesty's Government, to publicise information which he obtained in the employment of the service.

At this interim stage there is a question, simple to postulate, which at first seemed difficult to answer, namely, whether the civil law of Scotland is powerless to prevent third parties from publishing information which they have obtained in the knowledge that it was first published by an author who published it in breach of the obligation of confidence which he owed, as in this case, to his employer. The answer to that question depends, in my opinion, upon the nature of the contents of this book. However counsel for the Scotsman newspaper and its editor submitted that this question must be answered in the affirmative. They conceded that the Crown would have been entitled to obtain an interdict against Cavendish from publishing memoirs of his experience in the government's intelligence service, but their proposition was that, once Cavendish had published this book, its contents ceased to be confidential and that the law could not prevent any person who obtained a copy of his book from further publication of its contents. This seems to me to be the reason why the Lord Ordinary refused interdict.

The position in this case is that Cavendish sent 279 copies of his book, which it is not denied is based upon his own experiences in the intelligence service, to persons selected by him. He knew that the government had refused him permission to publish it. He therefore knew that the government's policy was that members or ex-members of security services should not publish memoirs based on their lives in the services. Nevertheless, Cavendish issued 279 copies of it. Counsel for the respondents submitted that there was no trace in the law of Scotland of any principle which precluded further publication of confidential information once it had been published by the original confidant.

I asked junior counsel for the Scotsman if there was no place in our law for such a principle. I think that the question that I put was: is it not a matter of national security that the inner workings of our secret service should not be disclosed to the public? Junior counsel's answer was that it was desirable that such information should not be disclosed to the public, but that, as 279 copies of this book had been issued, the information had been published and was therefore no longer confidential.

I do not agree. If any part of the contents of this book had disclosed confidential information about the work of the secret service, I am of opinion that the court would not have been powerless to prevent further disclosure; but in the circumstances of this case that is obiter dicta because, as only became clear to me late in the speech of senior counsel for the Crown, he did not contend that this book contained any information which per se was likely to be prejudicial to national security. For the sake of brevity I shall call information liable to damage national security "guilty" information. This case was, as counsel called it, "a non-contents case". That is to say that the contents of the book were per se "innocent", in respect that there was nothing in the contents of the book which would damage national security. So it became clear that the purpose of the lengthy arguments submitted by Crown counsel on public policy was to establish a principle that public policy should prohibit all publication of material based upon the personal experiences of a member or ex-member of our security services, whether or not that material disclosed any state secrets, if I may put it that way—whether the material in the book was "innocent" or "guilty".

Like others before me I gratefully accept the rules stated by Lord Widgery C.J. in Att. Gen. v. Jonathan Cape Ltd . [1976] Q.B. 752 at p. 770:—

"The Attorney- General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that publication be restrained, and (c) that there are no other facets of the public interest contradictory of and more compelling than that relied upon."

Interim interdict will only be granted if the court is satisfied that there is, first, a case to try and, secondly, that the balance of convenience favours interdict. So the first question for us is—do the Crown's averments demonstrate a prima facie case? The material averments are made at the beginning of stat. 7 of the petition as follows:—[his Lordship quoted the terms of stat. 7 as set out supra, omitting heads (a) to (f), and continued.] There follows specification under six heads (a) to (f), but the contention in the averments is that the nature (the emphasis is mine) of the material and information contained in this book is such that any further publication of its contents by the media will be prejudicial to national security. So far, so good; but senior counsel for the Crown expressly conceded that none of the contents of the book per se would be detrimental to national security: they were therefore innocent. The Crown objection is to the further spread of innocent contents of the book, but I cannot see how further publication of any of the apparently innocuous contents of the book can be detrimental to national security. Head (a) refers to the protection of classified information, but the fact of publication and distribution of the book by Cavendish in breach of confidence cannot convert innocent information into information which is classified as "confidential".

The result of the manner of presentation of the Crown case is that the Crown does not seek to protect confidential information but to prevent further publication of what I have called "innocent" information, solely on the ground that this information was published by Cavendish in breach of his duty not to publish any facts gleaned from his experiences in the security services, and notwithstanding the fact that the contents of this book were not per se prejudicial to national security. So, although the distribution of the book by the author was in breach of his duty to the state, that breach does not relate to the contents of the book. This book, in my opinion, cannot be deemed to be stamped "confidential" because the information contained therein is not, as the result of the Crown presentation, in any sense confidential. The contents per se are not said to be detrimental to national security. Accordingly the protection of national security is not a ground which warrants the grant of interdict to prevent further publication of innocent information.

