[1965] 1 All ER 611

Margaret, Duchess of Argyll (Feme Sole) v Duke of Argyll and Others

EQUITY: CIVIL PROCEDURE

CHANCERY DIVISION UNGOED-THOMAS J 17, 20, 27, 30 NOVEMBER, 1, 4, 9 DECEMBER 1964

Equity – Confidence – Breach of confidence – Marital communications – Protection for secrets concerning private life – Apprehended publication of newspaper articles by spouse, who had obtained divorce, disclosing confidential communications during marriage – No question of property involved – Confidences prior to breakdown of marriage – Immorality of other spouse leading to divorce not nullifying court’s protection for prior confidences – Publication by plaintiff of other confidential matter concerning other spouse’s private married life no bar to relief – Interlocutory injunction granted.

Report – Judicial proceedings – Divorce court – Civil cause of action for injunction – Newspaper articles proposed to be published by former husband concerning proceedings in Scottish divorce – Relief by injunction available notwithstanding that apprehended publication was not an injury to property nor a tort – Judicial Proceedings (Regulation of Reports) Act, 1926 (16 & 17 Geo 5 c 61), s 1(1).

The plaintiff and the first defendant were married in 1951. In 1959, the first defendant started divorce proceedings in Scotland (here referred to as “the divorce proceedings”); in 1960 the plaintiff filed a cross-petition (“the cross-petition”). In 1963 the first defendant was granted in the divorce proceedings a decree of divorce on the ground of the plaintiff’s adultery. In May, 1959, Mrs T, who had formerly been married to the first defendant, and her son by him brought an action (the “T action”) against the present plaintiff in the Queen’s Bench Division claiming an injunction and damages. The present plaintiff did not defend that action and by consent an injunction was granted against her in chambers. She alleged that she consented at the express request of the first defendant,

and in reliance on his promise that, if she did, the subject-matter of that action would never be mentioned again. In November, 1959, Mrs T started committal proceedings against the present plaintiff for alleged breach of the injunction in the T action. On 21 December 1959, the committal proceedings were heard by Paull J in chambers and no committal order was made, but he gave warninga in open court against any publication purporting to say what happened before him in chambers. On 29 May 1962, the cross-petition was withdrawn, no evidence having been adduced in support of it. In June, 1962, Mrs W brought an action (the “W action”) against the present plaintiff and another, in the Queen’s Bench Division, claiming damages for conspiracy, malicious prosecution, libel and injurious falsehood, based on allegations in the cross-petition. On 15 October 1964, the W action was settled by compromise on terms scheduled to an order in the Tomlin form. It was stated by counsel in open courtb that all parties undertook that none of them would make a statement or comment on matters in dispute in that action to anyone.

________________________________________ a    See p 628, letter i, to p 629, letter a, post b    See p 636, letter d, post ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   The second defendant was the editor, and the third defendants were the proprietors, printers and publishers of a Sunday newspaper. The plaintiff moved for interlocutory injunctions to restrain all the defendants from publishing, in articles by the first defendant, statements about her which were said to be (a) secrets of the plaintiff relating to her private life, personal affairs or private conduct, communicated to the first defendant in confidence during the subsistence of his marriage to the plaintiff and not

hitherto made public property; (b) information relating to the subject-matter of the T

611 action, of the cross-petition and of the W action, and (c) information giving particulars of the first defendant’s divorce petition other than those authorised to be published under s 1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act, 1926.    The plaintiff had herself published some articles in a Sunday newspaper the year before; none of these, however, disclosed the matters complained of in the first defendant’s apprehended articles.

Held – (i) an interlocutory injunction would be granted restraining publication of secrets of the plaintiff relating to her private life, personal affairs or private conduct during the marriage for the following reasons—    (a) the policy of the law favoured the view that confidential communications between husband and wife during coverture were within the scope of the court’s protection against breach of confidence; and, in the present case, publication of some of the passages complained of would be a breach of marital confidence (see p 620, letter h, p 623, letter f, p 624, letter g, and p 625, letter e, post).    Prince Albert v Strange ((1849), 1 Mac & G 25) and Pollard v Photographic Co ((1888), 40 ChD 345) followed and applied.    Rumping v Director of Public Prosecutions ([1962] 3 All ER 256, particularly the dicta of Viscount Radcliffe at pp 262, 263) considered and applied.    (b) the publication of the plaintiff’s own articles did not justify withholding the court’s

protection against breach of confidence by the apprehended publication of the first defendant’s articles (see p 626, letter c, post).    (c) nor did the plaintiff’s immorality, which had been the basis of her divorce and of the termination of the marriage, nullify her right to protection against breach of confidence relating to past events, prior to the breakdown of the marriage (see p 626, letter i, post).    (d) the protection extended against not only the first defendant but also persons into whose hands the confidences might come, so that in the present case the injunction would be granted as against the second and third defendants as well as the first defendant (see p 627, letter a, post).    Lord Ashburton v Pape ([1911–13] All ER Rep 708) followed.    (ii) the protection afforded in divorce court proceedings by the Judicial Proceedings (Regulation of Reports) Act, 1926, was wider than a protection of public morals and of the public only and extended to the protection of any person named in a matrimonial suit, and accordingly there was jurisdiction in civil proceedings to grant (and the court would grant in the present case) an interlocutory injunction restraining publication of the subject-matter of the cross-petition and of particulars of the husband’s divorce petition other than those allowed by the Act of 1926 (see p 633, letter b, and p 636, letter b, post); moreover this relief would be granted notwithstanding—    (a) that the Act of 1926 created a criminal offence, and that the apprehended injury of which the plaintiff complained was not an injury to property (see p 633, letter i, to p 634, letter a, post), and    (b) that the apprehended publication in contravention of statute would not also constitute a tort (see p 634, letter b, and p 636, letter a, post).    Hayward v East London Waterworks Co ((1884), 28 ChD 138) and dictum of Farwell J in Stevens v Chown ([1901] 1 Ch at pp 904, 905) applied.    (iii) an interlocutory injunction restraining the defendants from publishing information relating to the subject-matter of the T action would be granted on the prima facie ground of the first defendant’s alleged agreement that if the plaintiff would consent to the injunction in that action he would ensure that she should never hear of the matter again (see p 629, letters a, and e, post).    (iv) prima facie the first defendant’s information concerning the subject matter of the W

action was obtained from a party to that action, and 612 accordingly its publication in breach of the undertaking of all parties given on the settlement of that action would be restrained by interlocutory injunction (see p 636, letter h, post).

Notes As to privilege accorded to marital communications, see 15 Halsbury’s Laws (3rd Edn) 421, 422, para 758; 10 Halsbury’s Laws (3rd Edn) 479, para 877, note (t); and for cases on the subject, see 22 Digest (Repl) 413, 414, 4451–4456; as to jurisdiction to grant injunctions, see 21 Halsbury’s Laws (3rd Edn) 345–349, paras 723–731.    For the Judicial Proceedings (Regulation of Reports) Act, 1926, s 1, see 5 Halsbury’s Statutes (2nd Edn) 1057.

Cases referred to in judgment Abernethy v Hutchinson (1825), 1 H & Tw 28, 3 LJOSCh 209, 47 ER 1313, 13 Digest (Repl) 63, 107. Albert (Prince) v Strange (1849), 1 Mac & G 25, 1 H & Tw 1, 18 LJCh 120, 12 LTOS 441, 41 ER 1171, 28 Digest (Repl) 741, 19. Ashburton (Lord) v Pape [1911–13] All ER Rep 708, [1913] 2 Ch 469, 82 LJCh 527, 109 LT 381, 13 Digest (Repl) 100, 427. A-G v Sheffield Gas Consumers Co (1853), 3 De GM & G 304, 22 LJCh 811, 21 LTOS 49, 43 ER 119, 28 Digest (Repl) 851, 835. Austria (Emperor) v Day and Kossuth (1861), 3 De GM & J 217, 30 LJCh 690, 4 LT 494, 45 ER 861, 28 Digest (Repl) 862, 920. Aveson v Kinnaird (Lord) (1805), 6 East 188, 102 ER 1258, sub nom Avison v Kinnaird (Lord), 2 Smith, KB 286, 22 Digest (Repl) 92, 707. Balfour v Balfour [1918–19] All ER Rep 860, [1919] 2 KB 571, 88 LJKB 1054, 121 LT 346, 27 Digest (Repl) 202, 1604. Cooper v Whittingham (1880), 15 ChD 501, 49 LJCh 752, 43 LT 16, 28 Digest (Repl) 744, 42. Doker v Hasler (1824), Ry & M 198, 171 ER 992, subsequent proceedings, (1825), 2 Bing 479, 22 Digest (Repl) 414, 4452. Gee v Pritchard (1818), 2 Swan 402, 36 ER 670, 13 Digest (Repl) 100, 421. Gorris v Scott (1874), LR 9 Exch 125, 43 LJEx 92, 30 LT 431, 42 Digest 759, 1853. Groves v Wimborne (Lord) [1895–99] All ER Rep 147, [1898] 2 QB 402, 67 LJQB 862, 79 LT 284, 42 Digest 759, 1858. Hayward v East London Waterworks Co (1884), 28 ChD 138, 54 LJCh 523, 52 LT 175, 49 JP 452, 28 Digest (Repl) 745, 44. Lamb v Evans [1893] 1 Ch 218, 62 LJCh 404, 34 Digest (Repl) 152, 1047. Monroe v Twisleton (1802), Peake, Add Cas 219, 170 ER 250, 22 Digest (Repl) 413, 4451. Morison v Moat (1851), 9 Hare 241, 20 LJCh 513, 18 LTOS 28, 28 Digest (Repl) 854, 849. Murray v Heath (1831), 1 B & Ad 804, 9 LJOSKB 111, 109 ER 985, 13 Digest (Repl) 113, 543. North London Ry Co v Great Northern Ry Co (1883), 11 QBD 30, 52 LJQB 380, 48 LT 695, 28 Digest (Repl) 741, 24. O’Connor v Marjoribanks (1842), 4 Man & G 435, 11 LJCP 267, 134 ER 179, subsequent proceedings (1843), 12 LJCP 161, 22 Digest (Repl) 414, 4453. Phillips v Britannia Hygienic Laundry Co Ltd [1923] All ER Rep 127, [1923] 2 KB 832, 93 LJKB 5, 129 LT 777, 42 Digest 870, 197. Pollard v Photographic Co (1888), 40 ChD 345, 58 LJCh 251, 60 LT 418, 28 Digest (Repl) 772, 236. Queensberry (Duke) v Shebbeare (1758), 2 Eden 329, 28 ER 924, 13 Digest (Repl) 94, 357. R v Algar [1953] 2 All ER 1381, [1954] 1 QB 279, [1953] 3 WLR 1007, 118 JP 56, 37 Cr App Rep 200, 14 Digest (Repl) 523, 5077.

