Attorney General v Blake
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Attorney General v Blake (Jonathan Cape Ltd, third party)
EQUITY: INTELLECTUAL PROPERTY; Copyright
CHANCERY DIVISION
SIR RICHARD SCOTT V-C
1, 2, 19 APRIL 1996
Equity – Fiduciary duty – Duty not to profit from position of trust – Defendant formerly employed by Crown as member of Secret Intelligence Service and becoming agent for Soviet Union – Defendant writing and publishing autobiography based on information acquired in capacity as SIS officer – Book published without licence or permission of Crown – Whether defendant in breach of continuing fiduciary duty owed to Crown – Whether Crown beneficially entitled to copyright in book and future profits derived from publication.
From 1944 until 1961 the defendant was employed by the Crown as a member of the Secret Intelligence Service (the SIS). In 1951 he became an agent for the Soviet Union and in 1961 he was convicted on five counts of unlawfully communicating information contrary to s 1(1)(c) of the Official Secrets Act 1911 and sentenced to 42 years’ imprisonment. However, the defendant subsequently escaped from prison and went to live in Moscow. In 1989 the defendant wrote his autobiography, substantial parts of which related to his activities as a member of the SIS and were based on information acquired by him in that capacity. The book was published in the United Kingdom without the licence or permission of the Crown. The Crown, suing by the Attorney General, thereafter commenced an action against the defendant, contending that, in writing and subsequently authorising the publication of the book, the defendant had acted in breach of the fiduciary duty which he owed to the Crown as an ex-member of the SIS not to use his position as a former servant of the Crown, or information imparted to him in that capacity, so as to generate a profit or benefit for himself. The Attorney General contended that the Crown was the beneficial owner of the copyright in the book and that the defendant was accountable to the Crown for all sums received or receivable from the publishers.
Held – A former member of the intelligence and security services did not owe the Crown a continuing duty not to use his position as a former servant of the Crown so as to generate a profit or benefit for himself, or a continuing duty not to use any information imparted to him in that capacity for such a purpose. The law would not impose a duty which represented either an unreasonable restraint on the ability of an ex-member to earn his living by exploiting the experience and knowledge he had acquired during his years of service, nor a restriction on his freedom of speech which was unnecessary for the reasonable protection of the interests of the service in question. On the facts, the Crown had neither pleaded nor established by evidence any misuse by the defendant of his position as a former member of the SIS or of information imparted to him in that capacity. The action would accordingly be dismissed (see p 909 a to d, p 911 g h and p 912 f, post).
903
Notes
For equitable relief in cases of fiduciary relationship, see 16 Halsbury’s Laws(4th edn reissue) paras 905, 909.
For profits from trust property or fiduciary relationship, see 48 Halsbury’s Laws (4th edn reissue) para 591.
For the Official Secrets Act 1911, s 1, see 12 Halsbury’s Statutes (4th edn) (1994 reissue) 172.
Cases referred to in judgment
A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545, [1990] 1 AC 109, [1988] 3 WLR 776, CA and HL.
A-G for Hong Kong v Reid [1994] 1 All ER 1, [1994] 1 AC 324, [1993] 3 WLR 1143, PC.
Halifax Building Society v Thomas [1995] 4 All ER 673, [1996] 2 WLR 63, CA.
Lister & Co v Stubbs (1890) 45 Ch D 1, [1886–90] All ER Rep 797, CA.
Lord Advocate v Scotsman Publications Ltd [1989] 2 All ER 852, [1990] 1 AC 812, [1989] 3 WLR 358, HL.
Snepp v US (1980) 444 US 507, US SC.
Cases also cited or referred to in skeleton arguments
A-G v Jonathan Cape Ltd [1975] 3 All ER 484, [1976] QB 752.
Acorn Computers Ltd v MCS Microcomputer Systems Pty Ltd (1985) 4 IPR 214, Aust HC.
Antocks Lairn Ltd v I Bloohn Ltd [1972] RPC 219.