All through the presentation by Crown counsel of their argument on public policy, I was unable to grasp the importance of this principle to this case until it became clear in senior counsel's speech that the Crown did not contend that there was anything detrimental to national security in the contents per se of the book. Only then did it become apparent to me that the Crown sought our aid to stop, what may become a habit, ex-members of the security services publishing their memoirs, which may well contain nothing but a narrative of their social life in the service.

Senior counsel for the Crown founded upon a statement about public policy by Lord Truro in Egerton v. Earl Brownlow (1853) 4 H.L. Cas. 1, at para. 196:—

"Public policy is that principle of law that holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed, as it sometimes has been, the policy of the law or public policy in relation to the administration of law."

Counsel also referred to a definition of public policy in Vol. 4 of Words and Phrases Judicially Defined and to other examples of the judiciary having found new heads of public policy. For example, a testamentary condition which would divest a legatee if he entered the naval or military services of the Crown—Reversionary and General Securities Co. Ltd. v. Hall, in reBeard [1908] 1 Ch 383—and the examples given by McCardie J. in Naylor, Benzon & Co. Ltd. v. Krainische Industrie Gesellschaft [1918] 1 K.B. 33 at p. 342. While I agree with McCardie J. that public policy "must fluctuate with the circumstances of the time" and with his statement of principle at p. 343:—

"What is injurious to the interests of the public is void on grounds of public policy"

, I am of opinion that the interests of the public cannot reasonably be said to be injured by the further dissemination of the memoirs of an ex-security officer, the contents of which are not said to be in any way detrimental, either directly or indirectly, to national security. In this situation the freedom of the press must be predominant. It is not the publication of prejudicial contents which the Crown seeks to protect, but the further publication of innocent contents. While it may be highly undesirable that members or ex-members of the security services should publish memoirs of their lives in the service, I am unable to stretch public policy to the extent of prohibiting the media from further publication of memoirs that have been published and which the Crown concedes disclose no information which would be prejudicial to national security. If the Crown can persuade Parliament to prohibit such publication, that is one thing; but in this case I have no doubt that the freedom of the press is the predominant public interest.

I regard the conduct of Cavendish in publishing these memoirs against the wishes of his ex-masters as thoroughly reprehensible, but I agree with your Lordship in the chair that interim interdict must be refused.

As I have dealt with the crux of the case, I was tempted to go no further, but in deference to the submissions made by all counsel, on the extent to which information which was truly confidential could be relayed from person to person, I shall express my own opinions, although they are no part of my ratio decidendi.

If this book had contained "guilty" information which included the revelation of state secrets, then my view would have been that it would have been deemed to bear the stamp "confidential". The fact that such a book had been issued in breach of a duty of confidence would not have eliminated that stamp. It would have followed that anyone who acquired a copy of the book in the knowledge that it was issued by the author in breach of that duty and contained guilty information, could have been prohibited from further publication of any of its contents.

It is abundantly clear from the large number of English cases cited to us that the English courts are not powerless to grant injunctions to prevent publication or further publication of confidential information by third parties and that they now regard this power as an equitable one (see e.g. Att. Gen. v. Jonathan Cape Ltd ., per Lord Widgery C.J. at p. 769). Equity has always been part of the common law of Scotland, and our law is not so sterile as to be incapable of providing a remedy to prevent the publication of information which the court is satisfied will be prejudicial to national security.

