[CHANCERY DIVISION]

DUCHESS OF ARGYLL v. DUKE OF ARGYLL

AND OTHERS.

Injunction - Husband and wife - Marital confidence - Breach of - Disclosure of communications made during currency of marriage - Whether obligation of confidence - Whether based on contract - Whether on public policy - Disclosure by publication - Jurisdiction of court to restrain - Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), s. 45.

Injunction - Interlocutory - Jurisdiction to grant - Unlawful publication - Act creating offence - Whether penalty only remedy - Relief sought by member of class Act designed to protect - Whether jurisdiction limited to tortious act giving rise to right of action - No damage to property involved - Whether "just or convenient" to grant interlocutory injunction - Supreme Court of Judicature (Consolidation) Act, 1925, s. 45 - Judicial Proceedings (Regulation of Reports) Act, 1926 (16 & 17 Geo. 5, c. 61), s. 1 (1).

Husband and Wife - Confidential communication - Protection by law - Whether protection continues after divorce - Threat by former spouse to publish marital confidences - Injunction to restrain spouse.

[Reported by Miss A. F. RICKETTS, Barrister-at-Law]

Equity - Clean hands - Balance of perfidy - Former wife's betrayal of matrimonial confidences - Whether entitled to in junction to restrain former husband from more serious betrayal.

Equity - Confidence - Husband and wife - Breach of confidence arising independently of right of property - Marriage dissolved on grounds of wife's adultery - Disclosure of confidences during currency of marriage by husband - Whether court will restrain by in junction.

Public policy - Husband and wife - Marital confidence - Disclosure of communications made during currency of marriage - Publication of articles by husband after marriage terminated - Wife's application for an injunction - Jurisdiction of court.

Statutory Duty - Civil right, whether created - Unlawful publication - Injured person no share in penalty - Whether for protection of a class - Right of member of class to injunction - Judicial Proceedings (Regulation of Reports) Act, 1926, s. 1 (1).

By section 45 (1) of the Supreme Court of Judicature (Consolidation) Act, 1925: "The High Court may grant ... an injunction ... by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do."

The plaintiff and the first defendant were married in March, 1951. In 1959 the first defendant presented in the Court of Session in Scotland a petition for divorce from the plaintiff on the ground of her adultery. The proceedings were defended and in 1960 the plaintiff filed a cross-petition; in 1962 her cross-petition was withdrawn and no evidence was submitted in support of it. In 1963 the divorce proceedings were heard and a decree of dissolution of the marriage was made. In the same year articles by the plaintiff were published in a Sunday newspaper in which certain statements were made in relation to the first defendant's personal conduct and financial affairs. In 1964 the plaintiff issued a writ and by motion sought interlocutory injunctions to restrain the first defendant from communicating to the second and third defendants, the editor and proprietors, respectively, of another Sunday newspaper, and the second and third defendants from publishing, information of, inter alia, secrets of the plaintiff relating to her private life, personal affairs or private conduct communicated to the first defendant in confidence during the subsistence of their marriage not hitherto made public and any particulars relating to the proceedings for divorce in Scotland other than those authorised under section 1 (1) (b) of the Judicial Proceedings (Regulations of Reports) Act, 1926.¹ The grounds of the motion were that publication of statements about the plaintiff contained in certain articles by the first

1 Judicial Proceedings (Regulation of Reports) Act, 1926, s. 1: "(1) It shall not be lawful to print or publish, or cause or procure to be printed or published ... (b) in relation to any judicial proceedings for dissolution of marriage, ... any particulars other than the following ... (i) the names, addresses and occupations of the parties and witnesses; (ii) a concise statement of the charges, defences and

defendant intended for publication in the Sunday newspaper were in breach of marital confidence and in contravention of the Act of 1926:-

Held, (1) that a contract or obligation of confidence need not be expressed, but could be implied, and a breach of contract or trust or faith could arise independently of any right of property or contract (other than any contract which the imparting of the confidence might itself create); and that the court, in the exercise of its equitable jurisdiction, would restrain a breach of confidence independently of any right at law (post, p. 322B-C).

Prince Albert v. Strange (1849) 1 H. & T. 1; 1 Mac. & G. 25 and Pollard v. Photographic Company (1889) 40 Ch.D. 345 applied.

(2) That, with the object of preserving the marital relationship, it was the policy of the law that communications, not limited to business matters, between husband and wife should be protected against breaches of confidence (post, pp. 329F - 330A), so that, where the court recognised that such communications were confidential and that there was a danger of their publication within the mischief which it was the policy of the law to avoid, it would interfere, and that, on the facts publication of some of the passages complained of would be in breach of marital confidence (post, pp. 330F-G).

Rumping v. Director of Public Prosecutions [1964] A.C. 814; [1962] 3 W.L.R. 763; [1962] 3 All E.R. 256, H.L.(E.) considered.

Per curiam. Marriage has been said to be the highest legal consideration and it is more than mere legal contract and relationship and status; if, for the court's protection of confidence, the confidence must arise out of a contractual or property relationship, it does not lack its contract: the confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed (post, p. 322D-E).

(3) That, it being the policy of the!law to preserve the close confidence and mutual trust between husband and wife, subsequent adultery by one spouse resulting in divorce did not relieve the other spouse from the obligation to preserve their earlier confidences (post, p. 332G). Accordingly, the plaintiff's adultery did not entitle the first defendant to publish the confidences of their married life, and an injunction would be granted restraining him from so doing.

countercharges in support of which evidence has been given; (iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv) ... the judgment of the court and observations made by the judge in giving judgment: ... (2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding £500 ... Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act. (3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General."

Dictum of Viscount Radcliffe in Rumping v. Director of Public Prosecutions [1964] A.C. 814 applied.

(4) That the publication of the plaintiff's articles did not relate to the confidences betrayed in the first defendant's articles and were not of the same order of perfidy; and that the plaintiff should not thereby be disentitled to any injunction which might be granted to her (post, p. 332B).

Per curiam. A person coming to equity must come with clean hands, but the cleanliness required is to be judged in relation to the relief sought (post, p. 332A).

(5) That an injunction might be granted to restrain the publication of confidential information not only by the person who was a party to the confidence but by other persons into whose possession that information had come and injunctions would be made against the second and third defendants in respect of publication of the marital confidences (post, p. 333C).

Ashburton v. Pape [1913] 2 Ch. 469; 29 T.L.R. 623, C.A. followed.

(6) That publication of evidence, other than that referred to by the judge in his judgment, given in the divorce proceedings was made unlawful by section 1 (1) of the Judicial Proceedings (Regulation of Reports) Act, 1926, and since no evidence had been given in support of the cross-petition so also was publication of the charge contained in it; that, on the true construction of the Act of 1926, the protection afforded in relation to the publication of proceedings was not limited to the protection of public morals but extended to any person named in a matrimonial suit, and the fact that the Act created an offence did not make prosecution the only remedy or debar an individual injured or threatened with injury by unlawful publication from remedy (post, pp. 338G - 339A, D-E,341C-D, G, 343A).

Dictum of Willmer L.J. in Windeatt v. Windeatt [1962] 1 W.L.R. 527, 532; [1962] 1 All E.R. 776, C.A. applied.

Solomons v. R. Gertzenstein Ltd. [1954] 2 Q.B. 243; [1954] 3 W.L.R. 317; [1954] 2 All E.R. 625, C.A. considered.

(7) That the jurisdiction of the court to grant an injunction to restrain a criminal act was not limited to a criminal act which involved injury to property, there being no reason to distinguish between injury to property and other forms of injury such as that which might be caused by unlawful publication contrary to the Act of 1926 (post, p. 344B-C); nor was the court's jurisdiction under section 45 of the Supreme Court of Judicature Act, 1925, to grant an interlocutory injunction where it was "just or convenient so to do" limited to the case of a tortious act in respect of which an action would lie, for the court would take cognizance of and protect a statutory right (post, p. 345A); and that, since there was here a dispute as to a statutory right, and publication would cause irreparable injury to the plaintiff before trial, it was a case in which interlocutory injunctions should issue restraining the publication of the articles in so far as they were unlawful under the Act of 1926 (post, p. 347A-B).

Hayward v. East London Waterworks Co. (1884) 28 Ch.D. 138 applied.

Gee v. Pritchard (1818) 2 Swan. 402; Springhead Spinning Co. v. Riley (1868) L.R. 6 Eq. 561 and Stevens v. Chown [1901] 1 Ch. 894; 17 T.L.R. 313 considered.

Per curiam. There are formidable considerations against the suggestion that the plaintiff cannot obtain relief by final injunction unless the publication constitutes a tort against her (post, p. 345E-F).

MOTION.

The plaintiff, Margaret, Duchess of Argyll, sought three interlocutory injunctions against the first defendant, Ian Douglas, Duke of Argyll, her former husband, and the second and third defendants, R. Stuart Campbell and Odhams Press Ltd., the editor and the proprietors, printers and publishers, respectively, of the Sunday newspaper, "The People," restraining the first defendant until trial or further order by himself, his servants or agents, from communicating to the second or third defendants or any of their servants or agents, and restraining the second and third defendants until trial or further order by themselves or any of their servants or agents from publishing any information of any of the following kinds, namely: (a) Secrets of the plaintiff relating to her private life, personal affairs or private conduct, communicated to the first defendant in confidence during the subsistence of his marriage to the plaintiff and not hitherto made public property; (b) Information relating to the subject-matter of the following actions or proceedings or any of them or to any steps at any time taken therein: (i) the action in the Queen's Bench Division of the High Court of Justice, the short title thereof was "Louise Timpson and Ian, Marquess of Lorne, versus Margaret, Duchess of Argyll [1959] No. T 167"; (ii) the action in the Court of Session, Scotland, the short title whereof was "the Most Noble Margaret, Duchess of Argyll versus the Most Noble Ian Douglas, Duke of Argyll, No. C 378 of 1960"; (iii) the action in the Queen's Bench Division of the High Court of Justice, the short title whereof was "Vera Jane Wigham versus Margaret, "Duchess of Argyll and Gail Susan Corby [1962] W. No. 2144"; (c) Any particulars regarding the proceedings in the first defendant's divorce petition in Scotland other than those authorised to be published under section 1 (1) (b) of the Judicial Proceedings (Regulation of Reports) Act, 1926. The grounds of the motion were that articles written by the first defendant for publication in "The People" newspaper contained statements concerning the

plaintiff which were (1) in breach of marital confidence, (2) in respect of actions and legal proceedings, (3) in respect of evidence given in divorce proceedings, and (4) statements defamatory of the plaintiff.

The motion first came before the court on Tuesday, November 17, after the first article had been published, when counsel for the plaintiff stated that that article contained no matter objectionable to the plaintiff and that a copy of the next article would be supplied to her on the following Thursday, and the hearing was adjourned, the plaintiff being given liberty to apply ex parte should any further article contain objectionable matter. On Friday, November 20, counsel for the plaintiff informed the court that the second article, read by itself, did not contain any statements which would come within the injunctions sought other than that to restrain statements defamatory of the plaintiff. Counsel said that, since the second defendant had stated that he intended to justify anything alleged to be defamatory in the article, the plaintiff would not press for interlocutory relief in respect of defamation, but that the second article did contain statements which, read with the third article, might amount to a breach of marital confidence and, although not moving ex parte for an injunction in respect of the two articles, it was not admitted that there was nothing in the second article of which the plaintiff would be entitled to complain at the hearing. Having been informed that it was intended to amend the third article, counsel asked for the motion to be adjourned. The defendants, while denying the allegations in regard to the articles, did not oppose the application and the motion was stood over accordingly. The substantive hearing of the motion took place on November 27, 30 and 31 and December 1, when copies of all the articles were available. Of the remaining four articles, no objection was taken to the article numbered 5 in order of proposed publication, and the motion, in the result, was confined to articles 3, 4 and 6. The defendants opposed the motion.

