Archer v Williams

An employee’s obligation of confidence may arise expressly or by implication from the employment relationship and may continue after employment ends. Confidential personal, family, financial and diary information remains protected where disclosure would cause detriment. In balancing privacy and expression rights, neither Article 8 nor Article 10 has automatic primacy. The court must weigh the competing rights, including any genuine public interest in disclosure. Public curiosity is not necessarily a legitimate public interest. General damages may be awarded for injury to feelings caused by breach of confidence, but should remain modest and proportionate.

The claimant employed the defendant as her personal assistant for 13 years. After the employment ended, the defendant supplied confidential information about the claimant and her family to public relations consultants and journalists and proposed selling her story. Material derived from working diaries was also disclosed or intended for disclosure.

The claimant sought an injunction, damages for past breaches of confidence, and delivery up of the working diaries. The defendant disputed ownership, the scope and duration of her confidentiality obligation, and relied on freedom of expression under Article 10 of the Convention. The court determined the ownership of the diaries, the injunction’s scope, liability, damages, costs and related applications.

1. Confidentiality obligation. The defendant’s employment contract contained an express term, or alternatively an implied term, requiring confidentiality in relation to personal and business information acquired during employment concerning the claimant or her family. The obligation continued after termination. It covered the claimant’s financial affairs, home life, relevant conversations, and information copied from her diaries, subject to appropriate drafting limits.
2. Equitable protection. Alternatively, the requirements identified in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 were satisfied: the information had the necessary quality of confidence, was imparted in circumstances importing confidence, and was used without authorisation to the claimant’s detriment. The principles were explained in Douglas v Hello! Ltd [2003] EWHC 786 (Ch).
3. Articles 8 and 10. Section 12 of the Human Rights Act 1998 required particular regard to freedom of expression, but Article 10 did not enjoy automatic primacy. The court had to balance Article 10 against the claimant’s Article 8 privacy rights. The proposed disclosures concerned matters low in public interest and represented a substantial intrusion into private and family life. The claimant’s public profile did not make the information a matter of legitimate public interest. A v B [2002] EWCA (Civ) 337 was distinguished.
4. Liability and damages. By disclosing substantial confidential information to several media intermediaries pursuing publication, the defendant assumed a substantial and obvious risk of newspaper publication. She was liable for the resulting breach. General damages for injury to feelings were available, but should be modest and proportionate. Damages were assessed at £2,500, with guidance drawn from Cornelius v De Taranto [2001] EMLR 329 and Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB).
5. Orders. The claimant owned the working diaries and succeeded in obtaining delivery up, an injunction subject to agreed drafting, and judgment for £2,500. The defendant was ordered to pay the claimant’s costs. An interim costs order was refused. Any wasted-costs application required notice and a proper opportunity for the former legal advisers to respond. A charging order was made for the £2,500 damages.