Intellectual Property
Breach of confidence - copyright - fair dealing - freedom of expression - infringement - newspapers - privacy - public interest - right to respect for private and family life
HRH Prince of Wales v Associated Newspapers Ltd: CA (Civ Div) (Lord Chief Justice Phillips, Master of the Rolls, Sir Anthony Clarke, Lord Justice May): 21 December 2006
The appellant newspaper publisher (N) appealed against the decision ([2006] EWHC 522 (Ch)) giving summary judgment against N on a claim for breach of confidence and infringement of copyright.
The respondent Prince of Wales (W) had kept handwritten journals to record his impressions and views in the course of overseas tours. Copies of the journals had been supplied to N, via an intermediary, by an employee of W in breach of her contract of employment. N had published substantial extracts from one of the journals.
W issued proceedings for breach of confidence and copyright infringement. N denied that the content of the journal was confidential and relied on defences under the Copyright, Designs and Patents Act 1988 to the claim for copyright infringement. W claimed that the publication of extracts from the journal interfered with his right to privacy under article 8 of the European Convention on Human Rights. N denied that, and alleged that any interference was justified under article 8(2) of the convention as necessary to protect the rights of N and the public under article 10.
The judge held in effect that there was no issue of fact in relation to the journal that called for a trial and proceeded to try the remaining issues, giving summary judgment for W. N submitted that there were unresolved issues of fact that called for a trial, that the content of the journal was not confidential and private, and that publication of the contents constituted fair dealing under section 30 of the 1988 Act.
Held, there were no unresolved issues of fact that called for a trial. The information in the journal was obviously both confidential and of a private nature, Douglas v Hello! Ltd [2005] EWCA Civ 595, [2006] QB 125 applied. W had a reasonable expectation that the content of the journal would remain private, Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457 applied. The employees to whom copies were circulated were all under a contractual duty of confidence and others who received copies had always treated them as confidential.
It was significant that the contents of the journal had been disclosed in breach of confidence. The test to be applied when considering whether it was necessary to restrict freedom of expression in order to prevent disclosure of information received in confidence was not simply whether the information was a matter of public interest but whether in all the circumstances it was in the public interest that the duty of confidence should be breached.
In applying the test of proportionality, the nature of the relationship that gave rise to the duty of confidentiality might be important, Campbell v Frisbee [2002] EWCA Civ 1374, [2003] ICR 141 considered. The information at issue was private information, public disclosure of which constituted an interference with W's rights under article 8. There was an important public interest in employees respecting the obligations of confidence that they had assumed. The public interest in disclosure of the journal's contents did not outweigh the confidential nature of the information and the relationship of confidence under which it had been received. The significance of the interference with article 8 rights outweighed the prospective interference with article 10 rights that would have been involved in preventing N from publishing the information. Even in the absence of a breach of confidence, W would have had an unanswerable claim for breach of privacy.
The judge had been right to conclude that N's publication of the information did not in the circumstances constitute fair dealing for the purposes of reporting current events under section 30(2) of the 1988 Act. Nor did N have any defence of fair dealing for the purposes of criticism or review under section 30(1). Nor did it have any public interest defence under section 171(3).
Appeal dismissed.
M Warby QC, P Saini (instructed by Reynolds Porter Chamberlain) for the appellant; H Tomlinson QC, L Lane (instructed by Harbottle & Lewis) for the respondent.employment
Employment
Compensatory awards - payments in lieu of notice - unfair dismissal - assessment of loss during notice period - principle in Norton Tool - sick pay
Ana Burlo v (1) David Langley (2) Caroline Carter: CA (Civ Div) (Lords Justice Mummery, Smith, Leveson): 21 December 2006
The appellant former employee (B) appealed against a decision of the Employment Appeal Tribunal (EAT) that she was only entitled to be compensated for unfair dismissal at the rate of statutory sick pay in lieu of notice.
B had resigned her employment as a nanny and her employers had required her to work during her contractual notice period of eight weeks. However, B was injured in a car accident and was unfit for work during the whole notice period. In the meantime, the employers had employed a new nanny. They informed B that she was no longer required to work out her notice and made no payment to her in lieu of notice.
B brought claims for wrongful and unfair dismissal. The employment tribunal awarded her eight weeks' pay at her normal weekly wage for wrongful dismissal, and made a basic and compensatory award for unfair dismissal that did not relate to the notice period. On appeal, the EAT found that a provision in B's contract that provided for payment of statutory sick pay was effective, and reduced the damages for wrongful dismissal to eight weeks' statutory sick pay. The EAT rejected B's argument that, under section 123 of the Employment Rights Act 1996, she was entitled to compensation for unfair dismissal for the eight-week notice period at the normal weekly wage.
