Lord Advocate v The Scotsman Publications Ltd

This decision confirms that the Crown may seek equitable relief to restrain publication of confidential material only where the public interest in maintaining confidentiality outweighs the public interest in freedom of expression.

The court held that third parties who come into possession of confidential material may, in principle, be subject to an equitable duty not to publish if they know that the material was disclosed in breach of a confidant's obligation. That rule is, however, subject to a practical limitation: in cases where the Crown concedes that the material is innocuous and has not shown any likely or material prejudice to national security, interlocutory relief is inappropriate.

The Lord Advocate sought interim interdict in Scotland to prevent publication by the Scotsman and others of material taken from a memoir by a former intelligence officer, Cavendish, who had distributed a limited number of private copies after the Crown refused authorisation. The Lord Ordinary refused interim interdict and the Second Division of the Court of Session affirmed. The Crown appealed to the House of Lords. The Crown conceded before the House that the contested parts of the book contained no material likely to damage national security. The central issue was whether, on those averments, a prima facie case for restraint of third parties had been made.

The House examined (a) the legal basis for restraining recipients of confidential information; (b) the effect of prior dissemination and the distinction between a "contents" case (where disclosure itself is damaging) and a "non-contents" or purely policy-based case; and (c) the proper exercise of the interlocutory discretion. The House dismissed the appeal, concluding the pleadings did not establish a prima facie case of likely prejudice sufficient to justify interim relief.

1. Disposition: The appeal is dismissed. The Court of Session's refusal of interim interdict is affirmed (per Lord Keith of Kinkel delivering the lead speech; their Lordships Lord Templeman, Lord Griffiths, Lord Goff and Lord Jauncey agreeing).
2. Legal principle on third parties: The law recognises that a former member of the security services owes a lifelong duty of confidence and that a person who receives confidential information knowing it to have been disclosed in breach of that duty may, in principle, be under an equitable obligation not to publish it. That principle is common to Scots and English law (see discussion in the opinions of the Court of Session and adopted as correct by the House) (per Lord Keith).
3. Limits and balancing: The Crown's right to protect confidential information is not absolute. Where the Crown relies on public interest grounds it must show that continued publication would be likely to damage the public interest. If the Crown concedes that the material is innocuous and cannot show likely or material prejudice, there is no prima facie case for interlocutory restraint. The balancing exercise required in a "contents" case need not be undertaken where no arguable case of prejudice is pleaded (per Lord Keith; Lord Templeman confirming the Convention Article 10 context).
4. Application to these facts: The Crown conceded before the House that the contested parts of the book were not damaging to national security. On the pleadings and concessions, the averments in stat. 7 do not establish a prima facie case that further publication would materially prejudice the public interest. The interlocutory discretion was therefore properly exercised in refusing interdict (per Lord Keith).
5. Practical points: (a) The extent of prior dissemination is a matter of degree. Extensive worldwide dissemination (as in Spycatcher) may make restraint ineffectual. (b) Where a claim rests on indirect, non-contents detriment (morale, deterrence, deterrence of future disclosures) the Crown must show a real prospect of material damage; mere policy generalisations will not suffice at interlocutory stage (per Lord Dunpark, Lord McDonald in Court of Session extracts and adopted reasons in the House).
6. Order: Appeal dismissed. Costs and any further procedural directions were not altered by the House.

1. Court of Session (Lord Ordinary): Interim interdict originally granted then, after full hearing, refused (Lord Coulsfield) (interlocutor of 23 Feb 1988 refusing interim interdict).
2. Court of Session (First Division): Reclaiming motion refused (Second Division) (8 April 1988).
3. House of Lords: Appeal heard and dismissed (6 July 1989) (this judgment).