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R v Pamenter (1872), 12 Cox, CC 177, 14 Digest (Repl) 459, 4438. Rumping v Director of Public Prosecutions [1962] 3 All ER 256, [1964] AC 814, [1962] 3 WLR 763, 46 Cr App Rep 398, 3rd Digest Supp. Solomons v Gertzenstein (R) Ltd [1954] 2 All ER 625, [1954] 2 QB 243, [1954] 3 WLR 317, 38 Digest (Repl) 255, 638. Springhead Spinning Co v Riley (1868), LR 6 Eq 551, 37 LJCh 889, 19 LT 64, 32 JP 531, 28 Digest (Repl) 852, 837. Stevens v Chown, Stevens v Clark [1901] 1 Ch 894, 70 LJCh 571, 84 LT 796, 65 JP 470, 28 Digest (Repl) 746, 49. Tuck and Sons v Priester (1887), 19 QBD 629, 56 LJQB 553, 52 JP 213, 28 Digest (Repl) 854, 851. Windeatt v Windeatt [1962] 1 All ER 776, [1962] 1 WLR 527, 3rd Digest Supp. Wyatt v Wilson (1820), unreported.

Motion This was a motion by the plaintiff, Margaret, Duchess of Argyll, against the defendants (1) the Duke of Argyll, (2) R Stuart Campbell, the editor of the Sunday newspaper “The People”, and (3) Odhams Press Ltd the proprietors, printers and publishers of that newspaper. By her notice of motion, dated 13 November 1964, as amended, the plaintiff asked for injunctions to restrain the first defendant until trial or further order by himself, his servants or agents from communicating to the second or third defendants or any their servants or agents or to any other person and to restrain the second and third defendants until trial or further order by themselves or any their servants or agents from publishing any information of any of the following kinds namely: (a) secrets of the plaintiff relating to her private life, personal affairs or private conduct, communicated to the first defendant in confidence during the subsistence of his marriage to the plaintiff and not hitherto made public property; (b) information relating to the subject-matter of the following actions or proceedings or any of them (i) the action in the Queen’s Bench Division, the short title of which was “Louise Timpson and Ian, Marquess of Lorne v Margaret, Duchess of Argyll, 1959 T No 167”; (ii) the action in the Court of Session in Scotland, the short title of which was “The Most Noble Margaret, Duchess of Argyll v the Most Noble Ian Douglas, Duke of Argyll, No. C.378 of 1960”; (iii) the action in the Queen’s Bench Division of the High Court of Justice, the short title of which was “Vera Jane Whigham v Margaret, Duchess of Argyll and Gail Susan Corby, 1962 W No 2144”; (c) any particulars regarding the proceedings in the first defendant’s divorce petition in Scotland other than those authorised to be published under s 1(1)(b) of the Judicial Proceedings (Regulation of Reports) Act, 1926, and (d) any matters defamatory of the plaintiff. The claim for interlocutory relief on this last ground (d) was not proceeded with at that stage.    The relevant facts and statutory provisions are set out in the judgment.

Sir Andrew Clark QC and Paul Sieghart for the plaintiff.

Peter Foster QC and H M Davidson for the defendants.

Cur adv vult

9 December 1964. The following judgment was delivered.

UNGOED-THOMAS J read the following judgment. The plaintiff, Margaret, Duchess of Argyll, is the last of the three wives whose marriage to the Duke has ended in divorce. The first defendant is the Duke of Argyll; the second defendant, Mr Stuart Campbell, is editor of the Sunday newspaper “The People”; and the third defendants, Odhams Press Ltd are proprietors, printers and publishers of that paper. The plaintiff asks for injunctions to restrain the defendants from publishing, in articles by the Duke in the newspaper, “The People”, statements about the plaintiff which are said to be (i) in breach

of marital confidence; (ii) in respect of certain actions and proceedings in court; 614

(iii) in respect of evidence given at the hearing of the Duke’s divorce petition in the Scottish Court of Session; and (iv) statements defamatory of the plaintiff. The claim for interlocutory relief on this last ground has not been proceeded with at this stage, because the defendants rely on the plea of justification and, where that plea is relied on, then an interlocutory injunction is not granted unless it is clear that the plea must fail. In this case, it is, therefore, recognised that the issue on defamation is not appropriate for interlocutory decision; but subject to that, of course, the plaintiff reserves all her objections and rights.    Two articles by the Duke appeared before this motion came on for hearing and no question about them arises before me. Four more were threatened to be published, namely articles referred to as Nos 3–6 inclusive when the motion first came before me on 27 November. There was no objection to article No 5, and so on that day an undertaking was given not to publish any article except No 5; and this motion is now concerned with articles Nos 3, 4 and 6. Last Friday I gave my decision and granted injunctions subject to reconsideration of their precise form after this judgment. It is the reasons for that decision that this judgment now gives.    I will first state briefly the facts which form the background of this application. In March, 1951, the Duke married the plaintiff and in March, 1963, there was a decree of divorce by the Court of Session in Scotland; so that the plaintiff and the Duke had been married twelve years. The Duke had been married twice before. The plaintiff had been married once before. Both had issue by previous marriages. The Duke has now married his fourth wife, but the plaintiff has not remarried. In May, 1959, the Duke’s second wife who had remarried and become Mrs Timpson and her son by the Duke, the Marquess of Lorne, commenced an action against the plaintiff in the Queen’s Bench Division claiming an injunction and damages. The plaintiff did not defend that action and by consent an injunction against her was granted in chambers. The plaintiff says that she consented at

the express request of the Duke, and in reliance on the promise by him, that the subject-matter of that action would never be mentioned again; and that is one of the grounds on which she relies for one of the injunctions which she claims. That action has been referred to, and I shall continue to refer to it, as the Timpson action. In September, 1959, the Duke presented a petition for divorce from the plaintiff in the Court of Session in Scotland on the grounds of her adultery. Those proceedings are referred to as the divorce proceedings. In November, 1959, Mrs Timpson started committal proceedings against the plaintiff for alleged breach of the injunction in the Timpson action. Those proceedings are referred to as the committal proceedings. On 21 December 1959, the committal proceedings were heard by Paull J in chambers and no committal order was made. He gave directions in open court against publication about what happened in chambers. The secrecy of proceedings in chambers in the Timpson action, reinforced by Paull J’s statement, is relied on as a ground for one of the injunctions claimed. In October, 1960, the plaintiff filed a cross-petition in the divorce proceedings in Scotland and that is referred to as the cross-petition. In June, 1962, the plaintiff’s step-mother, Mrs Whigham, commenced an action against the plaintiff and another in the Queen’s Bench Division claiming damages for conspiracy, malicious prosecution, libel and injurious falsehood, based on allegations in the plaintiff’s cross-petition for divorce. Those proceedings are referred to as the Whigham action. On 29 May 1962, the cross-petition was withdrawn and no evidence was submitted in support of it. It is claimed by the plaintiff that publication of the charges made in that cross-petition is made unlawful by statute and that the plaintiff is entitled to an injunction which she claims to prevent their publication. On 15 October 1964, the Whigham action was settled by compromise on terms scheduled to the order. Counsel for all parties stated in open court that the claim for conspiracy, malicious prosecution and injurious falsehood was to be dismissed, but the plaintiff was

to pay Mrs Whigham £25,000 in respect of the libels 615 complained of and to pay her costs. It was stated by counsel in open court that all parties undertook that none of them would make a statement or comment on matters in dispute on that action to anyone, and the scheduled terms contained an undertaking to the court to the same effect. The plaintiff claims that she is entitled in the circumstances to have that undertaking enforced against the Duke by injunction. In February, 1963, the divorce proceedings were heard by the Court of Session and later a decree was made of dissolution of the marriage between the Duke and the plaintiff on the ground of the plaintiff’s adultery. Those very briefly are the facts and an indication of the grounds of the plaintiff’s claims.    These claims raise two important questions of law of general interest: (i) whether secret confidences made between husband and wife during their marriage will be protected by the court, and (ii) whether a party to divorce proceedings is entitled to apply to the court to enforce the Act of Parliament which prohibits publication with regard to those proceedings. The second question turns entirely on the interpretation of the Act of Parliament, but the first question raises difficult and profound questions of the policy of the law, its function in our society and how far it is still capable, if need be, of development to carry out that function. The answer concerns every home in the country.    This first question is raised by the first injunction for which the plaintiff asks. It is an injunction to restrain the defendants from publishing—and I quote the words in the notice of motion—

   “Secrets of the plaintiff relating to her private life, personal affairs or private conduct, communicated to the first defendant in confidence during the subsistence of his marriage to the plaintiff and not hitherto made public property.”

The first one-third of the third article falls within that description. The plaintiff in para 3 of her affidavit filed on 16 November describes a relationship of mutual confidence and shared secrets with her husband over a number of years, which is happily normal amongst married people. She says:

   “During a number of years before our marriage began to deteriorate, my ex-husband and I had a very close and intimate relationship in which we freely discussed with each other many things of an entirely private nature concerning our attitudes, our feelings, our hopes, aspirations and foibles, our past lives and previous marriages, our business and private affairs, and many other things which one would never have discussed with anyone else. Apart from explicit discussion, we naturally discovered many things about each other which, but for our close relationship, we would not have done. These things were talked about and done on the implicit understanding that they were our secrets and that we allowed the other one to discover them only because of the complete trust and mutual loyalty which obtained between us and created an absolute obligation of confidence.”