B argued that, under section 123, she was entitled to receive compensation at the normal weekly wage because, under the principle in Norton Tool Co Ltd v Tewson [1973] 1 WLR 45, it was good employment practice for an employer to pay an employee at the normal weekly rate during the whole of the contractual notice period even though she was unfit for work through sickness.
Held, the ratio of Norton Tool was authority for the proposition that it was good employment practice for an employer who had dismissed an employee without notice to make a payment in lieu of notice and that, in assessing compensation for dismissal, a payment should not be subject to any deduction for sums earned in other employment during the notice period. Any wider principle enunciated in that case was obiter.
Comments by the Court of Appeal in Babcock Fata Ltd v Addison [1987] 3 WLR 122 about the correctness of the narrow principle in Norton Tool were obiter, but the Court of Appeal had made it clear that there was in Norton Tool no wider principle by which newly formulated precepts of good industrial or employment practice could be applied to the assessment of compensation under section 123 if the result of such application would be an award greater than the loss caused to the employee as a consequence of the dismissal.
In the instant case, if B had not been dismissed, she would have received statutory sick pay; therefore statutory sick pay was the correct measure of her loss during the notice period, Addison applied.
(Obiter) The narrow principle in Norton Tool had survived the House of Lords decision in Dunnachie v Kingston Upon
Hull City Council [2004] UKHL 36, [2005] 1 AC 226 and should continue to be applied in calculating compensation
for wages in lieu of notice in unfair dismissal cases until the House of Lords decided otherwise.
Appeal dismissed.
Ayoade Elesinnla (instructed by J R Jones) for the appellant: Sarah Wilkinson (instructed by Ashurst) for the respondent.
Cvil Procedure
Joint expert evidence - mediation - privilege - without prejudice and without privilege communications
(1) Robert Aird (2) Karen Aird v Prime Meridian Ltd: CA (Civ Div) (Lord Justice May, Lady Justice Smith, Sir Martin Nourse): 21 December 2006
The appellant (P) appealed against a ruling that an expert joint statement ordered for the purpose of mediation could not be used for any other purpose.
The respondent (C) had engaged P to provide architect services for the construction of a house. C subsequently issued proceedings for negligence and breach of professional duty. The proceedings were stayed for mediation. The judge ordered that C and P instruct experts and for the experts to prepare a joint statement for the mediation. The experts met and a draft joint statement stated to be without prejudice was prepared. The final joint statement removed the statement that it was made without prejudice.
The mediation failed and P sought to use the joint statement in the subsequent proceedings on the basis that it was ordered by the court pursuant to rule 35.12 of the Civil Procedure Rules. C contended that the joint statement was both prepared and used for the purpose of mediation and was therefore privileged. The judge held that the primary function was to use the joint statement in mediation, which was what C had intended it for, and it would be unfair to conclude that the statement was intended for use other than in mediation.
Held, the judge's reasoning and conclusion was wrong. The judge was wrong to qualify the terms and effect of the order. The order should have been construed objectively and the judge's view of the order and C's intentions were immaterial. The statement was a joint statement made pursuant to rule 35.12 and was not privileged. It did not acquire without prejudice status because it was used in mediation. The judge's factual inquiry did not give effect or proper weight to the order.
Appeal allowed.
Oliver Ticcati (instructed by Hill Dickinson) for the appellant; Jeffrey Bacon (instructed by Halliwells) for the respondent.
Landlord and Tenant
Tenancies - grounds for possession - leases - possession claims - both business and residential use of premises
Broadway Investments Hackney Ltd v Lowell Gerald Grant: CA (Civ Div) (Master of the Rolls, Sir Anthony Clarke, Lords Justice Lloyd, Leveson): 20 December 2006
The appellant (B) appealed against the setting aside of an order for possession made in respect of premises leased by it to the respondent (G).
G had negotiated a ten-year lease of the premises with B's predecessor in title. While the lease permitted the lower part of the premises to be used as a shop and the upper part for residential purposes, it nonetheless described itself as a lease of shop premises and obliged G to keep the premises open as a shop at certain times. G had lived in the upper part of the premises for some time before using the lower part for business purposes. Following a rent review, B had increased the annual rent. G had failed to pay the increased sum and B's claim for possession and arrears of rent had been granted by the district judge on the basis that the tenancy created by the lease was a business and not a residential tenancy.
On appeal, the judge had held that the district judge had been wrong. However, he had declined to remit the case for the status of the tenancy to be decided and instead made a suspended order for possession. The issue was whether it was reasonably arguable that the tenancy was an assured tenancy within the meaning of the Housing Act 1988 rather than a business tenancy within the meaning of the Landlord and Tenant Act 1954.
