Ministry of Defence v Griffin
Reference:  EWHC 1542 (QB)
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 3 Jul 2008
Summary: Confidentiality – United Kingdom Special Forces – Contract - Confidentiality agreements – Unauthorised public disclosures – Failure to seek authority for disclosure in accordance with contract - Injunction
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Instructing Solicitors: Treasury Solicitor for the MoD; Leigh Day & Co for Griffin.
The Ministry of Defence brought an action for alleged breaches of a confidentiality agreement and equitable duty of confidence against G, a former soldier who had served in the Special Forces (UKSF). Upon volunteering to join the UKSF G had signed a confidentiality agreement which provided, amongst other things, that G would not disclose any information, document or other article relating to the work of the UKSF without express prior written authority from the MoD.
Since his discharge G had made a number of unauthorised public disclosures and statements in respect of matters which he experienced or which came to his knowledge through his service with the UKSF. G had failed to seek express prior authority for his disclosures. The MoD sought a permanent injunction restaining any further breaches in addition to damages and/or an account of profits.
Whether G was permitted to exercise his own judgment in deciding what information was covered by his duty of confidence, whether contractual or otherwise, or in determining whether there was a public interest overriding his obligation which would permit him to make disclosures.
The important consideration was that the injunction sought would only require G to go through the clearance procedure prescribed by the contract and would not in effect be a blanket ban on G’s right to publish information. Under the contractual terms, the ministry had a right to make judgments as to any proposed disclosure. This was qualified by a safeguard, where appropriate, by G’s ability to make an application for judicial review of any such decision. In essence the court was being asked to do no more than enforce the terms of a contract which had been held by previous authority to be enforceable. G’s plain contractual obligation was to make an application for prior authority first and then, if necessary, consider the possibility of an application by way of judicial review. The court was bound to continue the existing injunction against G until trial or further order.
The terms of the contract at issue had already been held to be enforceable in R v Attorney General of England and Wales  UKPC 22;  EMLR 24.