Reference:  EWHC 1866 (QB);  QB 462;  2 WLR 178;  EMLR 111
Court: Queen's Bench Division
Judge: Gray J
Date of judgment: 12 Sep 2002
Confidential information - breach of confidence - final injunction against defendant - third party applying to use documents confidential to the claimant obtained from defendant - whether use of such documents by third party a contempt of court
Godwin Busuttil (Applicant)
Jacob Dean (Claimant)
Instructing Solicitors: Charles Russell for the Jockey Club; BBC Litigation Department
In the course of producing a programme in the Panorama series entitled “The Corruption of Racing”, the BBC was given by the Defendant a number of documents which he had obtained while employed as Head of Security of the Jockey Club. The BBC wished to use them in the programme but was concerned about the effect of a final order that had been made in proceedings between the parties which prohibited the Defendant from divulging any confidential information of the Jockey Club, including information related to investigations by the Security Department. The BBC applied for a variation of the final order to enable it to use the documents.
Whether the Spycatcher principle (Attorney General v Times Newspapers Ltd  1 AC 191, HL) applied to final orders as well as to interim orders; whether the BBC should be permitted to use the documents in the programme
The Spycatcher principle does not extend to final orders; further, balancing the desirability of upholding confidentiality agreements against the public interest in freedom of expression / access to information, the public interest in publication of the material outweighed the Jockey Club’s right of confidence.
The Spycatcher principle does not apply to final breach of confidence orders. The decision appears to leave open the question of how cogent an intending publisher’s evidence needs to be in order to establish a sufficient public interest in disclosure.