The facts are fully stated in the judgment.

Sir Andrew Clark Q.C. and Paul Sieghart for the plaintiff. The first injunction sought is based on the subsistence of the marriage from March, 1951, to March, 1965. The law as to this is that the confidences of married life should be respected and will be protected by the court save in so far as public policy requires otherwise, e.g., in the ascertainment of the truth in criminal and possibly also civil proceedings. The second injunction in respect

of the Timson action is based on a binding contract of secrecy between the Duke and the plaintiff. The third is in respect of the committal proceedings which were in chambers. It is clearly contempt of court for any of the parties to that action to disclose matters raised in that action. The Duke admittedly was not a party but he must have learnt of them from one of the parties, in fact he says so, therefore he ought to be restrained from making any disclosure. Further, clearly the Duke ought not to be allowed to make allegations which the plaintiff cannot rebut without herself committing contempt of court. The cross petition and Whigham action are bound up together. Undertakings were given to the court by the parties that none of them would make any statement or comment about the matter in dispute to anyone. Clearly it would be a contempt of court if any of the parties were to do so. The Duke was not a party, but anything he heard about the case other than what was publicly stated in court must have been derived from a party, directly or indirectly, and he ought not now to be allowed to disclose it. Furthermore again, it would be wrong that he should be allowed to make public statements about the subject-matters of this action which the plaintiff is precluded from rebutting or even denying by her own undertaking to the court. That a person who receives information given in breach of confidence will himself be restrained from passing it on or making use of it, even though he himself did not receive it in confidence, is established by the Court of Appeal in Ashberton v. Pape.² This principle must apply, a fortiori, to information given in contempt of court: see Pollard v. Photographic Company.³

There is a statutory prohibition against publication of evidence given in divorce proceedings contained in the Judicial Proceedings (Regulation of Reports) Act, 1926, section 1 (1) (6). That is intended to operate for the benefit of all persons concerned in the suit as well as the public at large: see per Willmer L.J. in Windeatt v. Windeatt.⁴ It relates to any matters of a defamatory nature. The law as to defamatory matters in general is this:- the court has jurisdiction to restrain by interlocutory injunction if necessary the publication of any defamatory statement but it is a discretionary jurisdiction which ought to be exercised with the utmost care and only when the statement is clearly defamatory. Further. more if the defendant states in his affidavit that the statement in question is true in substance and in fact and that he intends to

2 [1913] 2 Ch. 469; 29 T.L.R. 623, C.A.

3 (1889) 40 Ch.D. 345.

4 [1962] 1 W.L.R. 527, 532; [1962] 1 All E.R. 776, C.A.

justify it at the trial, the court ought not to grant an interlocutory injunction unless it is clear on the evidence before it that the statement is untrue and a plea of justification must fail. The locus classicus for the law on this question is the case of Bonnard v. Perryman⁵ where it is laid down by Coleridge L.J. in a judgment in the Court of Appeal convened by Lord Esher M.R. with three Lords Justices. In the present case both the first and second defendants have stated in their affidavits that all defamatory matters in the articles they propose to publish are true and that it is in the intention of all the defendants to enter a plea of justification. That being so, we concede that we cannot ask for interlocutory relief, in respect of those statements in these articles which are merely defamatory, although we reserve right to do so in the future. But the second defendant in his affidavit also states that in so far as any matter in the proposed articles is a report of judicial proceedings it is a fair and accurate report made in good faith and without malice and is therefore privileged. This is not true in law. It is only contemporaneous reports that are privileged in these circumstances and any purported reports in these articles are not contemporaneous: Law of Libel Amendment Act, 1888, s. 3.

The law is that "the confidences of married life should be respected and will be protected by the court save in so far as public policy requires otherwise." The subsistence of a marriage itself supplies the necessary confidential element to all communications between husband and wife during the subsistence of that marriage other than the mere trivialities of normal everyday conversation, and it is not necessary to imply any special agreement between the spouses that a communication should be confidential, provided that it is such that either party might reasonably object to its publication. Further the dissolution of the marriage cannot affect in any way that respect and protection which ought to be accorded to communications between the spouses made whilst the marriage was still subsisting. We rely on Rumping v. Director of Public Prosecutions⁶ where a number of old cases are referred to. That case is not directly in point because the only question there for decision was whether a letter written by a husband to his wife, which was never received by her, but found by a third party, was admissible in evidence in criminal proceedings against the husband. The House of Lords was only concerned

5 [1891] 2 Ch. 269.

6 [1964] A.C. 814; [1962] 3 W.L.R. 373; [1962] 3 All E.R. 256, H.L.(E).

directly with evidence by third parties but they seemed to have accepted the principle that if the letter would have been inadmissible at common law, if actually received by the wife, then it would equally be inadmissible if intercepted and put in evidence by a third party; although the third party was not covered by the statutory protection given to the wife. They therefore considered whether, apart from the statutory provisions as to admissibility of evidence by one spouse against another, there was any established rule of common law that communications between spouses are inadmissible in evidence in criminal and civil proceedings. They came to the conclusion,⁶ Lord Radcliffe dissenting, that there was no such rule. The majority came to that conclusion mainly on the grounds that it brought into conflict two considerations of public policy. First, what they recognised as an established principle, that communications between spouses ought to be respected and protected, and, secondly, that it was of vital public interest that the truth should be ascertained in criminal proceedings. They held that the latter consideration was the paramount one. They also indicated, obiter, that the same considerations would apply in the case of admissibility in civil proceedings. The House of Lords was not dealing with whether publication of such statements should be restrained, but only with their admissibility as evidence in legal proceedings.

Nothing of that sort is applicable here where we are concerned only with the first principle, i.e., the sanctity of marital communications. There is nothing to conflict with that principle except the desire of the Duke and his co-defendants to publish such communications broadcast to the populace for their own pecuniary gain. In such a case publication cannot be said to be in any way in the interests of justice; indeed it may even be said to be contrary to the public interest, quite apart from breach of marital confidence, to pander in this way to the appetite of some sections of the public for sensational and salacious material purely for personal gain.

Lord Radcliffe in Rumping v. Director of Public Prosecutions⁷ dissented on the ground that the absence of a common law rule that all communications between spouses were inadmissible in evidence did not preclude the application of an acknowledged principle (i.e., that which is submitted is the law) to a case that seemed to him clearly to call for its application. The majority of the House of Lords, while recognising the existence of this

6 [1964] A.C. 814.

7 Ibid. 835.

well-established principle, considered that the absence of any established comprehensive rule of common law that such statements were inadmissible in evidence in all cases was fatal to the contention that marital communications were inadmissible in evidence in criminal, and or indeed civil, proceedings in any particular case. All the court is now concerned with is the existence of the established principle to which Lord Radcliffe and other noble and learned lords refer, and therefore Lord Radcliffe's dissenting speech⁷ becomes just as important as those of the other noble and learned lords for the purposes of the present case. Rumping v. Director of Public Prosecutions⁸ supports the contention that an injunction can be granted to restrain a breach of marital confidence.

Peter Foster Q.C. and Hugh Davidson for the defendants. First, we rely on the Law of Libel Amendment Act, 1888. The privilege given by the Act to the publication of court proceedings is absolute - unlike that given by common law which is qualified: see Gatley on Libel and Slander, 5th ed. (1930), pp. 187, 231, 301. Secondly, we say that the plaintiff cannot rely on the fact that some of the articles may be contrary to s. (1) (i) (b) of the Judicial Proceedings (Regulation of Reports) Act, 1926, in that they relate to extra details of photographs and to the contents of some letters disclosed. Contravention of the Act of 1926 may lead to criminal proceedings being instituted by the Attorney-General, but it does not give a cause of action to the public at large. If proceedings were brought we would submit (a) that the Act of 1926 only seeks to restrain facts being published which are given in evidence and obtained by a person at the hearing - it does not restrain publication of facts obtained apart from the hearing; (b) that the details contained in the judgment of Wheatley L.J. in the Court of Session are quite immaterial and add nothing to what was said in his judgment; and (c) that the Attorney-General would not or might not start any proceedings. In any event none of these questions can be decided in this court on an interlocutory application since an injunction will not be granted to restrain a criminal act unless it involves an injury to property: see Halsbury's Laws of England, 3rd ed. (1957), Vol. 21, p. 347; Attorney-General v. Sheffield Gas Consumers⁹; Emperor of Austria v. Day.¹⁰ If the plaintiff is right the second and third defendants may be running the risk of a criminal prosecution, but the court will not prevent them by injunction from running that risk.

8 [1964] A.C. 814.

9 (1853) 3 De G.M. & G. 304, 320.

10 (1861) 3 De G.F. & J. 217.

It is not open to a husband to contract with his wife that he would not mention a given matter again. They are one person in law in this purpose, and in any event it cannot be said that there was ever any intention to enter into a binding contract.

The plaintiff relies on something called "breach of marital confidence." There has never been a principle or rule of law that communications between spouses are confidential. We rely upon Rumping v. Director of Public Prosecutions,¹¹ in which it was stated that there has never been a rule that no person could give any evidence of any communication between spouses. Although we agree that the preservation of confidence was given as a reason for the rule that one spouse was incompetent to give evidence against the other, all the cases refer to the competence of a spouse as a witness. There is no case showing that communications between spouses are confidential and should be protected. If that were the law why should not the relationship between parent and child be protected? There is a remedy for breach of confidence but it only exists where a confidential relationship, as defined by law, has been established: see the leading case of Prince Albert v. strange.¹² The law is developed in Lord Ashburton v. Pape¹³; Pollard v. Photographic Company¹⁴; Abernathy v. Hutchinson¹⁵; Gilbert v. Star Newspaper.¹⁶ The modern cases deal with servants with secret and commercial knowledge: Saltman Engineering Co. v. Campbell Engineering Co.¹⁷; Terrapin Ltd. v. Builders Supply Co. Ltd.¹⁸ But in every case it is essential to prove that the information was confidential or that there was a confidential relationship. The plaintiff has failed to do this. It would be odd if the marital relationship were so in view of Balfour v. Balfour.¹⁹

The duty not to disclose only exists in three cases: (a) where the security of the community is at stake; (b) where there is a particular relationship such as that of client and barrister; (c) where there is an implied contract that information will not be disclosed, for example, where an employee acquires secret information through his employment.

It is almost impossible to define a confidential relationship for this purpose, and even if it could be done the marital relationship would not come within that definition.

If the relationship of husband and wife is indeed, and we say it is not, confidential, the plaintiff herself has broken that confidence

11 [1964] A.C. 814.

12 (1894) 1 H. & T. 1.

13 [1913] 2 Ch. 469.

14 40 Ch.D. 345.

15 (1824) 1 H. & Tw. 28.

16 (1894) 11 T.L.R. 4.

17 [1948] R.P.C. 208.

18 [1960] R.P.C. 128.

19 [1919] 2 K.B. 571.

by publication in the "Sunday Mirror." In any event the plaintiff has disentitled herself to any relief in respect of secrets of the marriage bed by her attitude to the sanctity of marriage.