Autronic AG v Switzerland (1990) 12 EHRR 485, ECt HR.
Barfod v Denmark (1989) 13 EHRR 493, ECt HR.
Beloff v Pressdram Ltd [1973] 1 All ER 241.
Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd (No 2) [1996] FSR 36.
Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39, Aust HC.
Derbyshire CC v Times Newspapers Ltd [1993] 1 All ER 1011, [1993] AC 534, HL.
Hector v A-G of Antigua and Barbuda [1990] 2 All ER 103, [1990] 2 AC 312, PC.
Hubbard v Vosper [1972] 1 All ER 1023, [1972] 2 QB 84, CA.
Informationsverein Lentia v Austria (1993) 17 EHRR 93, ECt HR.
Initial Services Ltd v Putterill [1967] 3 All ER 145, [1968] 1 QB 396, CA.
John Richardson Computers Ltd v Flanders [1993] FSR 497.
LAC Minerals Ltd v International Corona Resources Ltd [1990] FSR 441, [1989] SCR 574, Can SC.
Lingens v Austria (1986) 8 EHRR 407, ECt HR.
Lion Laboratories Ltd v Evans [1984] 2 All ER 417, [1985] QB 526, CA.
Massine v de Basil [1936–45] MCC 223.
Missing Link Softwear v Magee [1989] 1 FSR 361.
Muller v Switzerland (1988) 13 EHRR 212, ECt HR.
Neste Oy v Lloyds Bank plc [1983] 2 Lloyd’s Rep 658.
Nichrotherm Electrical Co Ltd v Percy [1957] RPC 207, CA.
Observer v UK (1991) 14 EHRR 153, ECt HR.
Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] AC 1, HL.
R v Chief Metropolitan Stipendiary Magistrate, ex p Choudhury [1991] 1 All ER 306, [1991] 1 QB 429, DC.
Randle and Pottle, Re (1991) Independent, 26 March.
Rantzen v Mirror Group Newspapers (1986) Ltd [1993] 4 All ER 975, [1994] QB 670, CA.
904
Reading v A-G [1951] 1 All ER 617, [1951] AC 507, HL; affg sub nom Re Reading’s Petition of Right [1949] 2 All ER 68, [1949] 2 KB 232, CA.
Simon and Schuster Inc v New York State Crime Victims Board (1991) 502 US 105, US SC.
Sunday Times v UK (1979) 2 EHRR 245, ECt HR.
Thorgeirson v Iceland (1992) 14 EHRR 843, ECt HR.
Tolstoy Miloslavsky v UK (1995) 20 EHRR 442, ECt HR.
Vogt v Germany (1996) 21 EHRR 205, ECt HR.
Walsh v Lonsdale (1882) 21 Ch D 9, CA.
Action
By writ issued on 24 May 1991 and statement of claim dated 17 June 1991 the Crown, by the Attorney General, commenced an action against the defendant, George Blake, for breach of fiduciary duty, claiming inter alia: (i) a declaration that the Crown was beneficially entitled in equity to hold and enjoy the copyright in the defendant’s book ‘No Other Choice’; (ii) an order assigning the legal title to the copyright in the book to the Crown; and (iii) an account of profits and an order for payment to the plaintiff of all sums found to be due to the defendant from the third party publishers, Jonathan Cape Ltd, under any contract entered into between the defendant and the third party for the publication of the book. Neither the third party nor the defendant took any part in the trial. The facts are set out in the judgment.
Philip Havers QC and Mary Vitoria (instructed by the Treasury Solicitor) for the Attorney General.
Lord Lester of Herne Hill QC and Pushpinder Saini (instructed by the Treasury Solicitor) as amici curiae.
