Reference:  EWCA Civ 294
Court: Court of Appeal (Civil Division)
Judge: Chadwick, Moore-Bick LJJ & Lawrence Collins J
Date of judgment: 22 Feb 2006
Summary: Breach of confidence - Public interest defence - Documents supporting allegation of mistreatment of staff - Disclosure - Relevance of truth or falsity of allegation - Relevance of defendant's knowledge at time of breach of confidence
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Instructing Solicitors: David Price & Co for Harrids; Finers Stephens Innocent for the Defendant
Harrods brought a claim for breach of confidence in internal memoranda and discussions at meetings of senior management that had been leaked by a former director and which were claimed to support the Sunday Times’s published allegation of oppressive treatment of senior staff at Harrods. The defence was a denial of confidentiality, and the public interest in exposing the mistreatment and failure to follow good employment practice. An order had been granted requiring disclosure of wide categories of documents relating to the circumstances in which 60 former senior executives departed over the last 16 years, on the footing that the documents were relevant to the public interest defence. Harrods appealed. The appeal was in effect disposed of by Harrods undertaking not to seek to require the newspaper to prove the truth of its allegation of mistreatment of employees, on the footing that Harrods took the position that the allegation was immaterial.
The newspaper pleaded in defence that its allegation of mistreatment, to which the memos etc. were said to be relevant, was true. Harrods took the position that the truth or falsity of that allegation was immaterial and that all that could be material was whether the defendant had sufficiently verified its allegation before publishing it.
That the judge had been correct to order the disclosure on the pleadings as they stood: the Claimant should have applied to strike out the plea that the published allegation was true, if it maintained that it was immaterial. On the Claimant’s undertaking not to require the Defendant to prove truth, the disclosure was limited to documents concerning 2 directors, held to be material on other grounds.
The appeal raised an important issue of law: where public interest is claimed, broadly on the grounds of exposing iniquity, must the Defendant prove the truth of the alleged charge of iniquity? This in turn raises the issue whether the inquiry at trial must be confined to such facts and matters as were known, at least in general terms, to the Defendant at the date of the disclosure or publication said to be a breach of confidence. The appellant’s case was, following a dictum of Bingham LJ in the Spycatcher case,  AC 109 at 223, that the only issue could be as to the sufficiency of the steps to verify the allegation taken by the Defendant pre-publication or disclosure. Perhaps unfortunately, the Court did not find it necessary to decide the point, though there is some indication in the judgment (see para 31), that the court may have thought the appellant’s point well-founded.