Sir Andrew Clark Q.C. in reply. Romer L.J.'s judgment in Solomons v. R. Gertzenstein Ltd.,²⁰ must be read with the statement of Willmer L.J. in Windeatt v. Windeatt²¹ and indicates that the Judicial Proceedings (Regulation of Reports) Act 1926 falls into the category of Acts for the protection of a special class (i.e., anyone named in divorce proceedings), as well as for the benefit of the public at large. The Act of 1926 does not say anything about only applying to facts ascertained in court, and it would apply equally if a witness repeated out of court matters which he had said in court. The disclosures complained of are all quotations from letters belonging to the plaintiff. Either the Duke got these letters properly in course of discovery in the action, in which case they are clearly covered by the Act of 1926, or else he must have obtained them improperly in which case their disclosure would be a gross breach of marital confidence and therefore fall under that head. In either case he ought to be restrained from publishing them.

If I am right that the court has jurisdiction to grant an injunction to restrain breaches of marital confidence this is the clearest type of marital confidence it is possible to imagine. The fact that confessions of adultery can be given in evidence in divorce proceedings is nihil ad rem because there is a statutory provision allowing for this. The fact that statements can be given in evidence which are in breach of confidence does not mean that they can be repeated or published otherwise than in the course of evidence in judicial proceedings.

Turning to the Timpson action, we rely primarily on breach of an express contract or agreement with the Duke that he would not mention again the subject-matter of the action. It is not accepted that there can be no contract of this sort between spouses. It may have been so in the old days when they were regarded as one person, that is not so today. Further even if this did not constitute a contract enforceable at common law it certainly created a trust or confidence between the spouses in view of their marital relationship, which, although it prevented the agreement from being enforceable at law, would be protected by a court of

20 [1954] 2 Q.B. 243, 261; [1954] 3 W.L.R. 317; [1954] 2 All E.R. 625, C.A.

21 [1962] 1 W.L.R. 527, 532.

equity. "Equity is not limited to cases where there is a right at law": Stevens v. Chown.²²

Mr. Foster says that there has never been a principle of law that any communications between spouses is confidential. If by that he means simply that it has never been established that disclosure of communications between spouses would found an action at common law for breach of confidence we would accept this. If he means more than that we do not. The fact that disclosure would not give rise to any right at law is immaterial because that does not prevent it being the subject of an action in a court of Equity. Rumping v. Director of Prosecutions²³ clearly recognises that communications between spouses and facts ascertained during the subsistence of the marriage by reason of the subsistence of that state are confidential, though not thereby prevented from being given in evidence in a court of law; that is quite sufficient to bring them within the principle laid down in Prince Albert v. Strange.²⁴ All that Mr. Foster says about this case is that its application is limited to cases where persons are in a confidential relationship to each other. That we accept. But if spouses are not in a confidential relationship to each other during the subsistence of the marriage, who is? It is a complete non-sequitur to suggest that this protection would extend to communications between parents and their children. The relationship between parents and children bears no relation whatever to the relationship between husband and wife and we do not accept that there can be any confidential relationship in this sense between parents and their children. If there is any confidential relationship at all it would only be an occasional one in respect of communications from the child to the parent during the child's minority.

If the plaintiff's own articles in the "Sunday Mirror" were relevant they would not justify the Duke in doing the same save and only in so far as they related to the same matters that the plaintiff herself had disclosed. At the most it would be a matter for the court to take into consideration when deciding whether or not this was a case in which the court would exercise its discretion and grant interlocutory relief.

As to the contention that the plaintiff by her attitude to the matrimonial state had disentitled herself to rely on the marital relationship as a ground on which to base her claim - there is no authority whatsoever for suggesting that the fact that she had little regard for the sanctity of marriage would preclude her from

22 [1901] 1 Ch. 894, 904.

23 [1964] A.C. 814.

24 1 H. & T. 1.

complaining of breaches of marital confidence. At most this would simply be another matter which the court might properly have in mind when exercising its discretion.

Hugh Davidson referred to cases cited in reply.

December 4. UNGOED-THOMAS J. granted the injunctions sought, subject to consideration of their precise form after his judgment had been given, indicating the passages complained of which in his view came within the injunctions.

December 9. UNGOED-THOMAS J. read the following judgment. The plaintiff, Margaret, Duchess of Argyll, is the last of the three wives whose marriage to the Duke of Argyll has ended in divorce. The first defendant is the Duke of Argyll; the second defendant, R. Stuart Campbell, is editor of the Sunday newspaper, "The People"; and the third defendant, Odhams Press Ltd., are proprietors, printers and publishers of that paper.

The plaintiff asks for injunctions to restrain the defendants from publishing, in articles by the Duke in the newspaper, "The People," statements about the plaintiff which are said to be: (1) in breach of marital confidence; (2) in respect of certain actions and proceedings in court; (3) in respect of evidence given at the hearing of the Duke's divorce petition in the Scottish Court of Session; and (4) statements defamatory of the plaintiff.

The claim for interlocutory relief on this last ground has not been proceeded with at this stage, because the defendants rely on the plea of justification and, where that plea is relied on, then an interlocutory injunction is not granted unless it is clear that the plea must fail. In this case it is therefore recognised that the issue on defamation is not appropriate for interlocutory decision; but subject to that, of course, the plaintiff reserves all her objections and rights.

Two articles by the Duke have appeared and no question about them arises before me. Four more were threatened to be published, namely, articles referred to as Nos. 3-6 inclusive when the motion first came before me on November 27. There was no objection to article No. 5, and so on that day an undertaking was given not to publish any article except No. 5, and so this motion is now concerned with articles Nos. 3, 4 and 6. Last Friday I gave my decision and granted injunctions subject to reconsideration

of their precise form after this judgment. It is the reasons for that decision that this judgment now gives.

I will first state briefly the facts which form the, background of this application. In March, 1951, the Duke married the plaintiff and in March, 1963, there was a decree of divorce by the Court of Sessions in Scotland; so that the plaintiff and the Duke had been married for twelve years. The Duke had been married twice before. The plaintiff had been married once before. Both had issue by previous marriages. The Duke has now remarried his fourth wife, but the plaintiff has not remarried. In May, 1959, the Duke's second wife, who had remarried and become Mrs. Timpson, and her son by the Duke, the Marquess of Lorne, commenced an action against the plaintiff in the Queen's Bench Division claiming an injunction and damages. The plaintiff did not defend that action and by consent an injunction against her was granted in chambers. The plaintiff says that she consented at the express request of the Duke, and in reliance on the promise by him, that the subject-matter of that action would never be mentioned again; and that is one of the grounds on which she relies for one of the injunctions which she claims. That action has been referred to, and I shall continue to refer to it, as the Timpson action.

In September, 1959, the Duke presented a petition for divorce from the plaintiff in the Court of Session in Scotland on the grounds of her adultery. Those proceedings are referred to as the divorce proceedings.

In November, 1959, Mrs. Timpson started committal proceedings against the plaintiff for alleged breach of the injunction in the Timpson action. Those proceedings are referred to as the committal proceedings. On December 21, 1959, the committal proceedings were heard by Paull J. in chambers and no committal order was made. He gave directions in open court against publication about what happened in chambers. The secrecy of proceedings in chambers in the Timpson action, reinforced by the statement of Paull J., is relied on as a ground for one of the injunctions claimed.

In October, 1960, the plaintiff filed a cross-petition in the divorce proceedings in Scotland, and that is referred to as the cross-petition.

In June, 1962, the plaintiff's step-mother, Mrs. Wigham, commenced an action against the plaintiff and another in the Queen's Bench Division claiming damages for conspiracy, malicious prosecution, libel and injurious falsehood, based on allegations in

the plaintiff's cross-petition for divorce. Those proceedings are referred to as the Wigham action.

On May 29, 1962, the cross-petition was withdrawn and no evidence was submitted in support of it. It is claimed by the plaintiff that publication of the charges made in that cross-petition is made unlawful by statute and that the plaintiff is entitled to an injunction, which she claims, to prevent their publication.

On October 15, 1964, the Wigham action was settled by compromise on terms scheduled to the order. Counsel for all parties stated in open court that the plaintiff's claim for conspiracy, malicious prosecution and injurious falsehood was to be dismissed, but the plaintiff was to pay Mrs. Wigham £25,000 in respect of the libels complained of and to pay her costs. It was stated by counsel in open court that all parties undertook that none of them would make a statement or comment on matters in dispute on that action to anyone, and the scheduled terms contained an undertaking to the court to the same effect. The plaintiff claims that she is entitled in the circumstances to have that undertaking enforced against the Duke by injunction.

In February, 1963, the divorce proceedings were heard by the Court of Session, and later a decree was made of dissolution of the marriage between the Duke and the plaintiff on the ground of the plaintiff's adultery.

Those, very briefly, are the facts and an indication of the grounds of the plaintiff's claims.

These claims raise two important questions of law of general interest: (1) whether secret confidences made between husband and wife during their marriage will be protected by the court, and (2) whether a party to divorce proceedings is entitled to apply to the court to enforce the Act of Parliament which prohibits publication with regard to those proceedings. The second question turns entirely on the interpretation of the Act of Parliament, but the first question raises difficult and profound questions of the policy of the law, its function in our society and how far it is still capable, if need be, of development to carry out that function. The answer concerns every home in the country.

This first question is raised by the first injunction for which the plaintiff asks. It is an injunction to restrain the defendants from publishing - and I quote the words in the notice of motion -

"Secrets of the plaintiff relating to her private life, personal affairs or private conduct, communicated to the first defendant in confidence during the subsistence of his marriage to the plaintiff and not hitherto made public property."

The first one-third of the third article falls within that description.

The plaintiff in paragraph 3 of her affidavit filed on November 16 describes a relationship of mutual confidence and shared secrets with her husband over a number of years, which is happily normal amongst married people. She says:

"During a number of years before our marriage began to deteriorate, my ex-husband and I had a very close and intimate relationship in which we freely discussed with each other many things of an entirely private nature concerning our attitudes, our feelings, our hopes, aspirations and foibles, our past lives and previous marriages, our business and private affairs, and many other things which one would never have discussed with anyone else. Apart from explicit discussion, we naturally discovered many things about each other which, but for our close relationship, we would not have done. These things were talked about and done on the implicit understanding that they were our secrets and that we allowed the other one to discover them only because of the complete trust and mutual loyalty which obtained between us and created an absolute obligation of confidence."

I turn now to the law. First I will consider how far the court will restrain breaches of confidence independently of confidences between husband and wife. It is clear that the court may restrain breach of confidence arising out of contract or any right to property. The question whether the court's protection is limited to such cases was considered in two authorities to which I shall refer. The first is Prince Albert v. Strange.¹ In that case Queen Victoria and Prince Albert had made drawings and etchings of their children and other subjects of interest to the family. Impressions of them had come into the hands of the defendants who proposed to exhibit and publish copies of them and make and publish a catalogue of them. Prince Albert successfully applied to the court for an injunction to restrain them from doing so. The headnote, so far as is material, reads:

"The maker and owner of etchings which have never been exhibited or published, and of which no impressions have been made except for his private use, but impressions whereof have, by improper and surreptitious means, come into the possession of other parties, is entitled to an injunction, not only to restrain those parties from exhibiting those impressions, and from publishing copies of them, but also to restrain them from publishing a catalogue compiled by themselves, in which an enumeration and descriptive account of those etchings is contained, and that, although there is no violation of any

1 (1849) 1 H. & T. 1; 1 Mac. & G. 25.

contract, either express or implied, between the owner and the compilers of the catalogue."

Lord Cottenham L.C. dealt first with the plaintiff's property in the etchings. He said²:

"Upon the first question, therefore, that of property, I am clearly of opinion, that, the exclusive right and interest of the plaintiff in the compositions and works in question being established, and there being no right or interest whatever in the defendant, the plaintiff is entitled to the injunction of this court to protect him against the invasion of such right and interest by the defendant, which the publication of any catalogue would undoubtedly be."