After I had been surprised by junior counsel for the Scotsmaninforming me that there was no trace in Scots law of a principle that the party to whom a duty of confidence was owed was entitled to a legal remedy to prevent the further publication by third parties of confidential information which had been imparted to them as a result of original publication in breach of the duty of confidence, I did some personal research. There is a passage in Bell's Commentaries (7th edn.), i, 111–112, which demonstrates that the law of Scotland will interdict the recipients of private letters from communicating their contents to others, not upon the basis of any contract between the correspondents, but upon the basis that the writer did not intend or anticipate that the contents of his private letters would be disclosed by the recipients and that "the understood or implied condition of the communication [the emphasis is mine], the implied limitation of the right conferred, that such communications are not to be published". This passage was quoted with approval by Lord Craighill in White v. Dickson (1881) 8 R. 896 at p. 900. The cases of Abernethy v. Hutchison (1825) 3 L.J. (Ch.) 209 are also of interest relating to the rights of university professors to prevent publication of their lectures. Although these cases should probably be regarded as decided upon the proprietary right of the author to prevent further publication, they are nevertheless of interest to show that the fact that there was no trace of precedent did not prevent the court from ordering that there should be no further publication. Legal principles are capable of being developed and applied by the courts to new circumstances, and there are numerous examples of that in our law reports from at least as far back as Morison's Dictionary of Decisions.

It is true that the author in the present case has not attempted to prevent his book from being publicised to the world and seems unlikely to do so but, as he owed the duty to the state not to publish, why should the court be powerless to prevent the dissemination of confidential matter, which was published in breach of confidence, to the world at large? For once the subject matter is divulged by the Scotsman or Glasgow Herald newspapers or Scottish Television, it is at large. But the court will not intervene to prevent further publication of matter which, although disclosed originally in breach of a duty of confidence, is so inconsequential that it does not materially affect anyone's interests.

I have hesitated before commenting on the Lord Ordinary's opinion in this case because we have reached the same conclusion as he did, but by what seems to me to be a substantially different route. As much of the six days of debate that we heard was spent in considering the Lord Ordinary's opinion, I have decided that it is proper for me to express my views upon it lest at some future date "a contents case" should arise. By "contents" I mean a case in which there has been some publication of information which the Crown relevantly aver is likely to damage national security, whether directly or indirectly, and seek to prevent further publication of that information.

It does not appear from the Lord Ordinary's opinion that it was made plain to him that this was "a non-contents case", for he has drawn no distinction between innocent information which has been disclosed in breach of a duty of confidence and information so disclosed which is, or may be, prejudicial to national security. While he admirably summarises the principles which emerged from the opinions of their Lordships in the Court of Appeal in the Spycatcher case, he later says:—

"I see nothing in the authorities which supports the proposition that the right to protect confidential information has become a right to protect information because it belongs to a class which should be kept confidential."

The distinction to which I have referred is not apparent from this statement. The specialty in this case, as presented to us, is that there is a marked difference between confidential information which should not have been disclosed because it is of the kind that is likely to make inroads upon national security and confidential information which should not have been disclosed, but of which the contents are not likely to affect national security. The only kind of confidential information with which we are concerned in this case is the latter.

In his opinion the Lord Ordinary summarises under six heads (a) to (f) the prejudicial effect upon national security which the Crown submits further publication will have. He notes that these are very similar to the grounds relied on by the Attorney General in the Spycatcher case, but he brushed them all aside on the ground that, in his opinion, the contents of Inside Intelligence have ceased to be confidential as the result solely of the issue of copies of the book by Cavendish. That is the ratio decidendi of his refusal of interdict, without making the distinction between innocent and guilty information which I have made. It is obvious from his opinion that he considers that information can only be confidential if "it has not been already published". The corollary of the Lord Ordinary's proposition may be that, if any ex-member of the security services issues the manuscript of his memoirs to the press, the Crown would not have been entitled to interdict the press from spreading the contents abroad, however prejudicial the contents may be. Whether or not that follows from the Lord Ordinary's proposition that, if confidential information is disclosed to a number of persons, it ceases to be confidential, the proposition itself is wrong. It is contrary to the views expressed by all their Lordships in the House of Lords in Att. Gen. v. Guardian Newspapers Ltd . [1987] 1 WLR 1248. Lord Brandon of Oakbrook, Lord Templeman and Lord Ackner each decided that it was necessary to continue the injunction against the respondent newspapers because the Crown had an arguable case for the protection of the secrecy of British security services. Their Lordships who dissented did so only on the grounds that Wright's book had been published so extensively that freedom of the press outweighed the further prevention of publication. As Lord Bridge said at p. 1283:—

"The watershed… came with the publication of Spycatcher in the United States of America"

: and at p. 1286:—

"But I can see nothing whatever, either in law or on the merits, to be said for the maintenance of a total ban on discussion in the press of this country of matters of undoubted public interest and concern which the rest of the world knows all about and can discuss freely."