Cur adv vult
19 April 1996. The following judgment was delivered.
SIR RICHARD SCOTT V-C. The defendant, George Blake, was from 1944 until 3 May 1961 a member of the Secret Intelligence Service (the SIS). In 1951 or thereabouts he became an agent for the Soviet Union. From that time until his arrest in 1960 he betrayed his country by disclosing secret information and documents to the Soviet Union. On 3 May 1961 the defendant pleaded guilty to and was convicted on five counts of unlawfully communicating information contrary to s 1(1)(c) of the Official Secrets Act 1911. He was sentenced to 42 years’ imprisonment. In 1966, however, the defendant escaped from Wormwood Scrubbs. He made his way to Berlin and thence to Moscow, where he still lives.
In 1989 the defendant wrote his autobiography, later entitled ‘No Other Choice’. In it he describes his background and early life, the part he played in the 1939 to 1945 war and his assignment during the war to the SIS. He provides details of his training and work as an SIS officer after the war. He describes how, in the Korean War, he was taken into custody by North Korean troops and how, during his internment, he became converted to the cause of communism and offered his services to the KGB. He provides details of his activities as an SIS officer after his release from captivity on the termination of the Korean War. He describes the circumstances in which his role as a Soviet agent became known to 905 the British authorities, his trial, imprisonment and subsequent escape. He provides an account of his life in the Soviet Union following his escape. The book may fairly be described as his apologia for the course his life has taken. It will be apparent from this brief description of the contents of the book that substantial parts of the contents relate to the defendant’s activities as a member of the SIS and are based on information acquired by him while an SIS officer.
On 4 May 1989 the defendant entered into a publishing contract with Jonathan Cape Ltd. Under the contract Jonathan Cape were granted an exclusive licence to publish the book in the United Kingdom on royalty terms. The publishers agreed to pay the defendant, by way of advances against royalties, the sum of £50,000 on signature of the contract, £50,000 on delivery of the final manuscript and £50,000 on publication of the book.
The book was published in the United Kingdom on 17 September 1990. Neither the SIS nor any other branch of government had any knowledge of the book until its publication was first announced in the press. Needless to say, the defendant had not sought any licence or permission from the Crown for the publication of the book and had not submitted his manuscript for prior approval.
The action was commenced by writ issued on 24 May 1991. The plaintiff is the Crown, suing by the Attorney General. The relief sought does not seek any restraint on publication of the book. Instead, it seeks to extract from the defendant any financial benefit he may obtain from publication of the book. The relief claimed is based on the contention that in writing and subsequently authorising the publication of the book, the defendant acted in breach of the duty he owed the Crown as an ex-member of the SIS. This duty is described in para 3 of the statement of claim as follows:
‘In the premises the Defendant owes and has at all material times owed to the Crown a duty (i) not to use his position as a former servant of the Crown so as to generate a profit or benefit for himself, (ii) not to use any information imparted to him in his capacity as a servant of the Crown so as to generate such a profit or benefit and (iii) to give restitution to the Crown of any such profit or benefit generated by misuse of his position and/or the information aforesaid.’
It is contended that in the circumstances the Crown is the beneficial owner of the copyright in the book and that the defendant is accountable to the Crown for all sums received or receivable from Jonathan Cape Ltd in respect of the publication. Sums already paid to the defendant must, realistically, be regarded as irrecoverable. There remains, however, some £90,000 which, if he were entitled to receive it, the publishers would be paying to the defendant. It is the Crown’s intention, if it can, to intercept this sum and all future royalties.
The defendant entered an appearance to the action by solicitors, Messrs B M Birnberg & Co, and on 6 January 1992 served a defence. The defence admitted the primary facts, but denied that in writing the book or in authorising its publication the defendant was in breach of any duty to the Crown and denied that the Crown had any rights in the copyright of the book or in the profits made by the defendant from the book.