Then the Lord Chancellor continued:

"But this case by no means depends solely on the question of property; for a breach of trust, confidence or contract itself would entitle the plaintiff to the injunction. The plaintiff's affidavit states the private character of the work or composition, and negatives any licence or authority for publication (the gift of some of the etchings to private friends not implying any such licence or authority); and states distinctly the belief of the plaintiff that the catalogue, and the descriptive and other remarks therein contained, could not have been compiled except by means of the possession of the several impressions of the etchings, surreptitiously and improperly obtained. To this case no answer is made, the defendant saying only, that he did not at the time believe the etchings to have been improperly obtained, but not suggesting any mode by which they could have been properly obtained, so as to entitle the possessor to use them for publication."

Then the Lord Chancellor said,³ in referring to another case, Wyatt v. Wilson⁴:

"In that, as in this case, the matter or thing of which the party had obtained knowledge being the exclusive property of the owner, he has a right to the interposition of this court to prevent any use being made of it; that is to say, he is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his own."

He continued⁵:

"This was the opinion of Lord Eldon, expressed in the case of Wyatt v. Wilson,⁶ in the year 1820, respecting an engraving of George III, during his illness; in which, according to a note with which I have been furnished by Mr. Cooper, he said, 'If one of the late King's physicians had kept a diary

2 1 H. & T. 1, 23.

3 Ibid. 25.

4 1820 (unreported).

5 1 H. & T. 1, 25.

6 1820 (unreported).

of what he had heard and seen, this court would not in the King's lifetime, have permitted him to print or publish it.'"

The diary there was the physician's and the only thing which could be described in any sense as the property of the King was the information it contained and to which the physician was given the access. If such information can be regarded as within the protection afforded to property then similar confidential information communicated by a wife to her husband could also be so regarded.

The Lord Chancellor continued⁷:

"Some minor points were raised at the Bar, to which I will shortly advert. It was contended, there ought not to be any injunction until the plaintiff had established his title at law; and cases were referred to, in which it was supposed I had laid down rules establishing such a proposition. The cases referred to are cases in which the equitable jurisdiction arose from some legal title, and was exercised solely for the purpose of protecting the party in the enjoyment of such legal title, and they have no application to cases in which this court exercises an original and independent jurisdiction, not for the protection of a merely legal right, but to prevent what this court considers and treats as a wrong, whether arising from violation of unquestioned right or from breach of trust, confidence or contract, as in the present case, and in the case of Mr. Abernethy's lectures. But, even in the cases so referred to, I have always held, that it was for the discretion of the court to consider whether the defendant might not sustain greater injury from an improper injunction, than the plaintiff from delay in granting it. In the present case, where the privacy is the right invaded, the postponing of the injunction would be the equivalent to denying it altogether. The interposition of this court in these cases does not depend on any legal right; and to be effectual, it must be immediate."

The second case to which I would refer is Pollard v. Photographic Company.⁸ In that case a photographer, who had taken a negative likeness of a lady to supply her with copies for money, was restrained from selling or exhibiting copies, both on the ground that there was an implied contract not to use the negative for such purposes, and also on the ground that such sale or exhibition was a breach of confidence.

North J. says⁹:

"Again, the recent case of Tuck v. Priester¹⁰ is very much in point. The plaintiffs were the unregistered owners of the copyright in a picture, and employed the defendant to make a

7 1 H. & T. 1, 25.

8 (1889) 40 Ch.D. 345.

9 40 Ch.D. 345, 350.

10 (1887) 19 Q.B.D. 629.

certain number of copies for them. He did so, and he also made a number of other copies for himself, and offered them for sale in England at a lower price. The plaintiffs subsequently registered their copyright and then brought an action against the defendant for an injunction and for penalties and damages. The Lords Justices differed as to the application of the Copyright Acts to the case, but held unanimously that "

- and this is the important part -

"independently of those Acts, the plaintiffs were entitled to an injunction and damages for breach of contract."

North J. quoted from Lindley L.J. in Tuck v. Priester¹¹ and said¹²:

"Then Lindley L.J. says¹³: 'I will deal first with the injunction, which stands, or may stand, on a totally different footing from either the penalties or the damages. It appears to me that the relation between the plaintiffs and the defendant was such that, whether the plaintiffs had any copyright or not, the defendant has done that which renders him liable to an injunction. He was employed by the plaintiffs to make a certain number of copies of the picture, and that employment carried with it the necessary implication that the defendant was not to make more copies for himself, or to sell the additional copies in this country in competition with his employer. Such conduct on his part is a gross breach of contract and a gross breach of faith, and in my judgment, clearly entitles the plaintiffs to an injunction, whether they have a copyright in the picture or not.' That case is the more noticeable, as the contract was in writing; and yet it was held to be an implied condition that the defendant should not make any copies for himself. The phrase 'a gross breach of faith' used by Lindley L.J. in that case applies with equal force to the present, when a lady's feelings are shocked by finding that the photographer she has employed to take her likeness for her own use is publicly exhibiting and selling copies thereof. It may be said that in the present case the property in the glass negative is in the defendant, and that he is only using his own property for a lawful purpose. But it is not a lawful purpose to employ it either in breach of faith, or in breach of contract."

There we have the contrast which is important to this case.

"Again in Murray v. Heath,¹⁴ the plates were the property of the defendant, for they had not been delivered to or accepted by the plaintiff. So in the case of Duke of Queensberry v. Shebbeare¹⁵ the defendant was restrained from publishing a work of the Earl of Clarendon, although a person had been expressly allowed by the owner to make and retain as his

11 19 Q.B.D. 629, 638.

12 40 Ch.D. 345, 351.

13 19 Q.B.D. 629, 638.

14 (1831) 1 B. & Ad. 804.

15 (1758) 2 Eden 329.

own a copy of the manuscript, which copy he had sold to the defendant. There too an agreement or condition was implied that the manuscript should not be published. Again, it is well known that a student may not publish a lecture to which he has been admitted, even though by his own skill he has taken a copy of it in shorthand; and the receiver of a letter may not publish it without the writer's consent, though the property in the paper and writing is in him; and many similar instances might be given."

These cases, in my view, indicate (1) that a contract or obligation of confidence need not be expressed but can be implied (which, I confess somewhat to my surprise, I understood to be disputed at one stage at any rate of the argument); (2) that a breach of confidence or trust or faith can arise independently of any right of property or contract other, of course, than any contract which the imparting of the confidence in the relevant circumstances may itself create; (3) that the court in the exercise of its equitable jurisdiction will restrain a breach of confidence independently of any right at law.

Now I turn to the confidences between husband and wife during marriage. Marriage is, of course, far more than mere legal contract and legal relationship, and even legal status; but it includes legal contract and relationship. If, for the court's protection of confidence and, contrary to my view, the confidence must arise out of a contractual or property relationship, marriage does not lack its contract. It is basically a contract to be and, according to our Christian conception of marriage, to live as man and wife. It has been said that the legal consideration of marriage - that is the promise to become and to remain man and wife - is the highest legal consideration which there is. And there could hardly be anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed. To express it is superfluous; it is clear to the least intelligent. So it seems to me that confidences between husband and wife during marriage are not excluded from the court's protection by the criteria appearing in the cases to which I have referred. But, nevertheless, are there other considerations which should deny them that protection?

In Rumping v. Director of Public Prosecutions,¹⁶ the House

16 [1964] A.C. 814; [1962] 3 W.L.R. 763; [1962] 3 All E.R. 256, C.C.A. and H.L.(E.).

of Lords considered the question whether an intercepted communication between husband and wife was admissible against the husband in evidence for the prosecution, and it was decided that it was so admissible. In that case the appellant, who was the mate of a Dutch ship, was convicted of non-capital murder committed at Menai Bridge. Part of the evidence for the prosecution admitted at his trial consisted of a letter that he had written to his wife in Holland which amounted to a confession. The appellant had written the letter on the day of the killing, on board his ship after it had left Menai Bridge for Liverpool; he had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrived at a port outside England. The appellant was arrested when the ship reached Liverpool, and after his arrest the member of the crew handed the envelope to the captain of the ship who handed it over to the police. The member of the crew, the captain and the translator of the letter gave evidence at the trial but the wife was not called as a witness. On appeal against conviction on the ground that the letter was wrongly admitted in evidence, it was held that the appellant was rightly convicted because the letter was admissible in evidence.

The House of Lords directed their observations to the admissibility of such evidence in legal proceedings, and not to the different question whether, otherwise than for the purpose of such evidence, communications were subject to the protection of the law. This, I think, appears from the speech of Lord Morris with which the majority of the Lords agreed. He said¹⁷

"It was contended that it was and is a rule of the common law applying both in civil and in criminal cases that all communications made between husband and wife during marriage are inadmissible in evidence. It was submitted that the rule applies with equal force to a communication intended by one spouse for the other even though never received."

Then he said¹⁸:

"These contentions involve the further contention, which now calls for inquiry, that at common law there were two separate rules: that apart from what I may call the general common law rule that one spouse was incompetent to give evidence concerning the other, there was a separate and distinct rule that no person at all could give any evidence of any communication between spouses. My Lords, though authority is not lacking which pronounces the general rule that at common law husbands and wives were not allowed to give evidence for

17 [1964] A.C. 814, 848.

18 Ibid.

or against each other, I can find no authority in support of the suggested separate and distinct rule."

These remarks are clearly limited to the admissibility of the communications in evidence and not to their protection where no question of admitting in evidence arises.

Lord Morris indicated¹⁹ that if there were a rule that communications between husband and wife could not be given in evidence in legal proceedings, it would be necessary to weigh this against another and competing requirement of public policy, that in legal proceedings the truth should be ascertained. Lord Morris said¹⁹:

"Had occasion arisen in the past for debate as to whether on grounds of public policy some such rule as that contended for was desirable it seems to me that there would have been competing and diverging aspects of public policy to be weighed. Respect is due to the confidences of married life; but so is respect due to the ascertainment of the truth. Marital accord is to be preserved: but so is public security."

All the Lords of Appeal recognised the importance in the eyes of the law of preserving confidential communications between husband and wife inviolate. They all agreed that this was a reason for the old rule that husband and wife were not competent to give evidence against each other. For the need to preserve confidential communications between husband and wife to be a reason for a rule of the law necessarily establishes to my mind that the preservation of those communications inviolate is an objective of public policy.

Lord Radcliffe went further, in this respect differing from the others, and, therefore, dissenting as to this conclusion. He considered that it was not only a reason for the rule but that it was a principle of the law that such communications should not be admissible in evidence in legal proceedings.

I come now to the passages in the speeches which bear on this question of public policy. Lord Reid said²⁰:

"The case for the appellant is that there is a rule or principle of the common law which protects communications between husband and wife which are not intended to be disclosed to others. It was argued that, if a third person overhears such a conversation or intercepts or obtains possession of a letter or other writing from one spouse to the other, the law will not require or permit him to disclose that communication in evidence in any case, civil or criminal."

19 [1964] A.C. 814, 860.

