Attorney-General v Blake (Jonathan Cape Ltd, Third Party) (Jonathan Cape Ltd (Third Party))

A former employee’s fiduciary duty of loyalty ends with the employment relationship. A distinct duty to preserve confidential information may survive, but only while the information remains confidential. A contractual prohibition against unauthorised disclosure does not thereby become a fiduciary obligation.

The Attorney-General, acting as guardian of the public interest, may exceptionally seek a civil injunction in aid of the criminal law. That jurisdiction can prevent an offender from receiving future profits directly resulting from an offence, even where prosecution and statutory confiscation are impracticable. Relief must provide carefully targeted support for legislation and remain just and proportionate.

A former member of the Secret Intelligence Service published an autobiography containing official information without obtaining the Crown’s permission. The information was no longer secret or confidential, but its unauthorised disclosure breached his written undertaking and constituted an offence under section 1(1) of the Official Secrets Act 1989. Substantial royalties remained payable by the publisher.

The Vice-Chancellor, whose decision was reported at [1997] Chancery 84, dismissed the Crown’s private-law claim. The Attorney-General appealed and, following an invitation from the Court of Appeal, amended the claim to seek public-law relief in his capacity as guardian of the public interest.

The principal questions were whether fiduciary or contractual principles entitled the Crown to the publication profits and whether the Attorney-General could obtain an injunction preventing the offender from receiving future benefits connected with his crime.

1. Disposition. The Crown’s private-law claims were dismissed, but the Attorney-General’s public-law claim succeeded. The court granted an injunction preventing the defendant from receiving, or authorising another to receive on his behalf, any payment or benefit resulting from exploitation of the book or the relevant security and intelligence information.

2. Fiduciary duty. The court rejected the contention that a former employee remained subject to a fiduciary duty of loyalty. Duties of loyalty last only while the relationship producing them continues. A former employee is not required to act with undivided loyalty towards a former employer.

   A duty of confidence is distinct. It may survive the employment relationship because it arises from the circumstances in which information was imparted. It nevertheless subsists only while the information remains confidential. The defendant therefore committed no breach of fiduciary duty by publishing information which had ceased to be secret or confidential.

3. Contract. Publication without permission was a clear breach of the defendant’s written undertaking. The restraint was consistent with section 1(1) of the Official Secrets Act 1989. Since publication had occurred and the Crown could establish no loss, the ordinary contractual remedy was limited to nominal damages.

4. Restitutionary damages. The court stated, obiter and without full argument, that the compensatory measure of contractual damages might admit exceptional restitutionary relief. Such relief may be appropriate for skimped performance or where a defendant earns profit by doing the very act which he promised not to do, provided the profit results directly from the breach and compensation is inadequate. No such claim had been advanced, so no substantial contractual award was made.

5. Public-law jurisdiction. The Attorney-General’s historic responsibility for protecting the public interest permits him exceptionally to invoke the civil court in aid of the criminal law. The jurisdiction is not confined to preventing future offences. It may address the consequences of an offence by preventing an offender from receiving future benefits directly resulting from it.

   The jurisdiction reflected the legislative policy against retaining proceeds of crime. Its exercise was justified because prosecution and statutory confiscation were not realistically available, the order operated prospectively, supported national security legislation and did not restrain publication.

6. Safeguards and remedy. Relief should ordinarily provide carefully targeted support for substantive legislation. The court must scrutinise the application, protect freedom of expression and ensure that the order is necessary, proportionate, just and convenient. Section 37(1) of the Supreme Court Act 1981 empowered the court to grant the injunction on appropriate terms. Notice was to be given to the publisher, and the injunction could later be varied to permit a use of the unpaid royalties consistent with the public interest.

1. Court of Appeal: The court dismissed the Crown’s private-law claims but allowed the newly advanced public-law claim and granted an injunction preventing receipt of future benefits connected with the publication.
2. Chancery Division: The Vice-Chancellor dismissed the action, holding that the former intelligence officer had breached no continuing fiduciary duty because the information was no longer confidential: [1997] Chancery 84.