I turn now to the law. First I will consider how far the court will restrain breaches of confidence independently of confidences between husband and wife. It is clear that the court may restrain breach of confidence arising out of contract or any right to property. The question whether the court’s protection is limited to such cases was considered in two authorities to which I shall refer. The first is Prince Albert v Strange. In that case Queen Victoria and Prince Albert had made drawings and etchings of their children and other subjects of interest to the family. Impressions of them had come into the hands of the defendant’s who proposed to exhibit and publish copies of them and make and publish a catalogue of them. Prince Albert successfully applied to the court for an injunction to restrain them from doing so. The headnote, so far as is material, reads:

616

   “The maker and owner of etchings which have never been exhibited or published, and of which no impressions have been made except for his private use, but impressions whereof have, by improper and surreptitious means, come into the possession of other parties, is entitled to an injunction, not only to restrain those parties from exhibiting those impressions, and from publishing copies of them, but also to restrain them from publishing a catalogue compiled by themselves, in which an enumeration and descriptive account of those etchings is contained, and that, although there is no violation of any contract, either express or implied, between the owner and the compilers of the catalogue.”

Lord Cottenham LC dealt first with the plaintiff’s property in the etchings. He said ((1849), 1 Mac & G at p 44; 1 H & Tw at p 23):

   “Upon the first question, therefore, that of property, I am clearly of opinion that the exclusive right and interest of the plaintiff in the compositions and work in question being established, and there being no right or interest whatever in the defendant, the

plaintiff is entitled to the injunction of this court to protect him against the invasion of such right and interest by the defendant, which the publication of any catalogue would undoubtedly be; but this case by no means depends solely on the question of property; for a breach of trust, confidence, or contract, would of itself entitle the plaintiff to the injunction. The plaintiff’s affidavit states the private character of the work or composition, and negatives any licence or authority for publication, the gifts of some of the etchings to private friends certainly not implying any such licence or authority, and states distinctly the belief of the plaintiff, that the catalogue and the descriptive and other remarks therein contained, could not have been compiled or made, except by means of the possession of the several impressions of the etchings surreptitiously and improperly obtained. To this case no answer is made, the defendant saying only that he did not, at the time, believe the etchings to have been improperly obtained, but not suggesting any mode by which they could have been properly obtained, so as to entitle the possessor to use them for publication.”

Then Lord Cottenham LC in referring to another case, said ((1849), 1 Mac. & G at pp 45, 46; 1 H & Tw at p 25):

   “In that, as in this case, the matter or thing of which the party had obtained knowledge, being the exclusive property of the owner, he has a right to the interposition of this court to prevent any use being made of it, that is to say, he is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his. This was the opinion of LORD ELDON, expressed in the case of Wyatt v. Wilson, in 1820, respecting an engraving of George III, during his illness in which, according to a note with which I have been furnished by Mr. Cooper, he said, ‘If one of the late King’s physicians had kept a diary of what he heard and saw, this court would not in the King’s lifetime, have permitted him to print or publish it’.”

The diary there was the physician’s and the only thing which could be described in any sense as the property of the King was the information it contained and to which the physician was given the access. If such information can be regarded as within the protection afforded to property then similar confidential information communicated by a wife to her husband could also be so regarded.    Lord Cottenham LC continued ((1849), 1 Mac & G at pp 46, 47; 1 H & Tw at p 25):

   “Some minor points were raised at the bar, to which I will shortly advert. It was

contended that there ought not to be any injunction until the plaintiff 617 had established his title at law; and cases were referred to, in which it was supposed I had laid down rules establishing such a proposition. The cases referred to are cases in which the equitable jurisdiction arose from some legal title, and was exercised solely for the purpose of protecting the party in the enjoyment of such legal title, and they have no application to cases in which this court exercises an original and independent jurisdiction, not for the protection of a merely legal right, but to prevent what this court considers and treats as a wrong, whether arising from violation of unquestionable right, or from a breach of contract or confidence, as in the present case, and in the case of Mr. Abernethy’s lecturesc but even in the cases so referred to, I have always held, that it was for the discretion of the court to consider, whether the defendant might not sustain greater injury from an improper injunction than the

plaintiff from the delay in granting a proper one. In the present case, where the privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this court in these cases does not depend upon any legal right, and to be effectual, it must be immediate.”

________________________________________ c    Viz, Abernethy v Hutchison (1825), 1 H & Tw 28. Mr Abernethy was a distinguished surgeon and the lecturer at the theatre of St Bartholomew’s Hospital; ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

The second case to which I would refer is Pollard v Photographic Co, where a photographer, who had taken a negative likeness of a lady in order to supply her with copies for money, was restrained from selling or exhibiting copies, both on the ground that there was an implied contract not to use the negative for such purposes, and also on the ground that such sale or exhibition was a breach of confidence. North J said ((1888), 40 ChD at p 350):

   “Again, the recent case of Tuck and Sons v. Priester is very much in point. The plaintiffs were the unregistered owners of the copyright in a picture, and employed the defendant to make a certain number of copies for them. He did so, and he also made a number of other copies for himself, and offered them for sale in England at a lower price. The plaintiffs subsequently registered their copyright and then brought an action against the defendant for an injunction and for penalties and damages. The lords justices differed as to the application of the Copyright Acts to the case, but held unanimously that [and this is the important part] independently of those Acts, the plaintiffs were entitled to an injunction and damages for breach of contract.”

   North J quoted from Lindley LJ and said ((1888), 40 ChD at p 351):

   “Then LINDLEY, L.J., says ((1887), 19 QBD at p 638): ‘I will deal first with the injunction, which stands, or may stand, on a totally different footing from either the penalties or the damages. It appears to me that the relation between the plaintiffs and the defendant was such that, whether the plaintiffs had any copyright or not, the defendant has done that which renders him liable to an injunction. He was employed by the plaintiffs to make a certain number of copies of the picture, and that employment carried with it the necessary implication that the defendant was not to make more copies for himself, or to sell the additional copies in this country in competition with his employer. Such conduct on his part is a gross breach of contract and a gross breach of faith, and in my judgment, clearly entitles the plaintiffs to an injunction, whether they have a copyright in the picture or not’. That case is the more noticeable, as the contract was in writing; and yet it was held to be an implied condition that the defendant should not make any copies for himself. The phrase ‘a gross breach of faith’ used by LINDLEY, L.J., in that case applies with equal force

to the present, when a lady’s feelings are shocked by 618 finding that the photographer she has employed to take her likeness for her own use is publicly exhibiting and selling copies thereof. It may be said that in the present case the property in the glass negative is in the defendant, and that he is only using his own property for a lawful purpose. But it is not a lawful purpose to employ it either in

breach of faith, or in breach of contract. [There we have the contrast which is important to this case.] Again in Murray v. Heath, the plates were the property of the defendant, for they had not been delivered to or accepted by the plaintiff. So in the case of Duke of Queensberry v. Shebbeare the defendant was restrained from publishing a work of the Earl of Clarendon, although a person had been expressly allowed by the owner to make and retain as his own a copy of the manuscript, which copy he had sold to the defendant. There too an agreement or condition was implied that the manuscript should not be published. Again, it is well-known that a student may not publish a lecture to which he has been admitted, even though by his own skill he has taken a copy of it in shorthand; and the receiver of a letter may not publish it without the writer’s consent, though the property in the paper and writing is in him; and many similar instances might be given.”

These cases, in my view, indicate (i) that a contract or obligation of confidence need not be expressed but can be implied (which, I confess somewhat to my surprise, I understood to be disputed at one stage at any rate of the argument); (ii) that a breach of confidence or trust or faith can arise independently of any right of property or contract other, of course, than any contract which the imparting of the confidence in the relevant circumstances may itself create; (iii) that the court in the exercise of its equitable jurisdiction will restrain a breach of confidence independently of any right at law.    Now I turn to the confidences between husband and wife during marriage. Marriage is, of course, far more than mere legal contract and legal relationship, and even legal status; but it includes legal contract and relationship. If, for the court’s protection of confidence and, contrary to my view, the confidence must arise out of a contractual or property relationship, marriage does not lack its contract. It is basically a contract to be and, according to our Christian conception of marriage, to live as man and wife. It has been said that the legal consideration of marriage—that is the promise to become and to remain man and wife—is the highest legal consideration which there is. And there could hardly be anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed. To express it is superfluous; it is clear to the least intelligent. So it seems to me that confidences between husband and wife during marriage are not excluded from the court’s protection by the criteria appearing in the cases to which I have referred. Nevertheless, are there other considerations which should deny them that protection?    In Rumping v Director of Public Prosecutions, the House of Lords considered the question whether an intercepted communication between husband and wife was admissible against the husband in evidence for the prosecution, and it was decided that it was so admissible. In that case the appellant, who was the mate of a Dutch ship, was convicted of non-capital murder committed at Menai Bridge. Part of the evidence for the prosecution admitted at his trial consisted of a letter that he had written to his wife in Holland which amounted to a confession. The appellant had written the letter on the day of the killing, on board his ship after it had left Menai Bridge for Liverpool; he had handed the letter in a closed envelope to a member of the crew requesting him to post it

as 619 soon as the ship arrived at a port outside England. The appellant was arrested when the ship reached Liverpool, and after his arrest the member of the crew handed the

envelope to the captain of the ship who handed it over to the police. The member of the crew, the captain and the translator of the letter gave evidence at the trial but the wife was not called as a witness. On appeal against conviction on the ground that the letter was wrongly admitted in evidence, it was held that the appellant was rightly convicted because the letter was admissible in evidence.    The House of Lords in that case directed their observations to the admissibility of such evidence in legal proceedings, and not to the different question whether, otherwise than for the purpose of such evidence, communications were subject to the protection of the law. This, I think, appears from the speech of Lord Morris Of Borth-Y-Gest with which the majority of the lords agreed. He saidd:

________________________________________ d    [1962] 3 All ER at p 268, letter e; [1964] AC at p 848 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “It was contended that it was and is a rule of the common law applying both in civil and in criminal cases that all communications made between husband and wife during marriage are inadmissible in evidence. It was submitted that the rule applies with equal force to a communication intended by one spouse for the other even though never received.”

Then he saide: ________________________________________ e    [1962] 3 All ER at p 268, letter g; [1964] AC at p 848 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “These contentions involve the further contention, which now calls for inquiry, that at common law there were two separate rules: that apart from what I may call the general common law rule that one spouse was incompetent to give evidence concerning the other there was a separate and distinct rule that no person at all could give any evidence of any communication between spouses. My lords, though authority is not lacking which pronounces the general rule that at common law husbands and wives were not allowed to give evidence for or against each other, I can find no authority in support of the suggested separate and distinct rule.”