20 Ibid. 831.

Then he said²¹:

"On the other hand there are many clear and forcible expressions of opinion that it is contrary to public policy to require disclosure of confidential communications between husband and wife: it is better that injustice should sometimes be done by preventing such disclosure than that the fear of possible future disclosure should be a general embarrassment to marital relations. It is true that most if not all of these opinions were expressed with regard to direct disclosure by one of the spouses. But it would be almost as embarrassing to marital relations if spouses had to fear possible future disclosure by a witness who was an eavesdropper or who had intercepted or stolen a letter from one spouse to the other. Any legal principle based on such considerations would demand that communications between husband and wife should be equally protected both in civil and criminal proceedings against disclosure by one of the spouses or by some third person. So, if I could be satisfied that these considerations had been generally accepted as a basis of a doctrine of public policy, I would not be deterred from applying them to this case by the mere fact that no rule regarding disclosure of such communications by third persons had ever been formulated. The rarity of cases involving such disclosure by third persons would sufficiently explain the absence of any such rule."

In this passage, as appear from its opening words, the disclosure referred to is disclosure which it is possible "to require," i.e., disclosure in legal proceedings.

Lord Reid expressed his conclusion²²:

"I can state my conclusion in this way. Before 1853 there was no established rule or principle which would have enabled this appeal to succeed. There were, however, statements with regard to public policy which would have carried the appellant a very long way. But public policy is essentially a matter for Parliament, and the terms of section 3 of the Act of 1853 show that the Parliament of that time did not regard it as contrary to public policy to permit disclosure of communications between husband and wife."

Again, I read "disclosure" as meaning disclosure in evidence in legal proceedings and "public policy" as considered in relation to those proceedings. He thus continued²³:

"I cannot find in anything that has happened since that date sufficient ground to entitle the court now to take a different view as to public policy, and I can find no other basis on which this appeal could succeed. I therefore move that this appeal should be dismissed."

21 [1964] A.C. 814, 832.

22 Ibid. 835.

23 Ibid. 836.

Lord Radcliffe said²⁴:

"If evidence had been tendered in this form it would have raised explicitly the issue that lies behind the present appeal, in which we have to inquire whether the principle is confined merely to securing that the spouses themselves do not become the agents of disclosure by appearing as witnesses or goes further and for reasons of public policy protects the marital confidences as such, in whatever form it is sought to expose them as material of evidence."

He referred²⁵ to Monroe v. Twisleton²⁶ and the often quoted statement of Lord Alvanley C.J.,²⁷ who said of a divorced wife who was called to prove a contract made during the marriage:

"To prove any fact arising after the divorce this lady is a competent witness, but not to prove a contract or anything else which happened during the coverture. She was at that time bound to secrecy; what she did might be in consequence of the trust and confidence reposed in her by her husband; and miserable indeed would the condition of a husband be, if, when a woman is divorced from him, perhaps for her own misconduct, all the occurrences of his life, entrusted to her while the most perfect and unbounded confidence existed between them, should be divulged in a court of justice. If she might be a witness in a civil proceeding, she might equally be so in a criminal prosecution; and it never shall be endured that the confidence which the law has created while the parties remained in the most intimate of all relations, shall be broken whenever, by the misconduct of one party (for misconduct alone can have that effect), the relation has been dissolved."

Then Lord Radcliffe continued²⁸:

"I must pause on this decision. It does not stand alone. It has been 'approved again and again' (see Reg. v. Algar,²⁹ per Lord Goddard C.J.).³⁰ Although the witness was rejected on the ground of incompetency, the reason of rejection could not have been a concern to avoid strain or embarrassment in any existing marital relation, for that relation had been determined by divorce. The principle of rejection could only have been that there was a sanctity in marital confidences themselves which made them an inadmissible subject of evidence in legal proceedings. To say that it was a decision of competence does not therefore, I think, diminish its importance for our purpose. The witness was treated as incompetent solely because of the proposed content of her evidence: it was the content then that was the basis of exclusion not the witness. This decision is the first of several in which the principle of

24 [1964] A.C. 814, 836.

25 Ibid. 838.

26 (1802) Peake Add.Cas. 219.

27 Ibid. 220.

28 [1964] A.C. 814, 839.

29 [1954] 1 Q.B. 279; [1953] 3 W.L.R. 1007; [1953] 2 All E.R. 1381.

30 [1954] 1 Q.B. 279, 286.

preserving the confidence of the conjugal relation was applied in circumstances in which there was no existing conjugal relationship to disturb. I infer from this that the court's concern was that no marriage relation, while it subsisted, should be infected by the fear or suspicion that things said only by reason of the special confidence of that relation might later become the material of legal evidence affecting the speaker. Perhaps that is no more than another way of saying that the court appreciated the real impropriety of such a disclosure."

Then Viscount Radcliffe continued³¹:

"Monroe v. Twisleton³² was decided in 1802. In 1805 in Aveson v. Kinnaird (Lord)³³ Lord Ellenborough C.J. referred to that case and said that Lord Alvanley had mentioned a 'general doctrine, that trust and confidence between man and wife shall not be betrayed, and as such it is sound doctrine.' In 1824, in Doker v. Hasler,³⁴ Best C.J. also referred to Monroe v. Twisleton³⁵ and said of it³⁶: 'I remember that in that case, in which I was counsel, Lord Alvanley refused to allow a woman, after a divorce, to speak to conversations which had passed between herself and her husband, during the existence of the marriage. I am satisfied with the propriety of that decision, and I think that the happiness of the marriage state requires that the confidence between man and wife should be kept for ever inviolable.' There a widow was to be called as witness and it was therefore another case in which nothing could require protection except the content of the confidential communications made during the former marriage. O'Connor v. Marjoribanks³⁷ was to the same effect. A widow's evidence was again in question and the court (Tindal C.J., Coltman and Maule JJ.) after full consideration, unanimously approved Lord Alvanley's decision in Monroe v. Twisleton³⁸ as good law."

Then Lord Radcliffe said³⁹:

"So much, then, for the 'legal policy of marriage' in relation to the law of evidence. Its aim was, I think, the general one 'to ensure conjugal confidence' and it rested on a much wider principle than that of excluding witnesses on the ground of interest in the subject-matter of a suit."

It does not appear to me to detract from the obvious inherent strength of these observations, if I may respectfully so refer to them, that the majority concluded that nevertheless Parliament,

31 [1964] A.C. 814, 839.

32 Peake Add.Cas. 219.

33 (1805) 6 East 188, 193.

34 (1824) Ry. & M. 198.

35 Peake Add.Cas. 219.

36 Ry. & M. 198.

37 (1842) 4 Man. & G. 435.

38 Peake Add.Cas. 219.

39 [1964] A.C. 814, 840.

by the Evidence Acts, showed that the disclosure of communications between husband and wife were to be permitted in legal proceedings. In particular - and this is what matters for our purposes - Lord Radcliffe's observations, so it seems to me, stand, except in so far as they must be applied subject to the decision of the majority of the House, that the policy of the Evidence Acts had to prevail. But these Acts and their policy were directed to the giving of evidence in legal proceedings and not, as in the present case, to communications between spouses, independently of their admissibility in evidence in legal proceedings. Lord Radcliffe's observations, therefore, appear to me to apply without reservations to such a case as this.

Lord Morris summarised his review of the authorities, directed, as it was, to the exclusion of communications between spouses in evidence in legal proceedings. He said⁴⁰:

"The cases to which I have so far referred furnish ample authority for the proposition that at common law in civil cases a spouse would not be admitted as a witness either for or against the other spouse, and good reasons are assigned as the basis of this rule. But I discern no authority for the different proposition that no evidence may be given by anyone in regard to a communication made between a husband and a wife."

And he says⁴¹:

"My Lords, a survey of the authorities and of the statutory provisions leads me to the view that there has never been a rule at common law that no evidence may be given by anyone as to communications made between husband and wife during their marriage. There has, however, been a recognition of the feeling or public sentiment that in ordinary circumstances it is seemly that the confidences of married life should be respected and protected. That recognition found expression as one of the various reasons which were assigned for the old general rule as to incompetence of husbands and wives as witnesses. That general rule may have made it unnecessary to consider the desirability of some such rule as is suggested in the argument for the appellant and no occasion arose to assess or to define, as a matter of policy, the extent to which or the circumstances under which, the confidences of married life should as a matter of law be protected. When, however by the Act of 1853 the general rule was changed no rule was enacted to the effect that no evidence could be given of any intermarital communications: nor was it so enacted when the Act of 1898 was passed."

40 [1964] A.C. 814, 851.

41 Ibid. 860.

Lord Hodson also mentioned⁴² the need recognised by the law, to protect confidential communications between husband and wife, and he limited⁴³ his decision to the admissibility of those communications in evidence. Lord Pearce expressed himself to the same effect in two short passages. He said⁴⁴:

"The common law has been concerned to protect the unity of the spouses and marital confidences. Before 1853 that concern was satisfied by the rule that no spouse could give evidence for or against the other. And that concern was probably at least as much responsible for the rule as was the possibility of bias. There was therefore no need to make a rule excluding, as such, communications between husband and wife. Had such a need arisen, it may be that according to the views then held such a rule would have been evolved, after weighing the disadvantage in principle of disclosing such communications against the disadvantage in principle of excluding evidence which could lead the court to truth and justice."

Then Lord Pearce said⁴⁵:

"I doubt if the courts would still be entitled after the Act of 1853, and in the light of its terms, to evolve such a rule from the old common law doctrine of the unity of the spouses and the confidentiality of their private communications; but be that as it may, they did not seek to do so. Reg. v. Pamenter⁴⁶ gives no valid support for such a rule nor is there any other case which does. I appreciate the weight of those considerations which would tell in favour of such a rule were the matter res integra, but I venture to think that the other factors which fall to be considered on a question of public policy weigh more heavily."

It thus seems to me that the policy of the law, so far from indicating that communication between husband and wife should be excluded from protection against breaches of confidence given by the court in accordance with Prince Albert v. Strange⁴⁷ strongly favours its inclusion, and in view of that policy it can hardly be an objection that such communications are not limited to business matters. Of course, the relationship between husband and wife is a delicate relationship. As Atkin L.J. said in the famous passage in Balfour v. Balfour,⁴⁸ at common law in respect of promises between husband and wife "... each house is a domain into which the King's writ does not seek to run, and to which his

42 [1964] A.C. 814, 861.

43 Ibid. 864.

44 Ibid. 866.

45 Ibid. 867.

46 (1872) 12 Cox C.C. 177.

47 1 H. & T. 1.

48 [1919] 2 K.B. 571, 579.

officers do not seek to be admitted." But the protection of confidential communications between husband and wife is not designed to intrude into this domain but to protect it, not to break their confidential relationship but to encourage and preserve it. That is why it is the policy of the law and a reason for the old general rule of the common law which made husband and wife incompetent to give evidence in legal proceedings against each other.

There comes then, of course, the practical difficulty of deciding what communications between husband and wife should be protected. Lord Morris refers in Rumping v. Director of Public Prosecutions⁴⁹ to this as a reason for the old rule for excluding all evidence by husband and wife against each other, and not merely confidential communications between them. Such a difficulty would be a very good reason for not distinguishing between confidential and other information in the giving of evidence in legal proceedings. There quick decisions have to be made in the course of the giving of the evidence itself, and to be practical and effective a rule would have to be readily and quickly applicable. But an application for an injunction to restrain publication is based on the danger of the publication of particular communications which there is ample time for the court to consider. Of course, even in such cases, the decision has to be made whether a communication between husband and wife is confidential and should be protected. If this were a well-developed jurisdiction doubtless there would be guides and tests to aid in exercising it. But if there are communications which should be protected and which the policy of the law recognises should be protected, even to the extent of being a foundation of the old rule making husband and wife incompetent as witnesses against each other, then the court is not to be deterred merely because it is not already provided with fully developed principles, guides, tests, definitions and the full armament for judicial decision. It is sufficient that the court recognises that the communications are confidential, and their publication within the mischief which the law as its policy seeks to avoid, without further defining the scope and limits of the jurisdiction: and I have no hesitation in this case in concluding that publication of some of the passages complained of is in breach of marital confidence.