On 12 August 1994, however, an order was made, on the application of B M Birnberg & Co, that they ‘do cease to be the solicitors acting for the defendant’. I have not been told what lay behind that application, but the effect of the order was to leave the defendant unrepresented in the action. It was, moreover, clear that, for very obvious reasons, the defendant would not be coming to London to 906 contest the case as a litigant in person. In these circumstances, and bearing in mind that important issues of legal principle were raised by the relief sought in the action, the Attorney General very properly invited the court to seek the appointment of amici curiae to assist the court at trial. A request to that effect was accordingly made by Carnwath J on 26 July 1995 and, in consequence, Lord Lester of Herne Hill QC and Mr Pushpinder Saini have appeared before me as amici curiae. Their role, I must make clear, has not been to represent the interests of the defendant. They are not counsel for the defendant. Their role is to assist me in evaluating the submissions made to me by counsel for the plaintiff and to draw my attention to the legal principles and authorities which might, in argument, seem to oppose the grant of the relief sought by the plaintiff. I have been very greatly assisted by their submissions, as I have by those of Mr Philip Havers QC and Miss Vitoria, counsel for the plaintiff.
There are, broadly, two issues for decision. First, there is the question whether, in writing and authorising the publication of the book, the defendant was in breach of duties he owed to the Crown. Second, there is the question whether, if the defendant was in breach of duty as alleged, the proprietary consequences for which the plaintiff contends, namely, that the copyright in the book and the profits derived therefrom belong in equity to the Crown, follow.
Mr Havers commenced his submissions with an explanation of his case that took me, and I believe Lord Lester, rather by surprise. He said that it was not contended that in writing the book the defendant had committed any breach of his duty of confidence. The information contained in the book that related to the SIS or that had been obtained by the defendant as a member of the SIS was not by 1989, he said, any longer confidential. The action was not, therefore, based on an alleged breach of a continuing duty of confidence. It was based, Mr Havers said, on a breach of fiduciary duty that was independent of any concurrent duty of confidence that the defendant might have owed.
I have already referred to para 3 of the statement of claim in which the alleged fiduciary duty owed by the defendant is formulated. In his skeleton argument and in his oral submissions Mr Havers repeated, in much the same language, that formulation of the alleged duty. The defendant, he submitted, owed the Crown a fiduciary duty (i) not to use his position as a former member of the SIS so as to make for himself a profit and (ii) not to use the Crown’s property, including intangible property such as confidential information, for his own benefit. As to (ii), however, since it is not alleged that any of the information in the book was, at the time the book was written or at the time the book was published, confidential in character, Mr Havers’ formulation of the alleged duty must, I think, be intended to cover information originally confidential but which has subsequently lost its confidential character.
In my judgment, these duties are formulated in terms too wide to be acceptable.
I would readily accept that former members of any of the security or intelligence services owe the Crown a lifelong duty not to disclose confidential information acquired by them in the course of their duties. There is clear authority that that is so. In A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545 at 642, [1990] 1 AC 109 at 259 (the Spycatcher case) Lord Keith of Kinkel said:
‘The work of a member of MI5 and the information he acquires in the course of that work must necessarily be secret and confidential and be kept secret and confidential by him.’
907
Lord Brightman, in the same case, said ([1988] 3 All ER 545 at 647, [1990] 1 AC 109 at 265): ‘A member of the security service is under a lifelong duty of confidence towards the Crown’ . But he went on to say that once information had ceased to be secret the duty of confidence was extinguished in regard to that information. He explained: ‘The reason why the duty of confidence is extinguished is that the matter is no longer secret and there is therefore no secrecy in relation to such matter remaining to be preserved by the duty of confidence.’
Lord Griffiths referred to—
‘a lifelong duty to the Crown [owed by a member of the Security Service] not to disclose any secret or confidential information he acquired during his service … a brightline rule that forbids any member or ex-member of the service to publish any material relating to his service experience unless he has had the material cleared by his employers.’ (See [1988] 3 All ER 545 at 650, [1990] 1 AC 109 at 269.)
This passage has been heavily relied on by Mr Havers. But Lord Griffiths was not, on my reading of this passage, describing a duty owed by the member or ex-member of the service. Rather he was describing a means by which the duty he had earlier formulated, ie the duty not to disclose any secret or confidential information, could be enforced.