These remarks are clearly limited to admissibility of the communications in evidence and not to their protection where no question of admitting in evidence arises.    Lord Morris Of Borth-Y-Gest indicatesf that, if there were a rule that communications between husband and wife could not be given in evidence in legal proceedings, it would be necessary to weigh this against another and competing requirement of public policy, that in legal proceedings the truth should be ascertained. Then Lord Morris Of Borth-Y-Gest saidg:

________________________________________ f    [1962] 3 All ER at p 276; [1964] AC at p 860 g    [1962] 3 All ER at p 276, letter f; [1964] AC at p 860 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “Had occasion arisen in the past for debate whether on grounds of public policy some such rule as that contended for was desirable it seems to me that there would have been competing and diverging aspects of public policy to be weighed. Respect

is due to the confidences of married life: but so is respect due to the ascertainment of the truth. Marital accord is to be preserved: but so is public security.”

All the lords of appeal recognised the importance in the eyes of the law of preserving confidential communications between husband and wife inviolate. They all agreed that this was a reason for the old rule that husband and wife were not competent to give evidence against each other. For the need to preserve confidential communications between husband and wife to be a reason for a rule of the law necessarily establishes to my mind that the preservation of those communications inviolate is an objective of public policy. Viscount Radcliffe went furtherh, in this respect differing from the others and,

therefore, 620 dissenting as to this conclusion. He considered that it was not only a reason for the rule but that it was also a principle of the law that such communications should not be admissible in evidence in legal proceedings.

________________________________________ h    [1962] 3 All ER at p 267, letter f; [1964] AC at p 846 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   I come now to the passages in the speeches which bear on this question of public policy. Lord Reid saidi:

________________________________________ i    [1962] 3 All ER at p 257, letter i; [1964] AC at p 831 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “The case for the appellant is that there is a rule or principle of the common law which protects communications between husband and wife which are not intended to be disclosed to others. It was argued that, if a third person overhears such a conversation or intercepts or obtains possession of a letter or other writing from one spouse to the other, the law will not require or permit him to disclose that communication in evidence in any case, civil or criminal.”

Then he saidj: ________________________________________ j    [1962] 3 All ER at p 258, letter g; [1964] AC at p 832 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “On the other hand there are many clear and forcible expressions of opinion that it is contrary to public policy to require disclosure of confidential communications between husband and wife: it is better that injustice should sometimes be done by preventing such disclosure than that the fear of possible future disclosure should be a general embarrassment to marital relations. It is true that most if not all of these opinions were expressed with regard to direct disclosure by one of the spouses. But it would be almost as embarrassing to marital relations if spouses had to fear possible future disclosure by a witness who was an eavesdropper or who had intercepted or stolen a letter from one spouse to the other. Any legal principle based on such considerations would demand that communications between husband and wife should be equally protected both in civil and criminal proceedings against disclosure by one of the spouses or by some third person. So, if I could be satisfied that these considerations had been generally accepted as a basis of a doctrine of public policy, I would not be deterred from applying them to this case by the mere fact that no rule regarding disclosure of such communications by third persons had

ever been formulated. The rarity of cases involving such disclosure by third persons would sufficiently explain the absence of any such rule.”

In this passage, as appears from its opening words, the disclosure referred to is disclosure which it is possible “to require”, ie, disclosure in legal proceedings. Then Lord Reid expresses his conclusionk:

________________________________________ k    [1962] 3 All ER at p 260, letter d; [1964] AC at p 835 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “I can state my conclusion in this way. Before 1853 there was no established rule or principle which would have enabled this appeal to succeed. There were, however, statements with regard to public policy which would have carried the appellant a very long way. But public policy is essentially a matter for Parliament, and the terms of s. 3 of the [Evidence Amendment Act, 1853] show that the Parliament of that time did not regard it as contrary to public policy to permit disclosure of communications between husband and wife.”

Again, I read “disclosure” as meaning disclosure in evidence in legal proceedings and “public policy” as considered in relation to those proceedings. Lord Reid concluded:

   “I cannot find in anything that has happened since that date sufficient ground to entitle the court now to take a different view as to public policy, and I can find no other basis on which this appeal could succeed. I therefore move that this appeal should be dismissed.“

621 Lord Radcliffe saidl:

________________________________________ l    [1962] 3 All ER at p 261, letter c; [1964] AC at p 836 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “If evidence had been tendered in this form it would have raised explicitly the issue that lies behind the present appeal, in which we have to inquire whether the principle is confined merely to securing that the spouses themselves do not become the agents of disclosure by appearing as witnesses or goes further and for reasons of public policy protects the marital confidences as such, in whatever form it is sought to expose them as material of evidence.”

Lord Radcliffe referred ([1962] 3 All ER at p 262; [1964] AC at pp 838, 839) to the case of Monroe v Twisleton ((1802), Peake, Add Cas 219 at p 220) and the often quoted statement of Lord Alvanley CJ:

   “In Monroe v. Twisleton ((1802), Peake, Add Cas 219 at p 220) LORD ALVANLEY, C.J., said of a divorced wife who was called to prove a contract made during the marriage: ‘To prove any fact arising after the divorce this lady is a competent witness, but not to prove a contract or anything else which happened during the coverture. She was at that time bound to secrecy; what she did might be in consequence of the trust and confidence reposed in her by her husband; and miserable indeed would the condition of a husband be, if, when a woman is divorced from him, perhaps for her own misconduct, all the occurrences of his life, entrusted

to her while the most perfect and unbounded confidence existed between them, should be divulged in a court of justice. If she might be a witness in a civil proceeding, she might equally be so in a criminal prosecution; and it never shall be endured that the confidence which the law has created while the parties remained in the most intimate of all relations, shall be broken whenever, by the misconduct of one party (for misconduct alone can have that effect), the relation has been dissolved’.”

   Then Lord Radcliffe continued ([1962] 3 All ER at pp 262, 263; [1964] AC at p 839):

   “I must pause on this decision. It does not stand alone. It has been ‘approved again and again’—(see R. v. Algar ([1953] 2 All ER 1381 at p 1383; [1954] 1 QB 279 at p 286) per LORD GODDARD, C.J.). Although the witness was rejected on the ground of incompetency, the reason of rejection could not have been a concern to avoid strain or embarrassment in any existing marital relation, for that relation had been determined by divorce. The principle of rejection could only have been that there was a sanctity in marital confidences themselves which made them an inadmissible subject of evidence in legal proceedings. To say that it was a decision on competence does not therefore, I think, diminish its importance for our purpose. The witness was treated as incompetent solely because of the proposed content of her evidence: it was the content then that was the basis of exclusion not the witness. This decision is the first of several in which the principle of preserving the confidence of the conjugal relation was applied in circumstances in which there was no existing conjugal relationship to disturb. I infer from this that the court’s concern was that no marriage relation, while it subsisted, should be infected by the fear or suspicion that things said only by reason of the special confidence of that relation might later become the material of legal evidence affecting the speaker. Perhaps that is no more than another way of saying that the court appreciated the real impropriety of such a disclosure.”

   Lord Radcliffe went on ([1962] 3 All ER at p 263; [1964] AC at pp 839, 840):

   “Monroe v. Twisleton was decided in 1802. In 1805 in Aveson v. Lord Kinnaird ((1805), 6 East 188, at p 193) LORD ELLENBOROUGH, C.J., referred to that case

and 622 said that LORD ALVANLEY had mentioned a ‘general doctrine, that trust and confidence between man and wife shall not be betrayed, and as such it is sound doctrine’. In 1824, in Doker v. Hasler BEST, C.J., also referred to Monroe v. Twisleton and said of it: ‘I remember that in that case, in which I was counsel, LORD ALVANLEY refused to allow a woman, after a divorce, to speak to conversations which had passed between herself and her husband, during the existence of the marriage. I am satisfied with the propriety of that decision, and I think that the happiness of the marriage state requires that the confidence between man and wife should be kept for ever inviolable.’ There a widow was to be called as witness and it was therefore another case in which nothing could require protection except the content of the confidential communications made during the former marriage. O’Connor v. Marjoribanks was to the same effect. A widow’s evidence was again in question and the court (TINDAL, C.J., COLTMAN and MAULE, JJ.) after full consideration, unanimously approved LORD ALVANLEY’S decision in Monroe v. Twisleton as good law.”

   Later Lord Radcliffe saidm: ________________________________________ m    [1962] 3 All ER at p 264, letter a; [1964] AC at pp 840, 841 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “So much then for the ‘legal policy of marriage’ in relation to the law of evidence. Its aim was, I think, the general one ‘to ensure conjugal confidence’ and it rested on a much wider principle than that of excluding witnesses on the ground of interest in the subject-matter of a suit.”

It does not appear to me to detract from the obvious inherent strength of these observations, if I may respectfully so refer to them, that the majority concluded that nevertheless Parliament, by the Evidence Acts, showed that the disclosure of communications between husband and wife were to be permitted in legal proceedings. In particular—and this is what matters for our purposes—Lord Radcliffe’s observations, so it seems to me, stand, except in so far as they must be applied subject to the decision of the majority of the House, that the policy of the Evidence Acts had to prevail. These Acts and their policy were directed, however, to the giving of evidence in legal proceedings and not, as in the present case, to communications between spouses, independently of their admissibility in evidence in legal proceedings. Lord Radcliffe’s observations, therefore, appear to me to apply without reservation to such a case as this.    Lord Morris Of Borth-Y-Gest ([1962] 3 All ER at p 271; [1964] AC at pp 851, 852) summarised his review of the authorities, directed, as it was, to the exclusion of communications between spouses in evidence in legal proceedings. He saidn:

________________________________________ n    [1962] 3 All ER at p 271, letter a; [1964] AC at pp 851, 852 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “The cases to which I have so far referred furnish ample authority for the proposition that at common law in civil cases a spouse would not be admitted as a witness either for or against the other spouse and good reasons are assigned as the basis of this rule. But I discern no authority for the different proposition that no evidence may be given by anyone in regard to a communication made between a husband and a wife.”

Later he saido: ________________________________________ o    [1962] 3 All ER at p 276, letter c; [1964] AC at p 860 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “My lords, a survey of the authorities and of the statutory provisions leads me to the view that there has never been a rule at common law that no evidence may be given by anyone as to communications made between husband and wife during marriage. There has however been a recognition of the feeling or public sentiment that in ordinary circumstances it is seemly that the confidences of married life should

be respected and protected. That 623 recognition found expression as one of the various reasons which were assigned for the old general rule as to the incompetence of husbands and wives as witnesses. That general rule may have made it unnecessary to consider the desirability of some such rule as is suggested in the

argument for the appellant and no occasion arose to assess or to define, as a matter of public policy, the extent to which or the circumstances under which, the confidences of married life should as a matter of law be protected. When, however, by the [Evidence Amendment Act, 1853] the general rule was changed no rule was enacted to the effect that no evidence could be given of any intermarital communications: nor was it so enacted when the [Criminal Evidence Act, 1898] was passed.”