The defendants then submitted that, even if the plaintiff would otherwise be entitled to this injunction which she claims for breach of confidence, nevertheless she ought not to be granted this relief,

49 [1964] A.C. 814, 949-851.

first, on the ground that she herself had broken the mutual obligation of confidence between herself and her husband by some articles by her published in the "Sunday Mirror" last year; and secondly, by her attitude to the sanctity of marriage as set out in Lord Wheatley's judgment in the divorce proceedings which I have mentioned.

None of the matters complained of in the plaintiff's articles disclosed anything complained of in the Duke's articles. The Duke does not say that he can disclose matters because the plaintiff has already disclosed those same matters; but what he says is that the plaintiff has betrayed the marriage relationship in some ways and so he should be free to betray it in others.

In my view, by far the most serious complaint about anything in the plaintiff's articles is her statement in the article of June 9, 1963, which is exhibited to the plaintiff's affidavit, that her husband had been taking purple hearts or, to give them their medical name, drinamyl tablets. This, in my view, was a serious breach of confidence, nor, rightly, did plaintiff's counsel seek to submit otherwise. The other information in the plaintiff's articles most relied on by the defendants was that the Duke's Castle at Inverary was saved from being closed by assistance from the plaintiff's father and a legacy from a Miss Temple. But even after allowing for the disclosure about the purple hearts the accumulation of the Duke's breaches of most intimate confidences in his articles are, to my mind, of an altogether different order of perfidy. Indeed, the plaintiff's article of June 2, 1963, though not free from objection, yet leaves on my mind a more sympathetic and favourable impression of the Duke than do his own articles.

Lord Wheatley said that by 1960 the plaintiff's attitude to the sanctity of marriage was - and I quote -

"what the moderns might call sophisticated but what in plain language can only be described as wholly immoral."

The breaches of confidence of which the plaintiff now complains appear to be of confidences in the early years of the marriage, well before the period to which Lord Wheatley limited his strong condemnation. When these confidences were made the relationship of the plaintiff and the Duke was apparently that described in paragraph 3 of the plaintiff's affidavit from which I have already quoted - the normal confidence and trust between husband and wife.

Should, then, the plaintiff be denied the injunction which she would otherwise get because she has herself to an extent broken

confidence and because she, after the confidences of whose breach she complains, adopted an immoral attitude towards her marriage? A person coming to Equity for relief - and this is equitable relief which the plaintiff seeks - must come with clean hands; but the cleanliness required is to be judged in relation to the relief that is sought.

First, with regard to the plaintiff's articles, for the reasons already indicated I do not consider that the plaintiff's own articles justify the objectionable passages in the Duke's articles or, of themselves, should disentitle the plaintiff to the court's protection.

Secondly, with regard to the plaintiff's immorality, it was, of course, the basis for the divorce and the termination of the marriage. Such behaviour makes the confidential relationship of marriage impossible. However, what it does is to undermine confidence for the future and not betray the confidences of the past. If, on divorce, the innocent party is to be licensed to reveal marriage confidences, is the guilty party to be free to do so too? That would be piling injury on injury to the innocent and would be plainly intolerable. But the alternative would be that confidences, like costs, should follow the event. Yet the responsibility for the breakdown of a marriage, involving as it does the most delicate and intimate relationship, cannot always be exclusively attributed to the spouse against whom the divorce decree is granted. And is the marriage, to whose sanctity a spouse's attitude is material, the marriage between the spouses before the court, or is it to be marriage in general? Take, for example, the case of the Duke on whose behalf this submission is made. Is the attitude of the Duke towards his former marriages to be taken into consideration, or is it to be assumed that he travelled the road to Damascus between each marriage? And if the divorce decree is not to be decisive, is another inquiry to allocate the responsibility to be undertaken? - in which case the general course on such an interlocutory application as this would be to hold the status quo by granting an injunction pending trial. And if, as I have concluded, it is the policy of the law (which is the basis of the courts jurisdiction) to preserve the close confidence and mutual trust between husband and wife, then that policy and the purpose of the jurisdiction would indeed be impaired if subsequent adultery by one spouse, resulting in divorce, were to release the other spouse from obligation to preserve their earlier confidences. To repeat words already quoted from Viscount Radcliffe's speech in Rumping v. Director of Public Prosecutions⁵⁰:

50 [1964] A.C. 814, 839.

"... the court's concern was that no marriage relation, while it subsisted, should be infected by the fear or suspicion that things said only by reason of the special confidence of that relation might later become ..."

- and I substitute for the words "... the material of legal evidence affecting the speaker" the word "disclosed."

It is not in my view just that adultery should have retrospective operation on a marriage and not only break the marriage for the future but nullify it for the past. The plaintiff's adultery, repugnant though it be, should not in my view license the husband to broadcast unchecked the most intimate confidences of earlier and happier days.

It is in my view established by Ashburton v. Pape,⁵¹ in accordance with the references already made to Prince Albert v. Strange,⁵² that an injunction may be granted to restrain the publication of confidential information not only by the person who was a party to the confidence but by other persons into whose possession that information has improperly come. Part of the headnote reads⁵³:

"P was a bankrupt and his discharge was opposed by, amongst others, the plaintiff. P obtained by a trick letters which had been written by the plaintiff to his solicitor and were therefore privileged. P had these letters copied and proposed to use them in the bankruptcy proceedings as secondary evidence of the contents of the letters which, owing to privilege, he could not produce. The plaintiff brought an action for an injunction to restrain P from disclosing the letters or the copies, and Neville J. made an order restraining him from doing so except in the bankruptcy proceedings:- Held,that the fact that the copies, although improperly obtained, might be admissible as secondary evidence in the bankruptcy proceedings, was no answer to the action, and that the plaintiff was entitled to an absolute injunction without any exception."

Swinfen Eady L.J. stated⁵⁴

"The principle upon which the court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. Injunctions have been granted to give effectual relief, that is not only to restrain the disclosure of confidential information, but to prevent copies being made of any record of that information, and, if copies have already been made, to

51 [1913] 2 Ch. 469; 29 T.L.R. 623, C.A.

52 1 H. & T. 1.

53 [1913] 2 Ch. 469.

54 Ibid. 475.

restrain them from being further copied, and to restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it."

Cozens-Hardy M.R. said⁵⁵:

"... one passage from Lamb v. Evans,⁵⁶ in a judgment of Kay L.J., states briefly and, I think, with perfect accuracy what the true law is upon this subject. He says referring to Morison v. Moat⁵⁷: 'Then the judgment goes on to give several instances, and many of them are of cases where a man, being in the employment of another, has discovered the secrets of the manufacture of that other person, or has surreptitiously copied something which came under his hands while he was in the possession of that trust and confidence ...'"

Then he added⁵⁸:

"'... and anybody who has obtained that secret from him has also been restrained from using it.'"

I come now to the second injunction asked for which is to restrain communication or publication of information relating to the subject-matter of the Timpson action. The latter two-thirds of the third article publishes matter which was the subject of those proceedings. Any matter in that part of uhe article which may not have been the subject of those proceedings is so inextricably mixed up with what was, that no distinction was sought to be made between them before me; so all that part of the article stands or falls together.

The first ground on which this application by the plaintiff is based is an alleged agreement between the plaintiff and the Duke that in consideration of her agreeing to submit to an injunction, which she did, he would not disclose matters raised in that action. The injunction by consent was granted, not in open court, but in chambers. The plaintiff, in her affieavit, says of her husband:

"... he promised me faithfully that if I would consent to an injunction he would ensure that Mrs. Timpson and Ian Lorne ..."

- that was the other plaintiff to the action and the Duke's heir -

"would claim no damages, that I would never hear of the matter again. ..."

A little later she says:

55 [1913] 2 Ch. 469, 472.

56 [1893] 1 Ch. 218, 235; 9 T.L.R. 87, C.A.

57 (1851) 9 Hare 241.

58 [1893] 1 Ch. 218, 236.

"I therefore consented, and a permanent injunction was granted in chambers in August, 1959."

Her solicitor, Mr. Jobson, swore an affidavit in paragraph 3 of which he says:

"Accordingly the Duchess gave me firm instructions to submit to an injunction on her behalf. She told me that her husband had suggested that I should telephone him first, and I therefore did so. There is now produced and shown to me marked 'C.J.2.' a true copy of an attendance note which I dictated early the following morning after that telephone conversation and which accurately records what was said on both sides."

And that note concludes with the statement,

"... there was to be no information given to the Press if an injunction was granted. ..."

The Duke himself was given an account of this incident in his affidavit. He says:

"... before the proceedings were actually commenced I knew that it was the intention of Mrs. Timpson and the Marquess of Lorne to sue and I tried hard to persuade the plaintiff to submit to an injunction in order to bring the proceedings to an end and prevent the nature of the statements being made known to the public, because I realised that, no matter how clearly established it might be that the statements were utterly untrue, nevertheless any disclosure of them to the public could only do harm. It is not correct to say, as the plaintiff does, that I promised her faithfully that if she would consent to an injunction I would ensure that Mrs. Timpson and the Marquess of Lorne would claim no damages and the plaintiff would never hear of the matter again; all that I promised was that I would try my best to ensure that."

Thus, the Duke's only answer to the plaintiff's statement that if she would consent to an injunction he would ensure that she would never hear of the matter again was that he did not promise to do so but only to try his best to do so. Feeding "The People" with that matter is hardly trying his best to ensure that the plaintiff would never hear of it again.

During the hearing, however, it was suggested that the Duke's promise was not on his own behalf but as agent for the plaintiffs in the Timpson action. But it appears from the Duke's own affidavit, particularly when taken in conjunction with the nature of the subject-matter of the action, that he was himself anxious to bring the proceedings to an end, and certainly he had very good reason for being anxious to do so. Nor does the Duke's affidavit,

which I have quoted, appear to be consistent with his just acting as agent. Even if the Duke were now to qualify his affidavit so as to say that the promise was made not for himself but for the plaintiffs in the Timpson action, this would, at its highest in the Duke's favour, lead to no more than a conflict of evidence which could only be resolved at the trial, and would not, in my view, defeat the prima facie case established by the plaintiff on this issue.

The plaintiff's prima facie case is, however, further supported by the reflection that it would be a somewhat futile agreement for the plaintiff, if the Duke, who knew of the subject-matter of the action, would be free to disclose it; and all the more so as the submission by the plaintiff to an injunction was made in chambers and the parties to that action, including the plaintiff in this case, are bound not to disclose what happened there. In fact, in this case the prohibition on such disclosure was later expressly reinforced by the observations of Paull J. in open court. He said, to give his precise words:

"If I find that any statements are made or reports are published purporting to say what has happened before me in chambers I shall take steps to see that the matter is reported to the appropriate authorities for action. It is essential for the proper administration of justice that statements should not be broadcast with regard to matters heard in chambers. Such matters concern the parties only, and no one else."

It appears to me that the inherent probabilities of this situation so strongly support the plaintiff's evidence that, even if the Duke were to amend his affidavit so as to state that his promise was made as agent for the plaintiffs and not in his own behalf at all, I would on this issue, for the purposes of this motion, were it necessary, and were I driven so to do, accept the plaintiff's evidence rather than that of the Duke.