At p. 1321 Lord Oliver said:—

"Once information has travelled into the public domain by whatever means and is the subject matter of public discussion in the press and other public media abroad… I find it unacceptable that publication and discussion in the press in this country should be further restrained."

The facts of this case are very different from the facts in Spycatcher. There has been no public publication of Inside Intelligence. 279 copies only were issued by the author to persons selected by him. The book is not on the open market anywhere for sale. The rest of the world does not know all about its contents. If this had been a contents case, the question would have been which of the public interests should be given priority, the protection of national security or the freedom of the media to report on matters of public interest. At what stage of publication guilty information would lose its right of protection from further publication must be a question of degree.

I do not propose to refer to all the statements of opinion by the Lord Ordinary with which I disagree, but he states more than once that the right of the Crown to protect confidential information is no different from that of a private citizen. Now I disagree with that statement, because I do not see how a private citizen could obtain a court order preventing the publication of information which he alleged should not be disclosed on the grounds of national security, when the Crown did not make that claim. I would not call that "a special right" of the Crown, because the right per se of the Crown to object to the disclosure of confidential information is no different from the right of a citizen, but in the enforcement of that right the Crown alone may plead that disclosure would prejudice the preservation of national security. It is the duty of the Crown alone in the interests of the state to do its best to maintain the secrecy of state secrets. That duty, in my opinion, arises in relation to the disclosure of information which relates to the practical operation of what is known colloquially as the secret service. Again I disagree with the Lord Ordinary's statement that "there is nothing in the authorities cited to me to justify any suggestion that the position of third parties should be any different when government information is concerned", because the protection of national security is the business of the government. The Lord Ordinary restricts this right and duty of the Crown "to protect information which directly [the emphasis is mine] affects national security", and correctly states that the Crown does not rely on direct effect in this case; but, in my opinion, it would not follow in a contents case that information which directly affects national security cannot be protected.

As the Crown does not plead that the contents of this book disclose any particular state secrets, the question is whether any of the heads (a) to (f), if proved to result from publication in the press and other media, would be materially detrimental to the future functioning of the security services. The Lord Ordinary has dismissed heads (a) to (e) as irrelevant because "the information has already been published", and he does not seem to have been directed to the question whether widespread publication by the respondents would be likely to be detrimental to the functioning of those services. Counsel for the respondents are probably correct in their criticism of head (c), namely, that interdict against specific persons or bodies should not be granted for the purposes of deterring other employees in these services from publishing information about the inner workings of these services, but one or more of the other heads may warrant interdict. The Lord Ordinary dismissed head (f) as lacking in specification, but my view is that in a contents case it would have been self-evident. However, head (f) was expressly discarded by senior counsel for the Crown upon the ground that he did not claim that the book contained any "information about the methodology and personnel and organisation of the British security and intelligence services." He said that he did not know what was in the book.

The Lord Ordinary seems to attach weight to the fact that the contents of this book came into the hands of the respondents "innocently". By "innocently" I take him to mean that they did not set out to acquire possession of the book but that a copy was given to them by someone. In my opinion it matters not how the contents of a guilty book came into the possession of third parties provided that it is plain from the contents that state secrets were disclosed. In that event further publication would obviously be prejudicial to national security. The wider the spread of state secrets, the greater the damage to national security.

The Lord Ordinary, having refused interim interdict upon the ground that in his erroneous opinion there had been sufficient publication of the contents to deprive them of confidentiality, went on to conduct his own balancing exercise. My criticism of the manner in which he conducted this is that, having decided that the extent of the publication of Inside Intelligence was sufficient per se to deprive the contents of the protection of confidentiality, he seems to have approached the balancing exercise from that erroneous starting point. I can find no basis for his statement:—

"in accordance with the general acceptance of the Court of Appeal in the Spycatcher case that there is a predominant[the emphasis is mine] public interest in freedom of speech".

As I read the opinions in the Court of Appeal their Lordships considered the balancing exercise conducted by Scott J. and concluded that he had correctly decided that the worldwide dissemination of the book tipped the scales in favour of freedom of the press against national security. Whether the one or the other should predominate depends upon the particular circumstances of the case.

