HRH The Prince of Wales v Associated Newspapers (No.3) (CA)
Reference:  EWCA Civ 1776;  Ch 57;  3 WLR 222;  2 All ER 139;  EMLR 121; The Times, 28 Dec 2006
Court: Court of Appeal (Civil Division)
Judge: Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and May LJ
Date of judgment: 21 Dec 2006
Summary: Breach of confidence - Public interest - Privacy - Article 8, ECHR - Freedom of expression - Article 10, ECHR - Contractual duty of confidence - Copyright - Fair dealing - Summary judgment - Relevant issue of fact necessitating trial
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Instructing Solicitors: Reynolds Porter Chamberlain for A; Harbottle & Lewis for P
Shortly after a state visit by the Chinese President to London, A published extracts from a journal written by P about his official visit to Hong Kong in 1997. It had obtained the journal from a former employee of P, together with 7 other journals. P brought an action for breach of confidence and copyright, and applied for summary judgment in respect of all 8 journals. Blackburne J granted P summary judgment in relation to the Hong Kong journal only. A appealed.
(1) Whether the judge was correct to conclude that there was no relevant issue of fact that required a trial;
(2) If not, whether on the merit’s the judge’s Order in favour of P ought to be upheld; and
(3) Whether A had a defence to P’s copyright claim that the publication was fair dealing or in the public interest.
Dismissing the appeal:
(1) The unresolved issues of fact relating to P’s practice in relation to others seeing his journals, and his general conduct in making public his views and seeking to influence executive action, were not such as to require a trial.
(2) The information was obviously both private and of a confidential nature, because of both the relationship within which it was disclosed and its nature. The manner in which P treated the journal did not affect this – no-one receiving it would have felt entitled to publish it without permission. The fact that there was a breach of a contractual duty of confidence was “a significant element to be weighed in the balance” between Articles 8 and 10. The test was not simply whether publication was in the public interest but whether it was in the public interest that the duty of confidentiality should be breached. It was not.
(3) The publication was an infringement of P’s copyright.
The Court criticised as an “over-simplification” the adoption in this case of the Campbell approach of asking whether P’s Article 8 rights were engaged, and if so, whether this was justified under Article 8(2) to protect the Article 10 rights of A and the public. They held that this was not a case that involved a breach of privacy that required an extension of traditional breach of confidence. Applying traditional principles, albeit in the light of the recent privacy cases, the Court placed great weight on the fact that the disclosure of the journals was a clear prima facie breach of a contractual duty of confidence, on the part of the former employee, of which A was obviously aware. Although the Court stated the appropriate test to be that of proportionality, it appears that the existence of a duty of confidence, particularly of a contractual nature, will tip the balance between Articles 8 and 10 in favour of the former in all but the most exceptional case.