Lord Hodson also mentioned ([1962] 3 All ER at p 277; [1964] AC at pp 861, 862) the need, recognised by the law, to protect confidential communications between husband and wife, and he limited his decision ([1962] 3 All ER at p 279; [1964] AC at p 864) to the admissibility of those communications in evidence. Lord Pearce expressed himself to the same effect in two short passages ([1962] 3 All ER at pp 279, 280; [1964] AC at pp 866, 867). He saidp:

________________________________________ p    [1962] 3 All ER at p 279, letter i; [1964] AC at p 866 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “The common law has been concerned to protect the unity of the spouses and marital confidences. Before 1853 that concern was satisfied by the rule that no spouse could give evidence for or against the other. And that concern was probably at least as much responsible for the rule as was the possibility of bias. There was therefore no need to make a rule excluding, as such, communications between husband and wife. Had such a need arisen, it may be that according to the views then held such a rule would have been evolved, after weighing the disadvantage in principle of disclosing such communications against the disadvantage in principle of excluding evidence which could lead the court to truth and justice.”

Then Lord Pearce saidq: ________________________________________ q    [1962] 3 All ER at p 280, letter h; [1964] AC at p 867 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “I doubt if the courts would still be entitled after the [Evidence Amendment Act, 1853] and in the light of its terms, to evolve such a rule from the old common law doctrine of the unity of the spouses and the confidentiality of their private communications; but be that as it may, they did not seek to do so. R. v. Pamenter gives no valid support for such a rule nor is there any other case which does. I appreciate the weight of those considerations which would tell in favour of such a rule were the matter res integra, but I venture to think that the other factors which fall to be considered on a question of public policy weigh more heavily.”

   It thus seems to me that the policy of the law, so far from indicating that communications between husband and wife should be excluded from protection against breaches of confidence given by the court in accordance with Prince Albert v Strange, strongly favours their inclusion, and in view of that policy it can hardly be an objection that such communications are not limited to business matters. Of course, the relationship between husband and wife is a delicate relationship. As Atkin LJ said in the famous passage in Balfour v Balfour ([1918–19] All ER Rep 860 at p 865; [1919] 2 KB 571 at p 579), at common law in respect of promises between husband and wife

   “… each house is a domain into which the King’s writ does not seek to run, and to which his officers do not seek to be admitted.”

The protection of confidential communications between husband and wife is not,

however, designed to intrude into this domain but to protect it, not to break 624 their confidential relationship but to encourage and preserve it. That is why it is the policy of the law and a reason for the old general rule of the common law which made husband and wife incompetent to give evidence in legal proceedings against each other.    There comes then, of course, the practical difficulty of deciding what communications between husband and wife should be protected. Lord Morris Of Borth-Y-Gest refers in Rumping v Director of Public Prosecutions ([1962] 3 All ER at pp 269, 270; [1964] AC at pp 849–851) to this as a reason for the old rule for excluding all evidence by husband and wife against each other, and not merely confidential communications between them. Such a difficulty would be a very good reason for not distinguishing between confidential and other information in the giving of evidence in legal proceedings. There quick decisions have to be made in the course of the giving of the evidence itself, and to be practical and effective a rule would have to be readily and quickly applicable; but an application for an injunction to restrain publication is based on the danger of the publication of particular communications which there is ample time for the court to consider. Of course, even in such cases, decision has to be made whether a communication between husband and wife is confidential and should be protected. If this were a well-developed jurisdiction doubtless there would be guides and tests to aid the court in exercising it. If, however, there are communications which should be protected and which the policy of the law recognises should be protected, even to the extent of being a foundation of the old rule making husband and wife incompetent as witnesses against each other, then the court is not to be deterred merely because it is not already provided with fully developed principles, guides, tests, definitions and the full armament for judicial decision. It is sufficient that the court recognises that the communications are confidential, and their publication within the mischief which the law as its policy seeks to avoid, without further defining the scope and limits of the jurisdiction: and I have no hesitation in this case in concluding that publication of some of the passages complained of would be in breach of marital confidence.    The defendants then submitted that, even if the plaintiff would otherwise be entitled to this injunction which she claims for breach of confidence, nevertheless she ought not to be granted this relief, first, on the ground that she herself had broken the mutual obligation of confidence between herself and her husband by some articles by her published in the “Sunday Mirror” last year; and secondly, by her attitude to the sanctity of marriage as set out in Lord Wheatley’s judgment in the divorce proceedings which I have mentioned.    None of the matters complained of in the plaintiff’s articles disclosed anything complained of in the Duke’s articles. The Duke does not say that he can disclose matters because the plaintiff has already disclosed those same matters; but what he says is that the plaintiff has betrayed the marriage relationship in some ways and so he should be free to betray it in others. In my view, by far the most serious complaint about anything in the plaintiff’s articles is her statement in the article of 9 June 1963, which is exhibited to the plaintiff’s affidavit, that her husband had been taking purple hearts or, to give them their medical name, drinamyl tablets. This, in my view, was a serious breach of confidence,

nor, rightly, did the plaintiff’s counsel seek to submit otherwise. The other information in the plaintiff’s articles most relied on by the defendants was that the Duke’s castle at Inverary was saved from being closed by assistance from the plaintiff’s father and a legacy from a Miss Temple. Even after allowing for the disclosure about the purple hearts, however, the accumulation of the Duke’s breaches of most intimate confidences in his articles are, to my mind, of an altogether different order of perfidy. Indeed, the plaintiff’s article of 2 June 1963, though not free from objection, yet leaves on my mind a more sympathetic and favourable impression of the Duke than do his own articles. Lord Wheatley said that by 1960 the plaintiff’s attitude to the sanctity of marriage was—and I quote—

625

   “what the moderns might call sophisticated but what in plain language can only be described as wholly immoral.”

The breaches of confidence of which the plaintiff now complains appear to be of confidences in the early years of the marriage, well before the period to which Lord Wheatley limited his strong condemnation. When these confidences were made the relationship of the plaintiff and the Duke was apparently that described in para 3 of the plaintiff’s affidavit from which I have already quoted—the normal confidence and trust between husband and wife.    Should, then, the plaintiff be denied the injunction which she would otherwise get because she has herself to an extent broken confidence and because she, after the confidences of whose breach she complains, adopted an immoral attitude towards her marriage? A person coming to equity for relief—and this is equitable relief which the plaintiff seeks—must come with clean hands; but the cleanliness required is to be judged in relation to the relief that is sought.    First, with regard to the plaintiff’s articles, for the reasons already indicated I do not consider that the plaintiff’s own articles justify the objectionable passages in the Duke’s articles or, of themselves, should disentitle the plaintiff to the court’s protection.    Secondly, with regard to the plaintiff’s immorality, it was, of course, the basis for the divorce and the termination of the marriage. Such behaviour makes the confidential relationship of marriage impossible. However, what it does is to undermine confidence for the future and not betray the confidences of the past. If, on divorce, the innocent party is to be licensed to reveal marriage confidences, is the guilty party to be free to do so too? That would be piling injury on injury to the innocent and would be plainly intolerable, but the alternative would be that confidences, like costs, should follow the event. Yet the responsibility for the breakdown of a marriage, involving as it does the most delicate and intimate relationship, cannot always be exclusively attributed to the spouse against whom the divorce decree is granted. And is the marriage, to whose sanctity a spouse’s attitude is material, the marriage between the spouses before the court, or is it to be marriage in general? Take, for example, the case of the Duke on whose behalf this submission is made. Is the attitude of the Duke towards his former marriages to be taken into consideration, or is it to be assumed that he travelled the road to Damascus between each marriage? And if the divorce decree is not to be decisive, then another inquiry to allocate the responsibility is to be undertaken; in which case the general course on such an interlocutory application as this would be to hold the status quo by granting an injunction

pending trial. And if, as I have concluded, it is the policy of the law (which is the basis of the court’s jurisdiction) to preserve the close confidence and mutual trust between husband and wife, then that policy and the purpose of that jurisdiction would indeed be impaired if subsequent adultery by one spouse, resulting in divorce, were to release the other spouse from obligation to preserve their earlier confidences. To repeat words already quoted from Lord Radcliffe’s speech in Rumping v Director of Public Prosecutions ([1962] 3 All ER at p 263, letter b; [1964] AC at p 839):

   “… the court’s concern was that no marriage relation, while it subsisted, should be infected by the fear or suspicion that things said only by reason of the special confidence of that relation might later become … ”

—and I substitute for the words “… the material of legal evidence affecting the speaker” the word “disclosed”.    It is not in my view just that adultery should have retrospective operation on a marriage and not only break the marriage for the future but nullify it for the past. The plaintiff’s adultery, repugnant though it be, should not in my view licence the husband to broadcast unchecked the most intimate confidences of earlier and happier days.

626    And it is in my view established by Lord Ashburton v Pape, in accordance with the references already made to Prince Albert v Strange, that an injunction may be granted to restrain the publication of confidential information not only by the person who was a party to the confidence but also by other persons into whose possession that information has improperly come. In Lord Ashburton v Pape, P was a bankrupt and his discharge was opposed by, amongst others, the plaintiff. P obtained by a trick letters which had been written by the plaintiff to his solicitor and were therefore privileged. P had these letters copied and proposed to use them in the bankruptcy proceedings as secondary evidence of the contents of the letters which, owing to privilege, he could not produce. The plaintiff brought an action for an injunction to restrain P from disclosing the letters or the copies, and Neville J made an order restraining him from doing so except in the bankruptcy proceedings. It was held that the fact that the copies, although improperly obtained, might be admissible as secondary evidence in the bankruptcy proceedings, was no answer to the action, and that the plaintiff was entitled to an absolute injunction without any exception. Swinfen Eady LJ said ([1911–13] All ER Rep at p 711; [1913] 2 Ch at p 475):

   “The principle upon which the Court of Chancery has acted for very many years has been to restrain the breach the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. Injunctions have been granted to give effectual relief, that is not only to restrain the confidential information being divulged but to restrain copies being made of any record of that information. If copies have already been made the court will restrain the matter being further copied, and restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it.”

