Reference:  EWCA Civ 1374;  EMLR 76
Court: Court of Appeal
Judge: Lord Phillips of Worth Matravers MR, Chadwick LJ, Keene LJ
Date of judgment: 14 Oct 2002
Summary: Breach of confidence - Contract of employment - Repudiation - Public interest in disclosure - summary judgment - part 24
Instructing Solicitors: Peter Carter-Ruck & Partners for the Claimant; David Price Solicitors and Advocates for the Defendant.
The Defendant was employed by the Claimant to provide services, upon terms including an express obligation to enter into a written confidentiality agreement, which the Defendant duly did. The relationship between the parties broke down, and the Defendant alleged that the Claimant had violently assaulted her. She alleged that this conduct constituted a repudiation of the contract, which she accepted. She then gave an interview to the ‘News of the World’, which formed the basis of an article in that newspaper. The Claimant brought an action for breach of the Defendant’s contractual obligation of confidence and was granted summary judgment in respect of part of her claim. The Defendant appealed.
(1) Whether the Defendant had an arguable defence that the contract had been discharged by the Claimant’s conduct; (2) Whether the Defendant had an arguable defence that there was a public interest in disclosing the information.
(1) It was unlikely that the Judge had erred in relation to the discharge of the contract, but it could not be said to be unarguable. (2) It was at least arguable that the Defendant had a public interest defence as the Claimant had painted a false picture of herself to the public as a reformed and stable individual who was engaged to be married. The Defendant’s appeal was allowed.
The weight to be attached to a contractual term imposing confidentiality is an uncertain area of the law – contrast Walker LJ in London Regional Transport v The Mayor of London  EWCA Civ 1491 at  with Lord Donaldson of Lymington MR in Attorney General v Barker  3 All ER 257 at p.260. The issue in this case was whether, notwithstanding the alleged repudiation of the contract by the actions of Ms Campbell in attacking Ms Frisbee, the obligation of confidence could nevertheless be enforced. Lightman J had held that it could. The Court of Appeal held “reluctantly” that at the Summary Judgment stage this view was too robust and opined: “We say ‘reluctant’ because, while this case may provide a valuable addition to the developing jurisprudence on the right to privacy if it proceeds to trial, the costs involved in the provision of that benefit are likely to be disproportionate to what is at stake in terms of damages or an account of profits”..