G submitted that the case ought to be remitted for decision, arguing that it was relevant to consider whether the business use was incidental to use as a home and whether the business activity was part of his aim and objective in occupying the house. He thus suggested that it was relevant to enquire into his subjective intention at the time of taking the tenancy. B argued that even if the tenancy was an assured tenancy, G ought not to be allowed the opportunity to argue that at a remitted hearing. He argued that given that G was more than three months in arrears of rent, the court would have no discretion to refuse an order for possession.
Held, it was difficult to see how the tenancy could not have been a business tenancy within the meaning of section 23(1) of the 1954 Act. G's submissions could not be allowed to obscure the reality of the case: not only was G permitted to use the lower part of the premises for business purposes and no other, but the lease positively required him to do so. Whereas part of his purpose in taking the lease may have been to provide himself with a home, the terms of the lease were not compatible with the proposition that once the shop was open for business, his use of that part of the premises was incidental to his use of the other part as his home, or that running the shop was not part of the reason for his occupying the premises.
The instant case was plainly within the second illustrative example set out by Lord Denning in Cheryl Investments v Saldanha [1978] 1 WLR 1329. The district judge had been right in her approach to the case; she had been entitled to make the order she had made and it should not have been set aside on appeal. The case was not remitted for hearing, but rather an order for possession was made.
Even had the tenancy been an assured tenancy, it would not have been a foregone conclusion that B could successfully have relied on ground 8 of schedule 2 of the 1988 Act. Where ground 8 was to be relied upon, the 1988 Act required that a notice be served in order to enable the tenant to reduce the arrears, and the court would have been justified in remitting the case, had it been necessary so to do.
Appeal allowed.
Timothy Frith (instructed by McEwen Parkinson) for the appellant; David Watkinson (instructed by Dowse & Co) for the respondent.
Prisons
Administrative decision-making - directions - life prisoners - Parole Board - release from custody - secretaries of state
Norman Girling v Secretary of State for the Home Department & Parole Board (interested party): CA (Civ Div) (Master of the Rolls, Sir Anthony Clarke, Sir Igor Judge (President Queen's Bench), Lord Justice Carnwath):
21 December 2006
The secretary of state appealed against a declaration ([2005] EWHC 546, [2006] 1 WLR 1917) that section 32(6) of the Criminal Justice Act 1991 should be construed so as not to apply to the judicial functions of the Parole Board.
The respondent life prisoner (G) had sought judicial review of a decision not to direct his release from jail because the Parole Board could not be satisfied that the provisions of section 28(6)(b) of the Crime (Sentences) Act 1997 were met. The judge in the court below had found that the power conferred on the secretary of state by section 32(6) to give directions to the Parole Board when exercising its judicial functions was incompatible with it acting in an independent judicial capacity. It had been determined that in the absence of such a construction, the power to give directions to the Parole Board would infringe the principle of separation of powers between the executive and judicial organs of the state or impugn the independence of the Parole Board.
The question for determination in the appeal was whether the judge had been right to construe section 32(6) in such a way. The secretary of state submitted that the power it conferred on him was lawful and could properly apply both to the judicial functions of the Parole Board and to its other functions.
Held, the role of the Parole Board, when deciding whether or not to direct the release of a prisoner, was a judicial one, R (on the application of Giles) v Parole Board [2003] UKHL 42, [2004] 1 AC 1 and R v Parole Board ex parte Watson [1996] 1 WLR 906 applied. The meaning of the word 'directions' depended upon its context, and in the context of section 32(6), the word was to be given a limited meaning. The secretary of state had power to give directions to the Parole Board so as to provide it with guidance as to the legally relevant matters to be taken into account in order to assist the board in reaching a structured decision on the question it was duty-bound to decide, Williams v Secretary of State for the Home Department [2002] EWCA Civ 498, [2002] 1 WLR 2264 applied, and R v Parole Board ex parte Gordon [2001] ACD 265 and R v Parole Board ex parte Owen Oysten (unreported) 1 March 2000 considered.
Parliament could not have intended to give the secretary of state power to give mandatory directions to the Parole Board because that would usurp the board's responsibility. In the instant case, the secretary of state had properly approached the exercise of his powers under section 32(6), and the directions issued were, subject to one possible exception, innocuous, Tesco v Secretary of State for the Environment [1995] 1 WLR 759 considered.
Appeal allowed.
Monica Carss-Frisk QC, Kate Gallafent (instructed by the Treasury Solicitor) for the appellant; no appearance or representation for the respondent; Michael Fordham QC, Gemma White (instructed by the Treasury Solicitor) for the interested party.
No comments yet