The inferences which the Lord Ordinary draws "that the book has been sufficiently distributed to make it probable that any interested power will already be familiar with its contents" and that "any damage of the kind referred to in heads (a), (c) and (f)… will already have occurred" seem to me to be unwarranted. The publication so far is very limited. The Lord Ordinary's view is that:—

"It is impossible to see that there is any reasonable risk of further damage accruing which would be prevented by a grant of the interdict sought"

, but I can see that this is a corollary of his opinion, with which I have expressed disagreement, that the publication to date has been so extensive as to put the contents of the book in the public domain. Finally, he accepts that "actual" danger to national security may warrant interdict, but in that context he seems to me to be saying that only "direct" danger will warrant it. That seems to be entirely consistent with the view which he has expressed earlier, in my opinion erroneously, that the Court of Appeal in the Spycatcher case accepted that "there is a predominant interest in freedom of speech".

At the end of the day senior counsel did not deny that the two public interests, namely, national security and freedom of the press, had to be weighed, the one against the other, but he submitted that national security must always prevail over the freedom of the press. I consider this to be an oversimplification of the question for, if the contents of this book had been alleged to be guilty contents, it would then have been necessary for us to endeavour to assess the degree of damage already caused by the degree of publication and to decide whether that damage was so great as to render any further damage insufficient to outweigh the right of the media to disclose and discuss the contents of the book. However, that exercise is unnecessary in this case because national security is not a ground which warrants interdict against the further publication of innocent information.

The terms of the interdict sought were said to be much too wide. Its terms are similar to those of the injunction granted on 15th January 1988 by Kennedy J. against the Times newspaper. It is unfortunate that the contents of this book may now be further publicised in Scotland but not in England, but I do not know if counsel in England presented the case to the court as a non-contents case. All I would say about the terms of the interdict sought is that I agree with the Lord Ordinary that Pattison v. Fitzgerald (1823) 2 S. 536 is clear authority that it is incompetent to grant an interdict against "any other persons" who are not parties to the cause. It is contrary to the principles of the law of Scotland that the court should make a prohibition order against persons who have no knowledge that it is being sought and therefore have no opportunity to appear to oppose it.

LORD MCDONALD .—In this petition the Lord Advocate, on behalf of the Crown, initially sought to interdict the Scotsman newspaper and its editor from publishing information obtained by a former officer of the British security and intelligence services named Cavendish. The terms of the interdict sought, however, bore to extend to any other person having notice of the interlocutor to be pronounced. An injunction in similar terms had already been granted to the Crown against The Times Newspapers Ltd. by the English court on 2nd January 1988. Notwithstanding this the Scotsman published certain material which was the subject of that order on 5th January 1988. They were asked to give an undertaking not to publish further such material. Although such undertakings had been given on their behalf on previous occasions, on this occasion they refused to give it. The result was the present petition for interdict. It has obviously and understandably been prepared in haste. A motion for interim interdict was heard by the Lord Ordinary in an emergency sitting outwith normal court hours on 5th January 1988. The Scotsman were represented having lodged a caveat. The Lord Ordinary granted interim interdict substantially in the terms sought.

Scottish Television plc and George Outram & Co. Ltd. (representing inter alia the Glasgow Herald newspaper) both had caveats lodged but as they were not specifically named in the petition as respondents they were not represented at the hearing before the Lord Ordinary on 5th January 1988. When S.T.V. became aware of the terms of the Lord Ordinary's interlocutor they immediately entered the process by minute and enrolled a motion for its recall. This was heard by the same Lord Ordinary at another emergency sitting on the following day, viz. 6th January 1988. At this point the Glasgow Herald entered the process and associated themselves with the motion for recall. The Lord Ordinary refused the motion. S.T.V. and the Glasgow Herald are parties to the present reclaiming motion as quasi-respondents. They would be described more accurately as minuters. Their interest to appear is obvious and valid, viz. they claim to be persons having notice of the interlocutor. By intervening in this way, however, they disentitle themselves from arguing that the interim interdict cannot apply to them because they did not know about it. On the other hand this does not relieve the petitioner from convincing the court that the terms of the interdict sought are not too wide.

