Campbell v Frisbee

Summary judgment is inappropriate where a proposed defence raises unsettled questions of law and has a real prospect of success. It was arguable that wrongful repudiation of a contract did not release a service provider from an expressly assumed duty to preserve confidential information.

Confidentiality is not absolute. The court must balance it against freedom of expression and the public interest in publication, without giving either right presumptive priority. An express contractual undertaking may carry additional weight in that balance. It was also arguable that correcting a misleading public image, and a relevant privacy code, could support disclosure. Those issues required determination at trial.

The respondent engaged the appellant to provide management services. Their agreement required the appellant to preserve confidential information about the respondent's professional and personal life. After an alleged assault and repudiatory breach by the respondent, the appellant sold information about the respondent's private relationships to a newspaper.

The respondent claimed damages or an account of profits for breach of contract and confidence. Deputy Master Lloyd entered summary judgment concerning disclosure of the relationship information, although the remainder of the claim and the appellant's assault counterclaim were left for trial. Lightman J dismissed the appellant's appeal.

The appellant's second appeal raised whether repudiation could discharge the contractual obligation of confidence and whether publication might be justified in the public interest.

1. Appeal allowed unanimously. Lord Phillips MR delivered the judgment of the court. The legal issues were insufficiently clear to justify summary judgment under Part 24 of the Civil Procedure Rules 1998. On a summary judgment application, arguable factual disputes had to be assumed in the defendant's favour.

2. It was not clearly established whether wrongful repudiation of a contract discharged an expressly assumed contractual duty of confidence. Earlier authority established that accepted repudiation discharged future primary contractual obligations, but the subsequent treatment of confidentiality and proprietary interests left the position uncertain. Although the appellant was unlikely to displace Lightman J's conclusion, she had a real prospect of doing so. The question therefore required determination at trial.

3. An express contractual duty of confidence was potentially significant. Such an obligation could carry greater weight in the balance against freedom of expression than a duty which was not supported by express agreement.

4. The right to confidentiality was not absolute. Section 12(4) of the Human Rights Act 1998 required the court to have particular regard to freedom of expression and to the public interest in journalistic publication. It did not give freedom of expression presumptive priority. The court had to balance expression against confidentiality, privacy and relevant contractual rights.

5. It was arguable that the Press Complaints Commission Code was relevant even though the appellant was the newspaper's source rather than its publisher. It was also arguable that disclosure served the public interest by correcting a misleading public image. Woodward v Hutchins might no longer be applicable, but on its face it supported that proposed defence. The later authorities did not provide a clear answer.

6. The order for summary judgment was set aside. Costs here and below were summarily assessed at £17,922.46, with enforcement postponed until the end of the trial. Permission to appeal to the House of Lords was refused.

1. Court of Appeal: Allowed the appellant's second appeal and set aside the summary judgment.
2. High Court, Chancery Division: Lightman J dismissed the appellant's appeal on 14 March 2002.
3. Deputy Master: Deputy Master Lloyd granted partial summary judgment to the respondent on 2 August 2001. The remaining confidence claim and the assault counterclaim were directed to proceed to trial.