The defendants argued that no injunction should be granted on the ground that the information about the subject-matter of the action was obtainable elsewhere, for example from affidavits. It is not in evidence that the information was so obtained or is so obtainable; and it was maintained for the plaintiff that it could not be so obtained in this case. But, however that may be, what I am concerned with here is that it is the Duke in this case who, in fact, is supplying that information; and I am not to be beguiled from that fact by speculation as to other possible sources that may or may not be available for providing that same information.

Prima facie the Duke is supplying that information in breach of his agreement with the plaintiff.

The defendants then say that the plaintiff has herself referred to the Timpson case in an article which was published in the "Sunday Mirror" on June 16, 1963. But the nub of the non-disclosure, as I venture to think would be clear to anyone who knew of the subject-matter of the action, was the nature of the slander; and that was not alluded to at all by the plaintiff. Even if the plaintiff should not have referred to the Timpson action as she did, this should not, in my view, prevent the prohibition of the incomparably more serious disclosure of the subject-matter of the action.

My conclusion, therefore, is that the injunction asked for with respect to this action should be granted.

For the application for this injunction the plaintiff also submitted that the publication was in contempt of court as being of matters heard in chambers whose secrecy was emphasised by Paull J.'s statement which I have read. But in view of my conclusions on the alleged agreement between the plaintiff and the Duke, I find it unnecessary to examine this submission and the arguments in opposition to it.

I come now to the application for the injunction, which raises the second important point of law in this case, namely, whether a party to divorce proceedings is entitled to apply to the court to enforce the Judicial Proceedings (Regulation of Reports) Act, 1926, which prohibits publication about those proceedings. It would be convenient to take the last three injunctions applied for together to some extent, namely, the injunctions to restrain publication of the subject-matter of the cross-petition for divorce in Scotland, or of the Wigham action or of any particulars of the Duke's divorce petition other than those authorised by the Act of 1926.

The cross-petition and the Wigham action go together, to some extent, because the cross-petition included a reference to the subject-matter of the Wigham action, and the references in the articles to the Wigham action are in such form as to be dependent on the references to the cross-petition in the only passage in the articles to which they are relevant. Thus, if the reference to the cross-petition should be restrained, then so should the references to the Wigham action which are bound up with them. The objection to the communication or publication of the subject-matter of the cross-petition is based on the Act of 1926 (as is the objection to the publication of particulars of the Duke's divorce

petition) and of the subject-matter of the Wigham action on an undertaking by the parties to the court in that action not to make any statement or comment about the matters in dispute to anybody.

The cross-petition was abandoned and I was informed - and I understand it to be common ground - that no evidence was given in support of it.

So I turn to the Judicial Proceedings (Regulation of Reports) Act, 1926. It is a very short Act and I would read it so far as it is relevant. Section 1 reads:

"(1) It shall not be lawful to print or publish, or cause or procure to be printed or published - (a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals; (b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, any particulars other than the following, that is to say:- (i) the names, addresses and occupations of the parties and witnesses; (ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given; (iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment: Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection. (2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding £500, or to both such imprisonment and fine: Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act. (3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General."

It is, therefore, clear from section 1 (b) (i) and (ii) that, as no evidence was given in support of the cross-petition, it is not lawful to print or publish or cause or procure to be printed or published any particulars of the cross-petition other thaf the names, addresses and occupations of the parties. In particular, it is not lawful to publish the charges in the cross-petition which, as I have said, include the subject-matter of the Wigham action. The relevant passage in article 6 written by the Duke does specify this charge

in the cross-petition and therefore under the Act its publication is not lawful.

The passages on which the application for the last injunction against publication of particulars of the Duke's divorce petition are based appear in the Duke's sixth article and give details of certain photographs and of the contents of certain letters which were given in evidence on the hearing of the Duke's divorce proceedings, and it appears from the article itself that they relate to these divorce proceedings. Such publication of evidence is, in my view, clearly not lawful under section 1 (1) (b) of the Act of 1926, except in so far as it is contained in - and I quote from the Act - "... the judgment of the court and observations made by the judge in giving judgment." There is in these passages in the article certain evidence which was included in Lord Wheatley's judgment, and that would, of course, have to be excluded from any injunction granted.

But it is then submitted for the defendants that, even though the Act makes the publication not lawful, yet the plaintiff has no status for seeking to prevent publication. This submission is made on the ground that the Act makes the unlawful action an offence. It is argued that a prosecution is the only remedy for contravention of the Act and that an individual injured or threatened with injury by unlawful publication has no remedy under the Act irrespective, of course, of how damaging it might be to him.

The law on this question was reviewed by the Court of Appeal in Solomons v. R. Gertzenstein Ltd.⁵⁹ Although the review was obiter and there was a difference of opinion on the application of the relevant legal principles to the statutes under consideration in that case, yet the views of all three Lords Justices were in accord on what those legal principles were, and it is only for the purpose of ascertaining those principles that I turn to that case.

Somervell L.J. said⁶⁰:

"The final question is whether an offence under the statute confers a civil right of action for damages on a person who suffers, as did the plaintiff here, by the commission of the offence."

Then a little later he continued⁶⁰:

"There have been Acts which expressly confer a right of action for a penalty or damages on a person aggrieved by its breach. There have been Acts which impose a duty without any sanction. We are concerned with neither of them but

59 [1954] 2 Q.B. 243; [1954] 3 W.L.R. 317; [1954] 2 All E.R. 625, C.A.

60 [1954] 2 Q.B. 243, 253.

with Acts which (1) contain provisions which protect members of the public or some members in certain circumstances, (2) contain their own sanction by penalties or otherwise for the enforcement of these provisions. The courts have held that under the common law a person aggrieved by a breach of certain of such Acts has a right to sue for damages, although the Act itself provides only for a criminal sanction."

Later Somervell L.J. quoted⁶¹ the following observation of Atkin L.J. in Phillips v. Britannia Hygienic Laundry Co. Ltd.⁶²:

"'Therefore the question is whether these regulations, viewed in the circumstances in which they were made and to which they relate, were intended to impose a duty which is a public duty only or whether they were intended, in addition to the public duty, to impose a duty enforceable by an individual aggrieved.'"

And Somervell L.J. observed⁶³:

"I think this is the only approach which the decisions justify."

He added⁶⁴:

"I hope that these citations are sufficient to establish that there is no rule of thumb formula and one must, as Atkin L.J. said, consider the Act."

Birkett L.J. quoted⁶⁵ this passage from the judgment of A. L. Smith L.J. in Grovts v. Wimborne (Lord)⁶⁶:

"'In dealing with the question whether this was the intention of the legislature, it is material, as Kelly C.B. pointed out in giving judgment in the case of Gorris v. Scott,⁶⁷ to consider for whose benefit the Act was passed, whether it was passed in the interests of the public at large or in those of a particular class of persons. The Act now in question, as I have said, was clearly passed in favour of workers employed in factories and workshops, and to compel their employers to perform statutory duties for their protection and benefit.'"

And then Birkett L.J. continued⁶⁸:

"Vaughan Williams L.J. said in the same case⁶⁹: 'In each case one must look at the whole of the statute, and gather from all its provisions the answer to the question whether that was the intention.' That is, that the remedy provided by the statute should be the only remedy."

61 [1954] 2 Q.B. 243, 253.

62 [1923] 2 K.B. 832, 842; 39 T.L.R. 530.

63 [1954] 2 Q.B. 243, 255.

64 Ibid. 256.

65 Ibid. 261.

66 [1898] 2 Q.B. 402, 417.

67 (1874) L.R. 9 Ex. 125.

68 [1954] 2 Q.B. 243, 261.

69 [1898] 2 Q.B. 402, 417.

Romer L.J. said⁷⁰

"There is nothing inconsistent, however, in including in legislation which is generally designed to regulate in various ways the lives of a vast community provision for the safety and protection of individuals";

and later⁷¹:

"It is a matter of general sorrow to hear of persons who have been trapped in a burning house without any means of escape; but it is death to the victims themselves. I emphasise this point because it appears to me to be of cardinal importance, in considering whether a civil suit lies for breach of a statutory duty, to see whether, on a broad view, that duty has been imposed for the general welfare on the one hand or in the interests of individuals or of a defined or definable class of the public on the other."

In accordance with these observations it seems to me that the question, therefore, is whether the Act on its true construction, in the light of the surrounding circumstances, was intended only for the protection of the public at large or also for the benefit of a class of persons. If it was also for the benefit of a class, then any member of that class is entitled to bring not criminal proceedings for the public offence but civil proceedings in respect of injury to himself.

Under the Act of 1926 a person injured can have no share in the penalty - a factor which Romer L.J. apparently considered told against his having no right of action. Nor can any prosecution under it be brought without the sanction of the Attorney-General but it seems to me that this might be relied on on the one hand as a factor tending to indicate that persons injured were to have a remedy otherwise than by criminal proceedings, and on the other hand as a factor tending to indicate that there was to be no remedy except with the sanction of the Attorney-General. Although persons other than "a proprietor, editor, master printer or publisher" may "print or publish or cause or procure to be printed or published" and so do what section 1 makes unlawful, yet it is only such persons that are liable to be convicted under the Act. There is thus, in the case of unlawful action by other persons no remedy under the Act for what the Act itself makes unlawful, unless there is remedy by civil proceedings; and this suggests that such a remedy is intended.

But the decisive consideration to my mind is to be found in an analysis of section 1 of the Act. Section 1 (1) (a) makes unlawful

70 [1954] 2 Q.B. 243, 264.

71 Ibid. 265.

the publication in relation to any judicial proceedings (including, therefore, proceedings mentioned in paragraph (b), which may conveniently be referred to as Divorce Court proceedings) any indecent matter the publication of which would be calculated to injure public morals. Paragraph (b) of subsection (1) is, however, limited to Divorce Court proceedings and forbids the publication of any particulars other than those expressly specified in the subsection and subject to the proviso which ensures that nothing so expressly specified permits the publication of anything contrary to paragraph (a), that is, indecent matter calculated to injure public morals. Thus paragraph (a) and the proviso to paragraph (b) make unlawful in relation to any judicial proceedings, including Divorce Court proceedings, the publication of any indecent matter calculated to injure public morals. But what the rest of paragraph (b) does is to forbid the publication of any particulars in relation to Divorce Court proceedings (other than the expressly specified particulars) even though they are not indecent matter calculated to injure public morals. The protection afforded by paragraph (b) cannot, therefore, in my view, be directed to protect public morals despite the long title of the Act, namely "An Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals": and the protection of public morals was the only purpose upon which the defendants relied to suggest that the Act was for the protection of the public only.

That paragraph (b) does, in fact, protect those taking part in Divorce Court Proceedings is palpably obvious and was the subject of observation by Willmer L.J. in Windeatt v. Windeatt.⁷² The protection afforded to them, over and above the protection of public morals emphasised in paragraph (a) and the proviso in paragraph (b) is doubtless to be ascribed to the way in which, in Divorce Courts in particular, reputations were apt to be disproportionately and, perhaps, quite unjustifiably besmirched and, even more, innocent persons were apt to have their most intimate relationships publicly exposed. Even children might suffer cruelly from their parents' divorce proceedings without there being an injury at all to public morals. Such suffering can, of course, occur in other courts but it is notorious that it was in Divorce Court proceedings that such suffering was most widespread. And our legislature like our common law and, indeed, our people in general, is apt to apply its remedy, not generally in accordance with any general principle, but pragmatically to the particular difficulty that clamours for treatment.

72 [1962] 1 W.L.R. 527, 532; [1962] 1 All E.R. 776.