On 12th January 1988 the Lord Ordinary issued his written reasons for the decisions he had reached on the two hearings he had held on 5th and 6th January. At the conclusion of his careful judgment he said inter alia that, on considering the matter at more leisure he found it increasingly difficult to see that the protection of interim interdict was necessary or valuable in the circumstances. This was in the context that the Cavendish material had been widely published (which it had not). On that basis his Lordship regarded continuation of the interim interdict as an open question. He said that he favoured the view that it constituted an undue interference with the discussion of matters of public interest and should be recalled. This was greeted with euphoria by certain organs of the media. The judge, it was said, had changed his mind and had come down on the side of a great constitutional principle of democracy called freedom of the press. He had, in fact, done nothing of the kind, and the attempt by those concerned to capitalise on this at the interim stage was, in my view, irresponsible. I note with interest that at the interim stage of the Spycatcher case (Att. Gen. v. Guardian Newspapers Ltd . [1987] 1 WLR 1248) the House of Lords were critical of the attitude of the press when their Lordships' order was pronounced. Lord Ackner described it at p. 1305 as "press hysteria". His Lordship went on to say:—

"The press do not wish the public to exercise a sense of proportion. The case has therefore to be presented as open and shut, admitting of no possible argument, and of only one decision—that favourable to the press. This one-sided reporting is an abuse of power and a depressing reflection of falling standards and values."

These comments, in my opinion, have relevance to the present proceedings at all stages. In a case to which the press are parties, it is particularly important that any reportage and comment should be objective, accurate and non-selective. In the present case I am not satisfied that that standard has always been maintained throughout the proceedings. It is against that background that I wish the conclusion I have reached to be understood. It is not to be regarded as a victory for the so-called freedom of the press.

We have reached 12th January 1988, the date of the Lord Ordinary's first judgment. The next significant event was that on 15th January 1988 the Attorney General, on behalf of the Crown in the English action against The Times Newspapers Ltd. offered by way of concession to permit publication of certain of the Cavendish material. I do not repeat in detail the history of the matter. Cavendish had asked for permission to publish his memoirs and been refused. He then caused to be published privately a book containing these called Inside Intelligence.At Christmas 1987 he distributed privately 279 copies of this. It would be naive to assume that he did not fully appreciate that one or more of the recipients would pass on a copy to one or more organs of the media. This indeed happened to the Scotsman, who received an unexpurgated copy. It came to them, as it were, like manna from heaven. They claim to be innocent recipients, as in one sense they were. In another sense, however, it could be said that their prayers had been answered. The test of their bona fides may lie in the use which they propose to make of this gift from heaven.

The effect of the Crown's concession in the English case is that a substantial portion of Inside Intelligence has now been cleared. The copy of the book now lodged in process contains a part which has been approved with certain deleted passages. Other parts of the book have been omitted altogether. For convenience this production has been described as the "blue pencilled" version. In order to keep these proceedings in line with the English case the prayer of the petition has been amended to except from any interdict pronounced those parts of Inside Intelligence which are not blue pencilled. Even after six days of hearing on the reclaiming motion, however, counsel for the petitioner was unable to explain to me why the concession had been made or what, if any, significance the blue pencilled parts of the book had. From the outset of the argument this was a difficulty for the reclaimer which I felt was never resolved. In the end of the day it has influenced me considerably in reaching my conclusion.

When the Lord Ordinary issued his judgment on 12th January 1988 the petitioner's averments of prejudice were brief. They were as follows:—

"The petitioner is reasonably apprehensive that it is likely that the respondents will publish further information obtained by Anthony Cavendish concerning the British security and intelligence services or their activities or any other British security service or its activities. Further the petitioner is apprehensive that standing the nature of the material and information that others will seek to disclose or publish said material to the prejudice of the administration of justice. Disclosure or publication of said material and information is prejudicial to the interests of the Crown."

The interlocutors of the Lord Ordinary of 5th and 6th January 1988 were reclaimed. On 29th January 1988 the First Division, after hearing debate, recalled these interlocutors and remitted the cause back to the Lord Ordinary to consider an application for interim interdict to be presented of new. They did not issue written reasons for having pursued this course. Insofar as these reasons may be of any importance we have to rely upon the submissions of counsel and the coverage of the proceedings by interested organs of the media. As I understand the position, however, in his closing speech, senior counsel for the Crown sought to argue that disclosure or publication of the blue pencilled contents of Inside Information would be prejudicial to national security. There was no trace of such a case in the averments contained in the petition. The case was therefore remitted back to give an opportunity to the petitioner to make such a case, if so advised, and seek interim interdict on that basis.