In Lord Advocate v Scotsman Publications Ltd [1989] 2 All ER 852 at 857, [1990] 1 AC 812 at 821 Lord Keith referred to the House of Lords’ decision in the Spycatcher case, which, he said, had ‘authoritatively established that a member or former member of the British security or intelligence service owes a lifelong duty of confidentiality to the Crown …’ And Lord Templeman referred to the ‘duty of lifelong confidence of security employees accepted in the Spycatcher case …’ (see [1989] 2 All ER 852 at 861, [1990] 1 AC 812 at 825).
Each of the speeches in these two leading cases proceeded on the basis that the lifelong duty of non-disclosure resting on members or former members of the intelligence and security services was a duty owed in respect of secret or confidential information. True it is that the line between what is confidential or secret and what is publicly known or trivial is a line very difficult to draw and that the Crown is best placed to draw that line and, in doing so, is entitled in the national interest to err on the side of caution. But the importance of the distinction between, on the one hand, secret or confidential information the disclosure of which might damage the national interest and, on the other hand, publicly known or trivial information the disclosure of which could do no such damage was, in the two cases mentioned and in the judicial dicta cited, a fundamental one. These dicta do not, in my opinion, provide any support for Mr Havers’ submission that the continuing duty resting on the defendant at the time he wrote his book extended beyond a duty not to disclose secret or confidential information.
There is, I repeat, no doubt but that in relation to secret and confidential information ex-members of the intelligence and security services owe a lifelong duty of non-disclosure, and that this duty would, prima facie, prevent them from writing their memoirs of life in the service. This duty may, in some cases, derive from an express contractual undertaking entered into by the individual in question. There is no clear evidence that any such express undertaking was entered into by the defendant. But, absent any such express contractual undertaking, the duty would be one imposed by law having regard to the nature 908 of the engagement accepted by the individual on joining the service in question. It is immaterial whether the duty is regarded as a contractual one imposed by an implied term of the contract of employment or as an equitable one derived from the relationship of trust between the individual and his employers. It is clear, however, that any duty imposed by the law would be a duty that went no further than was reasonably necessary for the protection of the interests of the service in question. The law would not impose a duty that represented an unreasonable restraint on the ability of the ex-member to earn his living by exploiting the experience and knowledge acquired during his years of service. An ex-member of the security service could not, for example, be prevented, on leaving the service, from going into business as an adviser on security matters to commercial companies, or from using in that business the experience and knowledge of electronic surveillance techniques he had acquired while with the security service, subject of course to his obligation not to disclose secret or confidential information. Nor, in my opinion, would the law impose a duty that represented a restriction on the ex-member’s freedom of speech unnecessary for the reasonable protection of the interests of the service in question. The duty imposed by the law would not prevent the publication of originally secret information that had already become public knowledge. Nor would it prevent the publication of information that could be seen to be or was accepted as being merely trivial.
It is obvious that the duty contended for by the Crown in this case represents an interference with the defendant’s rights of free expression. Rights of free expression are safeguarded by art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) to which the United Kingdom has for over 40 years adhered. The relief sought in the present case would represent an infringement of the defendant’s rights under art 10, unless the interference with those rights could be regarded as ‘necessary in a democratic society in the interests of national security’. (See para 2 of art 10 and Lord Templeman’s speech in Lord Advocate v Scotsman Publications Ltd[1989] 2 All ER 852 at 859, [1990] 1 AC 812 at 823). In considering the nature and breadth of the continuing duty binding ex-members of the intelligence and security services, this treaty obligation must be borne in mind. Subject to the effect of any statutory intervention (a matter to which I will return), the law would no more impose on an ex-member of the intelligence or security services a continuing duty of non-disclosure that would represent an infringement of his rights of free expression under art 10, than it would impose a duty that would represent an unreasonable restraint on his ability to earn his living.