It thus seems to me that the protection which the Act provided in Divorce Court proceedings, at any rate - and it is only with such proceedings that we are here concerned - was not limited to the protection of public morals but was wider in its scope and purpose and, in my view, included the protection, in the words of Willmer L.J. in Windeatt v. Windeatt⁷³ to which I have alluded of "any person named in a matrimonial suit."

It is further submitted for the defendants that an injunction woule not be granted to restrain a criminal act such as unlawful publication contrary to the Act of 1926 unless it involves injury to property. Passages in Halsbury's Laws of England, 3rd ed., Vol. 21 (1957), p. 347, were referred to in support of this proposition. The cases cited by counsel, namely Springhead Spinning Co. v. Riley,⁷⁴ Attorney-General v. Sheffield Gas Consumers,⁷⁵ and Stevens v. Chown⁷⁶ were all cases where the injury was to property. The contrast there was between a mere criminal act and a criminal act involving an injury to property. In the case of a mere criminal act an injunction would not issue, but if the criminal act involved an injury to property an injunction would be based on the threatened injury to property independently of the crime. The judges directed their observations to the facts before them - all injury to property cases - and so expressed themselves in terms of such injury.

In Gee v. Pritchard⁷⁷ Lord Eldon L.C. said of his equity jurisdiction⁷⁸: ".... I have no jurisdiction to prevent the commission of crimes; excepting, of course, such cases as belong to the protection of infants ..." A little later, when no question of crime was being considered, he said⁷⁹ that the material question was whether the facts upon which the court's intervention was sought were "... facts of which the court can take notice, as a case of civil property, which it is bound to protect."

Lord Campbell L.C., in Emperor of Austria v. Day,⁸⁰ appeared to treat this last quotation from Lord Eldon L.C. as indicating that a case of injury to property was an exception to the refusal of the Court of Chancery to restrain the commission of a crime.

Mallins V.-C. in Springhead Spinning Co. v. Riley⁸¹ treats the last passage quoted from Lord Eldon L.C. as saying that the question is whether the facts are such that "... the court can take notice of as a case of civil rights which it is bound to protect."

73 [1962] 1 W.L.R. 527, 532.

74 (1868) L.R. 6 Eq. 551.

75 (1853) 3 De G.M. & G. 304.

76 [1901] 1 Ch. 894; 17 T.L.R. 313.

77 (1818) 2 Swan. 402.

78 Ibid. 413.

79 Ibid.

80 (1861) 3 De G.F. & J. 217, 239.

81 (1868) L.R. 6 Eq. 551, 560.

These quotations are hardly reconcilable unless intended as no more than particular illustrations or applications of the principle that the old Court of Chancery would not grant an injunction unless there was a ground which it recognised as giving jurisdiction - whether the protection of infants, or of property or of civil rights, which it was bound to protect.

Injury to property can be far less serious than other forms of injury such as, for example, injury to reputation, and I see no rational ground whatsoever for distinguishing between injury to property and other forms of injury, nor was any suggested. In my opinion such a distinction is not the purport and effect of the cases cited, and even if such a rule could be disinterred from ancient authorities, yet I would not myself consider it incapable of rational and sensible development to correspond with the different needs and values in a different age.

Thus, in my view, the defendants' submissions that an injunction will not be granted to restrain a criminal act, unless it involves an injury to property, fails.

Junior counsel for the defendants, in exercising the right to comment on a case which had been referred to in the plaintiff's counsel's speech in reply, suggested that an injunction would only lie if the unlawful publication in contravention of statute amounted to a tort for which an action at law would lie; although this case had proceeded and had been fully argued on the footing that there was no such requirement.

Section 45 of the Supreme Court of Judicature (Consolidation) Act, 1925, re-enacting section 25 (8) of the Judicature Act, 1873, provides so far as material, "(1) The High Court may grant .. an injunction ... by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do." The effect of these enactments is that since the Judicature Act of 1873, as stated by Cotton L.J. in North London Railway Company v. Great Northern Railway Company⁸²:

"... where there is a legal right which was, independently of the Act, capable of being enforced either at law or in equity ..."

- I emphasise those words -

"... then, whatever may have been the previous practice, the High Court may interfere by injunction in protection of that right."

82 (1883) 11 Q.B.D. 30, 39, 40.

It appears from Stevens v. Chown,⁸³ a decision of Farwell J., that the right which might be so protected could be a new right created by statute and need not be a right for which an action at law would lie provided it was a right that the Court of Chancery would take cognizance of. And in Pollard v. Photographic Company⁸⁴ North J. said⁸⁵:

"But the counsel for the defendant did not hesitate to contend boldly that no injunction could be granted in a case where there could be no injury to property in respect of which damages could be recovered in an action at law."

Later he said⁸⁶:

"The right to grant an injunction does not depend in any way on the existence of property as alleged; nor is it worthwhile to consider carefully the grounds upon which the old Court of Chancery used to interfere by injunction. But it is quite clear that, independently of any question as to the right at law the Court of Chancery always had an original and independent jurisdiction to prevent what that court considered and treated as a wrong, whether arising from a violation of an unquestionable right or from breach of contract or confidence, as was pointed out by Lord Cottenham in Prince Albert v. Strange.⁸⁷

There are thus clearly formidable considerations against the suggestion that the plaintiff cannot obtain relief by injunction unless the publication constitutes a tort against her. But these were cases dealing not with interlocutory injunctions but with final injunctions and it was the practice of the Court of Chancery to exercise a jurisdiction, which was not limited to the considerations governing final injunctions, for the purpose of granting interlocutory injunctions pending the trial of a legal right. This jurisdiction was considered by Chitty J. in Hayward v. East London Waterworks Co.,⁸⁸ where he indicated conveniently the nature of the action. He said⁸⁹:

"The defendants threaten to cut off the supply [i.e., of water] to the plaintiff's houses unless the full amount claimed by them for the rate in advance up to Christmas is forthwith paid."

And in his opening remark he said⁹⁰:

"A bona fide dispute has arisen and still subsists between the plaintiff and the defendant company as to the basis on which the rate ought to be calculated."

83 [1901] 1 Ch. 894, 904, 905.

84 (1889) 40 Ch.D. 345.

85 Ibid. 353.

86 Ibid. 354.

87 1 H.& T. 1.

88 (1884) 28 Ch.D. 138.

89 Ibid. 145.

90 Ibid.

Then he dealt with the jurisdiction⁹¹:

"In these circumstances the question is whether the plaintiff is entitled to an injunction to restrain the defendants from cutting off the water. The writ asked for an injunction without limit of time. But the only injunction that could be granted in the existing circumstances would be up to Christmas. It was argued by the company that the plaintiff's right to the supply of water was a statutory right, and that the only remedies open to the plaintiff were those given by the statutes which conferred the right, and that the statutes conferred a special remedy by penalty payable to the person aggrieved when the water was cut off. As at present advised, I should, if it were necessary to decide the question, decline to adopt this argument. I see no reason why the court should refuse to protect a right by injunction merely because it is a statutory right. In Cooper v. Whittingham⁹² Sir George Jessel held, that the ancillary remedy by injunction ought to be granted, although the statute had created a new offence and imposed a penalty, and in his judgment he referred to the Judicature Act, 1873, section 25 (8), enabling the court to grant an injunction in all cases in which it shall appear to be just or convenient, and stated his opinion to be that this enactment might be said to be a general supplement to all Acts of Parliament. Sir George Jessel gave a wider interpretation to the enactment than has since been adopted by the Court of Appeal. But the Court of Appeal did not in North London Railway Company v. Great Northern Railway Company⁹³ overrule the decision in Cooper v. Whittingham,⁹⁴ or lay down any principle inconsistent with that upon which the case was decided. Before the passing of the statutes conferring on the Court of Chancery jurisdiction to determine questions of legal right, it was the constant practice of the Chancery Court to intervene by injunction in proper cases for the protection of the plaintiff in equity pending the trial of the legal right and until that right could be determined at law. But the intervention was temporary and the court required that proceedings should be taken to obtain the decision at law. It seems to me that the principle involved in that practice would apply to the present case. It was argued for the defendants that the damage to the plaintiff by cutting off the water would not be irreparable. But I am satisfied that the argument by itself could not prevail. The supply of water to the inhabitants of London now depends almost entirely on the water companies, and in the present case there are no less than 150 persons dwelling in the plaintiff's houses. I should have no hesitation in saying that the cutting off the supply of water for domestic purposes would be damage of that grievous nature that would have fallen within the principle of the decisions of

91 28 Ch.D. 138, 146.

92 (1880) 15 Ch.D. 501.

93 11 Q.B.D. 30.

94 15 Ch.D. 501.

the Court of Chancery as to irreparable damage before the passing of the Judicature Act, and that, at all events, it would fall within the Judicature Act, 1873, section 25 (8)."

In this case, as in that, there is a dispute as to a statutory right and in addition irreparable injury to the plaintiff before trial if an interlocutory injunction is not granted. Thus, in my opinion, the jurisdiction which I am asked to exercise on this motion is a jurisdiction which the old Court of Chancery had, with the result that this submission for the defendants fails. Nor, even if I were not to come to this conclusion, would it in my view be proper to consider that such a disputable suggestion thus made at the last moment and without full argument should defeat the plaintiff's prima facie case for an interlocutory injunction particularly when, to refuse the injunction would allow publication which would be irrevocable and substantially defeat the whole purpose of the action.

My conclusion, therefore, is that the plaintiff is entitled to injunctions substantially as asked in respect of the cross-petition and the divorce proceedings, and, as I have already indicated, the injunction in respect of the cross-petition will similarly apply to the reference to the Wigham action which is bound up with the reference to the cross-petition in the relevant passage in the Duke's articles.

I come now to the plaintiff's further submission that publication of the subject matter of the Wigham action would be of information comprised in the undertaking given in the settlement of that action and should be restrained by injunction. The statement made by counsel for the plaintiff in open court was, so far as material, as follows:

"Agreed terms of settlement are embodied in a Tomlin order, and I need only tell your Lordship that the plaintiff's claims for conspiracy, malicious prosecution and injurious falsehood are to be dismissed, and that Margaret Duchess of Argyll is to pay to the plaintiff a sum of £25,000 in respect of the libels complained of as well as the plaintiff's costs of the action. I would therefore ask your Lordship now to make the agreed order in the form which has been placed before you. I would add that all parties are undertaking that, so as to avoid any further publicity about this dispute, none of them will make any statement or comment hereafter about it to anyone."

It is clear and accepted that the undertaking which was given by the parties in that case was an undertaking which was given to the court and the breach of the undertaking would therefore be a contempt of court, so that a fortiori, in my view, would the

disclosure of confidential information which was the subject of such an undertaking not to disclose, be restrained.

In this case the subject matter of the Wigham action is confidential information subject to the undertaking and it has apparently never been published or communicated to any person other than the parties to the action and their representatives, subject only to the qualification that the Duke has possession of that information. That possession is not explained by him, although it is a matter peculiarly within his knowledge and he has had the opportunity of doing so. Nor has it been explained by anyone else. Nor do I appreciate how the Duke would be more likely to obtain the information than from a party to the action in breach of the undertaking. In these circumstances, so far as it may be relevant and necessary for the present purposes, I would conclude that on the evidence as it at present stands, that it was prima facie so obtained. The result, therefore, is that in my view the plaintiff has also established this ground for her application for an injunction in respect of the subject matter of the Wigham action.

The overall result of this motion therefore is that last Friday I granted the injunctions claimed subject to any modification today as to their precise form, and I then in the case of each injunction indicated - and I need not now repeat - the passages in the Duke's articles which I considered required that those injunctions should be granted.

Solicitors: Radcliffes & Co.; Simmons & Simmons.