The petitioner then amended his pleadings to include the following averments relative to disclosure or publication of material and information in the book:—[his Lordship quoted heads (a) to (f) of stat. 7 as set out at p. 123 supra and continued].

It is to be observed that these additional averments are mutatis mutandis, almost word for word the same as the contents of an affidavit by the Cabinet Secretary, Sir Robert Armstrong at the interim stage of the Spycatcher case. These averments were considered sufficient at that stage by the majority of the House of Lords to make it appropriate that an interim order be pronounced before inquiry had taken place. The presence of these averments in the present case leads me to conclude that the petitioner seeks to present his case as being similar to Spycatcher.

Evidence was duly heard in Spycatcher by Scott J. who issued a judgment on 21st December 1987 in which he declined to grant the injunction sought by the Crown. He was obviously impressed by evidence which he had heard about the scale of publication and distribution of the book which had already occurred in the United States of America and Canada and the extent to which copies had penetrated the United Kingdom and were continuing to do so. He states that according to one estimate some 10,000 copies were at one time entering the jurisdiction every week. He concludes inter alia that the publication and world wide dissemination of the book and the information therein contained has had the result that there is no longer any duty of confidence lying on newspapers or other third parties in relation to the information contained in the book. His conclusion is therefore based upon the contents of the book being now so widely available that they were no longer secret and any injunction purporting to prevent their publication would be inept. The cat, in short, was completely out of the bag. The decision of Scott J. to refuse to grant the injunction sought was upheld by the Court of Appeal on 10th February 1988. I understand that that decision is, in turn, at present under appeal to the House of Lords.

In the present case the appellant made a further application for interim interdict on the amended pleadings. A hearing took place before the same Lord Ordinary on 16th February 1988 and the three following days. On 23rd February 1988 the Lord Ordinary issued a judgment refusing interim interdict. He had the benefit of copies of the opinions of Scott J. and the judges in the Court of Appeal very recently pronounced in the Spycatchercase.

In view of the way in which the argument ultimately developed in the reclaiming motion before us I do not find it necessary to rehearse the opinion of the Lord Ordinary in any detail. At the stage of the hearing before the Lord Ordinary the petitioner's averment was that Cavendish had privately published about 500 copies of the book and distributed a large proportion of them to individuals. It was averred that disclosure of the contents was not widespread. By the time the reclaiming motion came before us a further averment had been added to the effect that 279 copies of the book were distributed. The real reason for the refusal of the Lord Ordinary to grant interim interdict appears to be based upon the conclusion which he reached that the averments disclosed a degree of publication and distribution such as to make interim interdict inept. He dismisses heads (a) to (e) in the averments quoted above as irrelevant because there is no averment that the information remains confidential "in the sense that it has not already been published". He concludes that in any event a circulation of 500 copies and the publication of parts of the book in the press are amply sufficient to allow it to be inferred that any person or government really interested in the remainder of the book will already have obtained it. Head (f) of the averment quoted he dismisses as lacking in specification. With respect to the Lord Ordinary he has, in my opinion, overlooked the fact that he is dealing with matters at an interim stage and is indulging in speculation. He has obviously been influenced by the decisions of Scott J. and the Court of Appeal in Spycatcher. These were reached after evidence, however, and there is a world of difference between the extent of publication and distribution proved to have occurred in Spycatcher and the averments relative to these matters in the present petition. Counsel for the Scotsmanaccepted that the extent to which publication and distribution of a confidential document would render interdict inept was a question of degree. That concession in itself is a strong argument for granting interim interdict until the extent and consequence of the publication are established. If matters had rested there I would have been in favour of recalling the interlocutor of the Lord Ordinary and granting interdict ad interim.