A duty to refrain from disclosing information that at the time of disclosure is neither secret nor confidential is not, in my judgment, ‘necessary in a democratic society in the interests of national security’. Mr Havers’ argument to the contrary was based on the proposition that it must be for the Crown and not for an ex-member of the services to judge whether information retains or has lost the characteristics of secrecy or of confidence and whether or not the disclosure of the information might do damage to the material interest. I can accept that proposition as being correct, but it leads, in my opinion, nowhere in the present case. In the present case there is no allegation that the information disclosed by Mr Blake ever was secret or confidential. But, more important, it is not contended that the information was, at the time of disclosure, either of these things. It is not alleged in the statement of claim, nor is there any evidence that 909 the disclosure of the information contained in the book might, or in the event did, cause any damage to the national interest. In these circumstances there is, it seems to me, no force in the point that it is for the Crown and not for the defendant to assess these things. The Crown has not, so far as the pleadings and the evidence reveal, made any relevant assessment either of the extent to which information in the book remains secret or confidential, or as to whether the publication was likely to cause or has caused any damage to national interests.
My attention has, however, been drawn to s 1 of the Official Secrets Act 1989. Section 1(1) provides as follows:
‘A person who is or has been—(a) a member of the security and intelligence services; … is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services …’
Subsection (1) applies to the defendant. The offence established by the subsection is committed whether or not the information disclosed was secret or confidential, and whether or not the disclosure was in any respect damaging to national interests (cf ss 3, 4 and 5).
It seems to me clear that the submission by the defendant of his manuscript to Jonathan Cape Ltd constituted the disclosure of information which was in his possession by virtue of his work as a member of SIS and that he thereby committed an offence under sub-s (1). He has, therefore, committed a breach of statutory duty.
This action has not, however, been based on any breach by Mr Blake of statutory duty under the 1989 Act. There is no mention of the Act in the pleadings. The reason for this is, I imagine, that breach of statutory duty under the 1989 Act would not lead to any of the remedies sought in this action. Criminal penalties are prescribed for offences under the 1989 Act. Conviction of any such offence could be followed, I am told, by a confiscation order depriving the offender of the fruits of his crime. But long-established principles of statutory construction preclude the civil law remedies sought in this action being added to the statutory remedies prescribed by the 1989 Act. Mr Havers has not argued the contrary. Accordingly, the circumstance that Mr Blake’s activities on which the present action is founded appear to constitute an offence under s 1(1) of the 1989 Act does not assist the Crown to establish a breach of duty under the civil law for which the civil law remedies sought in this action can be claimed.
I was referred, also, to the decision of the United States Supreme Court inSnepp v US (1980) 444 US 507. Mr Snepp had been a member of the CIA. He had, as an express condition of his employment with the CIA, signed an agreement promising that he would—
‘not … publish … any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment … without specific prior approval by the Agency.’ (See (1980) 444 US 507 at 508.)
Mr Snepp published a book about certain CIA activities in South Vietnam. He did so without submitting the book to the CIA for prepublication review. So he was in breach of his express agreement.
The US District Court found as a fact that publication of the book had ‘caused the United States irreparable harm and loss’ and imposed a constructive trust in 910 favour of the US government on Mr Snepp’s profits from the book. The Supreme Court, by a majority, upheld the District Court. They agreed ‘that Snepp breached a fiduciary obligation and that the proceeds of his breach are impressed with a constructive trust’. The US government’s case was described in this way (at 511):
‘Whether Snepp violated his trust does not depend on whether his book actually contained classified information. The Government does not deny—as a general principle—Snepp’s right to publish unclassified information. Nor does it contend … that Snepp’s book contained classified material. The Government simply claims that, in the light of the special trust reposed in him and the agreement that he signed, Snepp should have given the CIA an opportunity to determine whether the material he proposed to publish would compromise classified information on sources. Neither of the Government’s concessions undercuts its claim that Snepp’s failure to submit to prepublication review was a breach of his trust.’
It seems, therefore, that the breach of duty on which the relief, in the form of a constructive trust of profits, was founded, was the failure of Mr Snepp to submit his book for prepublication review. That duty had been imposed by the express terms of the agreement Mr Snepp had signed.