Sir Herbert Cozens-Hardy MR said ([1911–13] All ER Rep at p 710; [1913] 2 Ch at p 472):

   “… one passage from Lamb v. Evans ([1893] 1 Ch 218 at p 235), in a judgment of KAY, L.J., … states briefly and, I think, with perfect accuracy what the true law is upon this subject. He says referring to Morison v. Moat: ‘Then the judgment goes on to give several instances, and many of them are of cases where a man, being in the employment of another, has discovered the secrets of the manufacture of that other person, or has surreptitiously copied something which came under his hands while he was in the possession of that trust and confidence … and anybody who has obtained that secret from him has also been restrained from using it’.”

I come now to the second injunction asked for which is to restrain communication or publication of information relating to the subject-matter of the Timpson action. The latter two-thirds of the third article publishes matter which was the subject of those proceedings. Any matter in that part of the article which may not have been the subject of those proceedings is so inextricably mixed up with what was, that no distinction was sought to be made between them before me; so all that part of the article stands or falls together.    The first ground on which this application by the plaintiff is based is an alleged agreement between the plaintiff and the Duke that in consideration of her agreeing to submit to an injunction, which she did, he would not disclose matters raised in that action. The injunction by consent was granted, not in open court, but in chambers. The plaintiff, in her affidavit, says of her husband:

   “… he promised me faithfully that if I would consent to an injunction he would

ensure that Mrs. Timpson and Ian Lorne [that was the other 627 plaintiff to the action and the Duke’s heir] would claim no damages, that I would never hear of the matter again … I therefore consented, and a permanent injunction was granted in chambers in August, 1959.”

Her solicitor, Mr Jobson, swore an affidavit in para 3 of which he says:

   “Accordingly the Duchess gave me firm instructions to submit to an injunction on her behalf. She told me that [the Duke] had suggested that I should telephone him first, and I therefore did so. There is now produced and shown to me a true copy of an attendance note which I dictated early the following morning after that telephone conversation and which accurately records what was said on both sides.”

And that note concludes with the statement,

   “… there was to be no information given to the press if an injunction was granted … ”

The Duke himself has given an account of this incident in his affidavit. He says:

   “… before the proceedings were actually commenced I knew that it was the intention of Mrs. Timpson and the Marquess of Lorne to sue and I tried hard to persuade the plaintiff to submit to an injunction in order to bring the proceedings to an end and prevent the nature of the statements being made known to the public, because I realised that, no matter how clearly established it might be that the statements were utterly untrue, nevertheless any disclosure of them to the public could only do harm. It is not correct to say, as the plaintiff does, that I promised her

faithfully that if she would consent to an injunction I would ensure that Mrs. Timpson and the Marquess of Lorne would claim no damages and the plaintiff would never hear of the matter again; all that I promised was that I would try my best to ensure that.”

Thus, the Duke’s only answer to the plaintiff’s statement that if she would consent to an injunction he would ensure that she would never hear of the matter again, was that he did not promise to do so but only to try his best to do so. Feeding “The People” with that matter is hardly trying his best to ensure that the plaintiff would never hear of it again.    During the hearing, however, it was suggested that the Duke’s promise was not on his own behalf but as agent for the plaintiffs in the Timpson action. It appears from the Duke’s own affidavit, however, particularly when taken in conjunction with the nature of the subject-matter of the action, that he was himself anxious to bring the proceedings to an end and certainly he had very good reason for being anxious to do so. Nor does the Duke’s affidavit, which I have quoted, appear to be consistent with his just acting as agent. Even if the Duke were now to qualify his affidavit so as to say that the promise was made not for himself but for the plaintiffs in the Timpson action, this would, at its highest in the Duke’s favour, lead to no more than a conflict of evidence which could only be resolved at the trial, and would not in my view defeat the prima facie case established by the plaintiff on this issue.    The plaintiff’s prima facie case is, however, further supported by the reflection that it would be a somewhat futile agreement for the plaintiff, if the Duke, who knew of the subject-matter of the action, would be free to disclose it; and all the more so as the submission by the plaintiff to an injunction was made in chambers and the parties to that action, including the plaintiff in this case, are bound not to disclose what happened there. In fact, in this case the prohibition on such disclosure was later expressly reinforced by the observations of Paull J in open court. He said, to give his precise words:

   “If I find that any statements are made or reports are published purporting to say what has happened before me in chambers I shall take steps to see that the matter is reported to the appropriate authorities for action. It is essential for the proper

administration of justice that statements should 628 not be broadcast with regard to matters heard in chambers. Such matters concern the parties only, and no-one else.”

It appears to me that the inherent probabilities of this situation so strongly support the plaintiff’s evidence that, even if the Duke were to amend his affidavit so as to state that his promise was made as agent for the plaintiffs and not in his own behalf at all, I would on this issue, for the purposes of this motion, were it necessary, and were I driven so to do, accept the plaintiff’s evidence rather than that of the Duke.    The defendants argued that no injunction should be granted on the ground that the information about the subject-matter of the action was obtainable elsewhere, for example from affidavits. It is not in evidence that the information was so obtained or is so obtainable; and it was maintained for the plaintiff that it could not be so obtained in this case. However that may be, what I am concerned with here is that it is the Duke in this case who, in fact, is supplying that information; and I am not to be beguiled from that fact by speculation as to other possible sources that may or may not be available for providing that same information. Prima facie the Duke is supplying that information in breach of

his agreement with the plaintiff.    The defendants then say that the plaintiff has herself referred to the Timpson case in an article which was published in the “Sunday Mirror” on 16 June 1963. But the nub of the non-disclosure, as I venture to think would be clear to anyone who knew of the subject-matter of the action, was the nature of the slander; and that was not alluded to at all by the plaintiff. Even if the plaintiff should not have referred to the Timpson action as she did, this should not, in my view, prevent the prohibition of the incomparably more serious disclosure of the subject-matter of the action.    My conclusion, therefore, is that the injunction asked for with respect to this action should be granted. For the application for this injunction the plaintiff also submitted that the publication was in contempt of court as being of matters heard in chambers whose secrecy was emphasised by Paull J’s statement which I have read; but in view of my conclusions on the alleged agreement between the plaintiff and the Duke, I find it unnecessary to examine this submission and the arguments in opposition to it.    I come now to the application for the injunction which raises the second important point of law in this case, namely, whether a party to divorce proceedings is entitled to apply to the court to enforce the Act of Parliament which prohibits publication about those proceedings. It would be convenient to take the last three injunctons applied for together to some extent, namely, the injunctions to restrain publication of the subject-matter of the cross-petition for divorce in Scotland, or of the Whigham action or any particulars of the Duke’s divorce petition other than those authorised by the Judicial Proceedings (Regulation of Reports) Act, 1926.    The cross-petition and the Whigham action go together, to some extent, because the cross-petition included a reference to the subject-matter of the Whigham action, and the references in the articles to the Whigham action are in such form as to be dependent on the references to the cross-petition in the only passage in the articles to which they are relevant. Thus, if the reference to the cross-petition should be restrained, then so should the references to the Whigham action which are bound up with them. The objection to the communication or publication of the subject-matter of the cross-petition is based on the Act of 1926 (as is the objection to the publication of particulars of the Duke’s divorce petition) and of the subject-matter of the Whigham action on an undertaking by the parties to the court in that action not to make any statement or comment about the matters in dispute to anybody.    The cross-petition was abandoned and I was informed—and I understand it to be common ground—that no evidence was given in support of it.

629    So I turn to the Judicial Proceedings (Regulation of Reports) Act, 1926. It is a very short Act and I would read it so far as it is relevant. Section 1 reads:

   “(1) It shall not be lawful to print or publish, or cause or procure to be printed or published—(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals; (b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, any particulars other than the following, that is to say:—(i) the names, addresses and occupations of the parties

and witnesses; (ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given; (iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment: Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection. (2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding five hundred pounds, or to both such imprisonment and fine: Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act. (3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General.”

It is, therefore, clear from s 1(b)(i) and (ii), that, as no evidence was given in support of the cross-petition, it is not lawful to print or publish or cause or procure to be printed or published any particulars of the cross-petition other than the names, addresses and occupations of the parties. In particular, it is not lawful to publish the charges in the cross-petition which, as I have said, include the subject-matter of the Whigham action. The relevant passage in art 6 written by the Duke does specify this charge in the cross-petition and therefore under the Act of 1926 its publication is not lawful.    The passages on which the application for the last injunction against publication of particulars of the Duke’s divorce petition are based appear in the Duke’s sixth article and give details of certain photographs and of the contents of certain letters which were given in evidence on the hearing of the Duke’s divorce proceedings, and it appears from the article itself that they relate to these divorce proceedings. Such publication of evidence is, in my view, clearly unlawful under s 1(1)(b) of the Act of 1926, except in so far as it is contained in—and I quote from the Act—“… the judgment of the court and observations made by the judge in giving judgment”. There is in these passages in the article certain evidence which was included in Lord Wheatley’s judgment, and that would, of course, have to be excluded from any injunction granted.    It is then submitted for the defendants, however, that, even though the Act of 1926 makes the publication not lawful, yet the plaintiff has no status for seeking to prevent publication. This submission is made on the ground that the Act makes the unlawful action an offence. It is argued that a prosecution is the only remedy for contravention of the Act and that an individual injured or threatened with injury by unlawful publication has no remedy under the Act irrespective, of course, of how damaging it might be to him. The law on this question was reviewed by the Court of Appeal in Solomons v R Gertzenstein Ltd. Although the review was obiter and there was a difference of opinion on the application of the relevant legal principles to the statutes under consideration in

that case, yet the views of all three lords justice were in accord on what those legal 630

principles were, and it is only for the purpose of ascertaining those principles that I turn to that case. Somervell LJ said ([1954] 2 All ER at p 629; [1954] 2 QB at p 253):

   “The final question is whether an offence under the statute confers a civil right of

action for damages on a person who suffers, as did the plaintiff here, by the commission of the offence.”

Then a little later he continued ([1954] 2 All ER at p 630; [1954] 2 QB at p 253):

   “There have been Acts which expressly confer a right of action for a penalty or damages on a person aggrieved by its breach. There have been Acts which impose a duty without any sanction. We are concerned with neither of them but with Acts which (i) contain provisions which protect members of the public or some members in certain circumstances, (ii) contain their own sanction by penalties or otherwise for the enforcement of these provisions. The courts have held that, under the common law, a person aggrieved by a breach of certain of such Acts has a right to sue for damages, although the Act itself provides only for a criminal sanction.”