In the course of their submissions to us counsel for the petitioner made it very clear that they were not now contending that any of the contents of the book—not even the "blue pencilled" portion—contained matter which was prejudicial to national security. It was not what the book contained that caused prejudice. It was the mere fact of publication by an ex-officer of the security services in breach of his obligation of confidence that gave rise to the alleged prejudice contained in heads (a) to (f) in the averments quoted above. The case was what came to be referred to in the course of the argument as a "non-contents" case and not a "contents" case. I am not sure that this attitude has been consistently adopted by the petitioner at all stages in the present petition. It was said that such a stance had been taken before the Lord Ordinary, but I find little trace of that in his opinion. However that may be, it was the position adopted in the end of the day before us on behalf of the petitioner. In my opinion it is fatal to his request for interim interdict.

In the first place, if the contents of the book are innocuous in the sense that they contain nothing that is prejudicial to national security, why are the blue pencilled portions still excluded? As I have already pointed out, counsel for the petitioner could not answer this question. Secondly, in the light of that concession, how can the averment added by adjustment and quoted supra now be maintained that disclosure or publication of material and information contained in the book is prejudicial to national security? The concession negates this averment. In effect it excludes from the pleadings that averment and heads (a) to (f) which were introduced to support it. This makes the case no more relevant than it was when it was argued before the First Division.

If the Crown case had been that this book contained matter which, if published, would prejudice national security I would have had little difficulty in concluding that interim interdict was appropriate to restrain publication of such matter by the media. It was suggested on behalf of the respondents that what was at stake here was a paramount principle, viz. freedom of the press. This statement contains two fallacies. The first is that there is no such principle as freedom of the press. The principle is freedom of speech and it is enjoyed by every individual in a democratic country. It is also enjoyed by the media but their right is no higher or more extensive than that of the individual. Secondly, the principle is not paramount. It must yield to another interest of the public, viz. the need to preserve national security. I accept that it is the ultimate responsibility of the courts and not the executive to decide on balance which of two competing public interests should prevail; but if the senior law officer of the Crown comes to court averring on his responsibility that certain information if published would be prejudicial to national security, and even further, that it is of such a sensitive nature that it cannot be disclosed in pleadings or in open court, I would have no hesitation in holding at the interim stage that individuals and organs of the media should be restrained from publishing it. That however is not the present case.

I therefore conclude that the Lord Ordinary's decision to refuse interim interdict was, on these pleadings and as the petitioner's case was submitted to us, correct, albeit for reasons which differ from his. This makes it unnecessary to consider the numerous authorities cited before us on the two matters which occupied so much of the argument to which we listened. The first of these was public policy and, as I have already indicated, I am prepared to accept that it must always be for the court in the end of the day to decide in which direction public policy lies when two public interests compete. This is, of course, subject to any legislation which may be passed governing such matters, as in times of war or national security. The second matter is the extent to which in the law of Scotland one who acquires confidential information, knowing that it has been imparted to him in breach of confidence, is required to respect that confidentiality and to refrain from publishing further. It appears to be the law of England that he is so required. I should be sorry to think that the law of Scotland was so impoverished that it did not provide a remedy where such manifest breach of trust and confidence is involved. It may be that there is no Scottish decision which is directly in point, but I consider traces of a principle may be found in observations contained in such cases as Brown's Trs. v. Hay (1898) 25 R. 1112 and McCosh v. Crow & Co . (1903) 5 F. 670. Beyond that anything I might say would be obiter and I think it more prudent to say nothing.

The only matter on which I would comment is the form of the interdict sought in so far as it seeks to restrain "any other person having notice of said interlocutor". I do not consider that it would be competent in the law of Scotland to grant interdict in these terms. I entirely agreed with [the] reasoning in the second opinion of the Lord Ordinary on this matter. The case of Pattison v. Fitzgerald (1823) 2 S. 536, although old, is directly in point. It is a cardinal feature of the Scots law of interdict that it should be directed to specific individuals. This has been recognised in recent cases where interdicts have been sought to restrain persons involved in industrial disputes. Moreover, as was pointed out in argument, if an interlocutor in such vague terms is competent it completely deprives any person who has lodged a caveat but who has not been called specifically as a respondent, of the protection which the caveat system is designed to afford.

For the foregoing reasons I agree with your Lordship in the chair that the reclaiming motion be refused.

The petitioner appealed to the House of Lords. The appeal was heard in that House before Lord Keith of Kinkel, Lord Templeman, Lord Griffiths, Lord Goff of Chieveley and Lord Jauncey of Tullichettle on 15th, 16th and 17th May 1989.