There is in the present case no comparable express agreement. If there had been I can, as at present advised, see no reason why it would not have been a valid agreement enforceable as such. I can see no reason why such an agreement would be vulnerable to attack, either on restraint of trade grounds or on art 10 grounds. An obligation to submit his book for prepublication approval is not, however, an obligation that could be imposed on the defendant as an implied term of his contract of employment or as an equitable obligation, or otherwise than by an express agreement to that effect. Nor, indeed, is any such obligation pleaded. Accordingly, the reasoning in Snepp’s case does not, in my opinion, advance the Crown’s case in this action.
In summary, the Crown’s case fails, in my judgment, on this first question. The pleadings and the evidence do not, in my judgment, disclose any breach of duty on the part of the defendant on which the relief claimed can be founded. I do not accept that, as a former member of the security and intelligence agencies, he owed the Crown a continuing duty ‘not to use his position as a former servant of the Crown so as to generate a profit or benefit for himself’ or a continuing duty ‘not to use any information imparted to him in his capacity as a servant of the Crown so as to generate such a profit or benefit’ (see para 3 of the statement of claim). The Crown have not, in my judgment, either pleaded or established by evidence any misuse by the defendant of his position as a former member of the SIS or of information imparted to him in that capacity. This last conclusion may seem strange in view of the defendant’s status as a self-confessed traitor. The conclusion is, however, a consequence of the Crown’s attempt to establish a case on what, in my judgment, was far too broad a statement of the duty owed by ex-members of intelligence and security agencies and on the Crown’s decision, the rightness of which I do not question, not to base its case on the misuse of secret or confidential information or to allege that information damaging to the national interest had been disclosed.
In the event, therefore, the second question, namely whether the Crown can claim, as remedies for the defendant’s breach of duty in writing and authorising publication of his book, to be entitled in equity to the copyright in the book and 911 to an account of the defendant’s profits from the book, does not arise. Since, however, the issue has been the subject of careful and detailed submissions, I will state, in summary terms, my conclusions on the question.
If the defendant had owed the Crown the duties contended for, the writing and publication of the book would have constituted a breach of those duties. If the point had been free from authority, I would have held that the defendant, as wrongdoer, ought in equity to be required to hold the fruits of his wrongdoing for the person to whom the duty was owed, namely the Crown. This was the view I expressed in the Spycatcher case ([1988] 3 All ER 545 at 567, [1990] 1 AC 109 at 139). The same view was expressed by Dillon LJ in the Court of Appeal and, tentatively, by Lord Keith and, more firmly, by Lord Griffiths in the House of Lords (see [1988] 3 All ER 545 at 621, 643, 654–655, [1990] 1 AC 109 at 211, 263, 276). As, however, the Crown did not desire to take the point, the point was not the subject of any argument. As at present advised, I believe the point to be precluded by authority in the form of Lister & Co v Stubbs (1890) 45 Ch D 1, [1886–90] All ER Rep 797 and Halifax Building Society v Thomas [1995] 4 All ER 673, [1996] 2 WLR 63, both Court of Appeal decisions by which I am bound. The Privy Council in A-G for Hong Kong v Reid[1994] 1 All ER 1, [1994] 1 AC 324, an appeal from the Court of Appeal of New Zealand, disapproved Lister & Co v Stubbs. But that disapproval does not relieve me from the obligation in this jurisdiction of accepting its authority. I am, if I may respectfully say so, persuaded by the reasoning of Lord Templeman in his judgment in Reid’s case that Lister & Co v Stubbs ought no longer to be regarded as good law. That reasoning, applied to the present case on the footing that the defendant’s writing of and authority for the publication of the book were breaches of his continuing duties to the Crown, would justify, in my judgment, the conclusion that the Crown was entitled in equity to the benefit of the copyright in the book and to the profits derived by the defendant therefrom.
In the event, however, this second question does not arise. I propose simply to dismiss the action.
Action dismissed.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
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