Somervell LJ quotes ([1954] 2 All ER at p 631; [1954] 2 QB at p 255) from Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd as follows ([1923] All ER Rep at p 133; [1923] 2 KB at p 842):

   “’Therefore, the question is whether these regulations, having regard to the circumstances in which they were made and to which they relate, were intended to impose a duty, which is a public duty, or whether they were intended also to impose a duty, enforceable by an individual aggrieved’.”

And Somervell LJ observes: “I think this is the only approach which the decisions justify”. Then he adds ([1954] 2 All ER at p 631; [1954] 2 QB at p 256):

   “I hope these citations are sufficient to establish that there is no rule of thumb formula and one must, as ATKIN, L.J., said, consider the Act.”

Birkett LJ ([1954] 2 All ER at p 634; [1954] 2 QB at p 261) quotes from A L Smith LJ in Groves v Lord Wimborne ([1898] 2 QB 402 at p 407; [1895–99] All ER Rep 147 at p 150):

   “’In dealing with the question whether this was the intention of the legislature, it is material, as KELLY, C.B. pointed out in giving judgment in the case of Gorris v. Scott, to consider for whose benefit the Act was passed, whether it was passed in the interests of the public at large or in those of a particular class of persons. The Actr now in question, as I have said, was clearly passed in favour of workers employed in factories and workshops, and to compel their employers to perform certain statutory duties for their protection and benefit’.”

________________________________________ r    The Factory and Workshop Act, 1878 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

Then Birkett LJ continues ([1954] 2 All ER at p 634; [1954] 2 QB at p 261):

   “VAUGHAN WILLIAMS, L.J., said ([1898] 2 QB at p 417; [1895–99] All ER Rep at p 153) in the same case: ‘In each case one must look at the whole of the statute, and gather from all its provisions the answer to the question whether that was the intention.’ [I.e., that the remedy provided by the statute should be the only remedy.]”

Romer LJ said ([1954] 2 All ER at p 636; [1954] 2 QB at p 264):

   “There is nothing inconsistent, however, in including in legislation which is generally designed to regulate in various ways the lives of a vast community provision for the safety and protection of individuals.”

631

Then he said ([1954] 2 All ER at p 637; [1954] 2 QB at p 265):

   “It is a matter of general sorrow to hear of persons who have been trapped in a burning house without any means of escape; but it is death to the victims themselves. I emphasize this point because it appears to me to be of cardinal importance, in considering whether a civil suit lies for breach of a statutory duty to see whether on a broad view that duty has been imposed for the general welfare, on the one hand, or in the interests of individuals or of a defined or definable class of the public on the other.”

In accordance with these observations it seems to me that the question, therefore, is whether the Act of 1926 on its true construction, in the light of the surrounding circumstances, was intended only for the protection of the public at large or also for the benefit of a class of persons. If it was also for the benefit of a class, then any member of that class is entitled to bring not criminal proceedings for the public offence but civil proceedings in respect of injury to himself.    Under the Act of 1926 a person injured can have no share in the penalty—a factor which Romer LJ apparently considered told against his having no right of action. Nor can any prosecution under it be brought without the sanction of the Attorney General, but it seems to me that this might be relied on on the one hand as a factor tending to indicate that persons injured were to have a remedy otherwise than by criminal proceedings, and on the other hand as a factor tending to indicate that there was to be no remedy except with the sanction of the Attorney General. Although persons other than “a proprietor, editor, master printer or publisher” may “print or publish or cause or procure to be printed or published” and so do what s 1 makes unlawful, yet it is only such persons that are liable to be convicted under the Act of 1926. There is thus, in the case of unlawful action by other persons no remedy under the Act for what the Act itself makes unlawful, unless there is remedy by civil proceedings; and this suggests that such a remedy is intended.    The decisive consideration, however, to my mind is to be found in an analysis of s 1 of the Act of 1926. Section 1(1)(a) makes unlawful the publication in relation to any judicial proceedings (including, therefore, proceedings mentioned in para (b), which may conveniently be referred to as divorce court proceedings) any indecent matter the publication of which would be calculated to injure public morals. Paragraph (b) is, however, limited to divorce court proceedings and forbids the publication of any particulars other than those expressly specified in the paragraph and subject to the proviso which ensures that nothing so expressly specified permits the publication of anything contrary to para (a), that is, indecent matter calculated to injure public morals. Thus para (a) and the proviso to para (b) make unlawful in relation to any judicial proceedings, including divorce court proceedings, the publication of any indecent matter calculated to injure public morals; but what the rest of para (b) does is to forbid the

publication of any particulars in relation to divorce court proceedings (other than the expressly specified particulars) even though they are not indecent matter calculated to injure public morals. The protection afforded by para (b) cannot, therefore, in my view, be directed to protect public morals despite the long title of the Act of 1926, namely “an Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals”: and the protection of public morals was the only public purpose on which the defendants relied to suggest that the Act was for the protection of the public only.    That para (b) does, in fact, protect those taking part in divorce court proceedings is palpably obvious and was the subject of observations by Willmer LJ in Windeatt v Windeatt ([1962] 1 All ER 776 at p 781). The protection afforded to them, over and

above the protection of public morals emphasised in para (a) and the proviso 632 in para (b) is doubtless to be ascribed to the way in which, in divorce courts in particular, reputations were apt to be disproportionately and, perhaps, quite unjustifiably besmirched and, even more, innocent persons were apt to have their most intimate relationships publicly exposed. Even children might suffer cruelly from their parents’ divorce proceedings without there being an injury at all to public morals. Such suffering can, of course, occur in other courts but it is notorious that it is in divorce court proceedings that such suffering was most widespread. And our legislature like our common law and, indeed, our people in general, is apt to apply its remedy, not generally in accordance with any general principle, but pragmatically to the particular difficulty that clamours for treatment. It thus seems to me that the protection which the Act of 1926 provided in divorce court proceedings, at any rate—and it is only with such proceedings that we are here concerned—was not limited to the protection of public morals but was wider in its scope and purpose and, in my view, included the protection, in the words of Willmer LJ ([1962] 1 All ER 776 at p 781) in the judgment to which I have alluded of “any person named in a matrimonial suit”.    It is further submitted for the defendants that an injunction would not be granted to restrain a criminal act such as unlawful publication contrary to the Act of 1926, unless it involves injury to property. Passages in Halsbury’s Laws of Englands were referred to in support of this proposition. The cases cited by counsel, namely Springhead Spinning Co v Riley, A.-G v Sheffield Gas Consumers Co, and Stevens v Chown, Stevens v Clark, were all cases where the injury was to property. The contrast there was between a mere criminal act and a criminal act involving an injury to property. In the case of a mere criminal act an injunction would not issue, but if the criminal act involved an injury to property an injunction would be based on the threatened injury to property independently of the crime. The judges directed their observations to the facts before them—all injury to property cases—and so expressed themselves in terms of such injury. Lord Eldon LC in Gee v Pritchard ((1818), 2 Swan 402 at p 413) says of his equity jurisdiction:

________________________________________ s    21 Halsbury’s Laws (3rd Edn), p 347, para 726 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “… I have no jurisdiction to prevent the commission of crimes; excepting, of course, such cases as belong to the protection of infants … ”

A little later, on the same page, when no question of crime was being considered, he said that the material question was whether the facts on which the court’s intervention was sought were “… facts of which the court can take notice, as a case of civil property, which it is bound to protect”.    Lord Campbell LC in Emperor of Austria v Day and Kossuth ((1861), 3 De G F & J 217 at p 239), appears to treat this last quotation from Lord Eldon as indicating that a case of injury to property was an exception to the refusal of the Court of Chancery to restrain the commission of a crime. Sir Richard Malins, V-C, in Springhead Spinning Co v Riley ((1868), LR 6 Eq 551 at p 560) treats the last passage quoted from Lord Eldon as saying that the question is whether the facts are such that “… the court can take notice of as a case of civil rights which it is bound to protect”.    These quotations are hardly reconcilable unless intended as no more than particular illustrations or applications of the principle that the old Court of Chancery would not grant an injunction unless there was a ground which it recognised as giving it jurisdiction—whether the protection of infants, or of property or of civil rights, which it was bound to protect. Of course, injury to property can be far less serious than other forms of injury such as, for example, injury to reputation; and I see no rational ground whatsoever for distinguishing between injury to property and other forms of injury, nor was any suggested. In my opinion such a distinction is not the purport and effect of the cases

cited, 633 and even if such a rule could be disinterred from ancient authorities, yet I would not myself consider it incapable of rational and sensible development to correspond with the different needs and values in a different age. Thus, in my view, the defendants’ submissions that an injunction will not be granted to restrain a criminal act, unless it involves an injury to property, fails.    Junior counsel for the defendants in exercising the right to comment on a case which had been referred to in counsel for the plaintiff’s speech in reply, suggested that an injunction would only lie if the unlawful publication in contravention of statute amounted to a tort for which an action at law would lie, although this case had proceeded and had been fully argued on the footing that there was no such requirement.    Section 45 of the Supreme Court of Judicature (Consolidation) Act, 1925t, re-enacting s 25(8) of the Supreme Court of Judicature Act of 1873, provides so far as material,

________________________________________ t    For s 45 of the Supreme Court of Judicature (Consolidation) Act, 1925, see 18 Halsbury’s Statutes (2nd Edn) 482 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

   “(1) The High Court may grant … an injunction … by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do.”

The effect of these enactments is that since the Supreme Court of Judicature Act, 1873, as stated by Cotton LJ in North London Ry Co v Great Northern Ry Co ((1883), 11 QBD 30 at p 40)

   “… where there is a legal right which was, independently of the Act, capable of being enforced either at law or in equity [I emphasise those words] then, whatever may have been the previous practice, the High Court may interfere by injunction in protection of that right.”

It appears from Stevens v Chown ([1901] 1 Ch at pp 904, 905), a decision of Farwell J that the right which might be so protected could be a new right created by statute and need not be a right for which an action at law would lie provided it was a right that the Court of Chancery would take cognizance of. And in Pollard v Photographic Co ((1888), 40 ChD 345 at p 353) North J said:

   “But the counsel for the defendant did not hesitate to contend boldly that no injunction could be granted in a case where there could be no injury to property in respect of which damages could be recovered in an action at law.”

Later he said ((1888), 40 ChD at p 354):

   “The right to grant an injunction does not depend in any way on the existence of property as alleged; nor is it worthwhile to consider carefully the grounds upon which the old Court of Chancery used to interfere by injunction. But it is quite clear that, independently of any question as to the right at law, the Court of Chancery always had an original and independent jurisdiction to prevent what that court considered and treated as a wrong, whether arising from a violation of an unquestionable right or from breach of contract or confidence, as was pointed out by LORD COTTENHAM, L.C., in Prince Albert v. Strange.”

There are thus clearly formidable considerations against the suggestion that the plaintiff cannot obtain relief by injunction unless the publication constitutes a tort against her. These, however, were cases dealing not with interlocutory injunctions but with final injunctions and it was the practice of the court of Chancery to exercise a jurisdiction, which was not limited to the considerations governing final injunctions, for the purpose

of granting interlocutory injunctions 634 pending the trial of a legal right. This jurisdiction was considered by Chitty J in Hayward v East London Waterworks Co ((1884), 28 ChD 138 at p 145) where he indicates conveniently the nature of the action. He said:

   “The defendants threaten to cut off the supply [i.e., of water] to the plaintiff’s houses unless the full amount claimed by them for the rate in advance up to Christmas is forthwith paid.”

Previously in his opening remark he said ((1884), 28 ChD 138 at p 145):

   “A bona fide dispute has arisen and still subsists between the plaintiff and the defendant company as to the basis on which the rate ought to be calculated.”

Then he dealt with the jurisdiction and said ((1884), 28 ChD at pp 146, 147):

   “In these circumstances the question is whether the plaintiff is entitled to an injunction to restrain the defendants from cutting off the water. The writ asked for an injunction without limit of time. But the only injunction that could be granted in the existing circumstances would be up to Christmas. It was argued by the company that the plaintiff’s right to the supply of water was a statutory right, and that the only remedies open to the plaintiff were those given by the statutes which conferred the right, and that the statutes conferred a special remedy by penalty payable to the person aggrieved when the water was cut off. As at present advised, I should, if it

were necessary to decide the question, decline to adopt this argument. I see no reason why the court should refuse to protect a right by injunction merely because it is a statutory right. In Cooper v Whittingham Sir George Jessel MR held, that the ancillary remedy by injunction ought to be granted, although the statute had created a new offence and imposed a penalty, and in his judgment he referred to the Judicature Act, 1873, s 25, sub-s (8), enabling the court to grant an injunction in all cases in which it shall appear to be just or convenient, and stated his opinion to be that this enactment might be said to be a general supplement to all Acts of Parliament. Sir George Jessel MR gave a wider interpretation to the enactment than has since been adopted by the Court of Appeal. But the Court of Appeal did not in North London Ry Co v Great Northern Ry Co overrule the decision in Cooper v Whittingham, or lay down any principle inconsistent with that upon which the case was decided. Before the passing of the statutes conferring on the Court of Chancery jurisdiction to determine questions of legal right, it was the constant practice of the Chancery Court to intervene by injunction in proper cases for the protection of the plaintiff in equity pending the trial of the legal right and until that right could be determined at law. But the intervention was temporary, and the court required that proceedings should be taken to obtain the decision at law. It seems to me that the principle involved in that practice would apply to the present case. It was argued for the defendants that the damage to the plaintiff by cutting off the water would not be irreparable. But I am satisfied that that argument by itself could not prevail. The supply of water to the inhabitants of London now depends almost entirely on the water companies, and in the present case there are no less than 150 persons dwelling in the plaintiff’s houses. I should have no hesitation in saying that the cutting off the supply of water for domestic purposes would be damage of that grievous nature that would have fallen within the principle of the decisions of the Court of Chancery as to irreparable damage before the passing of the Judicature Act, and that, at all events, it would fall within the Judicature Act, 1873, s 25, sub-s (8).”

In this case, as in that, there is a dispute as to a statutory right and in addition 635 irreparable injury to the plaintiff before trial if an interlocutory injunction is not granted. Thus, in my opinion, the jurisdiction which I am asked to exercise on this motion is a jurisdiction which the old Court of Chancery had, with the result that this submission for the defendants fails. Nor, even if I were not to come to this conclusion, would it in my view be proper to consider that such a disputable suggestion thus made at the last moment and without full argument should defeat the plaintiff’s prima facie case for an interlocutory injunction, particularly when to refuse the injunction would allow publication which would be irrevocable and substantially defeat the whole purpose of the action.    My conclusion, therefore, is that the plaintiff is entitled to injunctions substantially as asked in respect of the cross-petition and the divorce proceedings, and, as I have already indicated, the injunction in respect of the cross-petition will similarly apply to the reference to the Whigham action which is bound up with the reference to the cross-petition in the relevant passage in the Duke’s articles.    I come now to the plaintiff’s further submission that publication of the subject, matter of the Whigham action would be of information comprised in the undertaking given in

the settlement of that action and should be restrained by injunction. The statement made by counsel for the plaintiff in open court was, so far as material, as follows:

   “Agreed terms of settlement are embodied in a Tomlin Order, and I need only tell your lordship that the plaintiff’s claims for conspiracy, malicious prosecution and injurious falsehood are to be dismissed, and that Margaret, Duchess of Argyll is to pay to the plaintiff a sum of £25,000 in respect of the libels complained of as well as the plaintiff’s costs of the action. I would therefore ask your lordship now to make the agreed order in the form which has been placed before you. I would add that all parties are undertaking that, so as to avoid any further publicity about this dispute, none of them will make any statement or comment hereafter about it to anyone.”

It is clear and accepted that the undertaking which was given by the parties in this case was an undertaking which was given to the court and the breach of the undertaking would therefore be a contempt of court, so that a fortiori, in my view, would the disclosure of confidential information which was the subject of such an undertaking not to disclose, be restrained.    In this case the subject-matter of the Whigham action is confidential information subject to the undertaking and it has apparently never been published or communicated to any person other than the parties to the action and their representatives, subject only to the qualification that the Duke has possession of that information. That possession is not explained by him, although it is a matter peculiarly within his knowledge and he has had the opportunity of doing so. Nor has it been explained by anyone else. Nor do I appreciate how the Duke would be more likely to obtain the information than from a party to the action in breach of the undertaking. In these circumstances, so far as it may be relevant and necessary for the present purposes, I would conclude that on the evidence as it at present stands, that it was prima facie so obtained. The result, therefore, is that in my view the plaintiff has also established this ground for her application for an injunction in respect of the subject-matter of the Whigham action.    The overall result of this motion therefore is that last Friday I granted the injunctions claimed subject to any modification today as to their precise form, and I then in the case of each injunction indicated—and I need not now repeat—the passages in the Duke’s articles which I considered required that those injunctions should be granted.

Injunctions granted until further order. [The order, dated 9 December 1964, contained an undertaking on the part of the plaintiff

to abide by any order that the court might make as to damages in case 636 the court should thereafter be of opinion that the defendants should have sustained any damages by reason of the order that the plaintiff ought to pay, and contained injunctions, and provided for affidavits filed on behalf of the plaintiff and defendants being taken off the file, in the following form— This Court Doth Order that the defendant [the Duke of Argyll] be restrained until after judgment in this Action or until further order in the meantime from doing (whether by himself or by his servants or agents or any of them or otherwise howsoever) the following acts or any of them that is to say

(i) communicating to the [second and third defendantsu] or to either of them or to their or either of their servants or agents or any of them or to any other person or persons any information or matters of any of the kinds specified in Sch 3 hereto (ii) printing any particulars specified in Sch 4 hereto (iii) publishing any such particulars as last aforesaid (iv) causing to be printed any such particulars as last aforesaid (v) causing to be published any such particulars as last aforesaid (vi) procuring to be printed any such particulars as last aforesaid (vii) procuring to be published any such particulars as last aforesaid

________________________________________ u    The second and third defendants were the editor of “The People”, and the proprietors, printers and publishers of that newspaper (see p 614, letter d, ante) ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

And It Is Ordered that each of the [second and third defendants] be restrained until after judgment in this action or until further order in the meantime from doing and as regards the [second defendant] whether by himself and as regards both the said last mentioned defendants whether by their servants or agents or any of them or otherwise howsoever the following acts or any of them that is to say (viii) printing any information or matters of any of the kinds specified in the said Sch 3 (ix) publishing any such information or matters as last aforesaid (x) causing to be printed any such information or matters as last aforesaid (xi) causing to be published any such information or matters as last aforesaid (xii) printing any particulars specified in Sch 4 hereto (xiii) publishing any such particulars as last aforesaid (xiv) causing to be printed any such particulars as last foresaid (xv) causing to be published any such particulars as last aforesaid (xvi) procuring to be printed any such particulars as last aforesaid (xvii) procuring to be published any such particulars as last aforesaid And [AB] a partner in the firm of … the solicitors for the plaintiff by counsel for the plaintiff being [AB’s] counsel for this purpose undertaking (a) that he will hold in safe custody the affidavits specified in the said Sch 1 as soon as he shall receive them as hereinafter directed (b) that he will have the said affidavits specified in the said Sch 1 in court at the trial of this action and (c) that he will deliver the said affidavits specified in the said Sch 1 to this court whenever ordered so to do by this court or a judge thereof at any time before such trial It Is Ordered that the said affidavits specified in the said Sch 1 be taken off the file and delivered to the said [AB] And [CD] a partner in the firm of … the solicitors for the defendants by counsel for the defendants being [CD’s] counsel for this purpose undertaking (i) that he will hold in save custody the affidavits specified in the said Sch 2 as soon as he shall receive them as hereinafter directed (ii) that he will have the said affidavits specified in the said Sch 2 in court at the trial of this action and (iii) that he will deliver the said affidavits specified in the said Sch 2 to this court whenever ordered to do so by this court or a judge thereof at any time before such trial And It Is Ordered that the said affidavits specified in the said Sch 2 be taken off the file and delivered to the said [CD]v.

________________________________________ v    There followed, after order as to costs and liberty to apply, the four schedules mentioned ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

Solicitors: Radcliffes & Co (for the plaintiff); Simmons & Simmons (for the defendants).

Jacqueline Metcalfe Barrister.

637