1. See British Steel Corporation v Granada Television Ltd [1980] 3 WLR 774.

2. See Norwich Pharmacal Ltd v Commissioners of Customs and Excise [1974] AC 133; Loose v Williamson [1978] 3 All ER 89; and see further Bankers Trust v Shapira [1980] 3 All ER 353.

3. Tapper (1972) 35 MLR 83; Heydon (1974) 37 MLR 601.

4. Ramsbotham v Senior (1869) LR 8 Eq 575.

5. Marks v Beyfus (1890) 25 QBD 494; D v NSPCC [1978] AC 171; R v Greenwich Juvenile Court, ex parte Greenwich London Borough Council (1977) 76 LGR 87. The problem of the journalist here is that he does not enforce the law, unlike the police, the NSPCC, local authorities, and so on. The informer is protected if he takes his false information to the enforcement agency. It is more difficult to see why he should be protected if he goes to the journalist, who has no duty to enforce the law beyond that of any private citizen, and whose interest lies indeed in selling the information to other private citizens as ‘news’.

6. Journalists: Granada case, supra. (But cf. in the Court of Appeal. [1981] 3 WLR 774 at 797). Priests: Normanshaw v Normanshaw (1893) 69 LT 468. Cf R v Hav (1860) 2 F&F 4, 175 ER 933. In Ireland the public interest is recognised, and it is the priest who has the power to waive: Cook v Caroll [1945] IR 515. Doctors: Duchess of Kingston's case (1776) 20 St Tr 355; Hunter v Mann [1974] 2 All ER 414. Lawyers: Wheeler v Le Merchant (1881) 17 Ch D 675; Waugh v British Railways Board [1979] 2 All ER 1169.

7. Prince Albert v Strange (1849) 1 Mac & G 25, 41 ER 1171; Coco v A N Clark Ltd [1969] RPC 41.

8. See note 3, supra.

9. Evidence (5th edn., 1979), pp. 291–3.

10. See note 7, supra.

11. 41 ER 1171 at 1174, line 60 to 1175 line 1.

12. Ibid., 1178 lines 47–9, 1179 lines 6–9.

13. Morison v Moat (1851) 9 Hare 241, 68 ER 492 at 501 line 59 to 502 line 1. But cf. Lloyd-Jacob J in stevenson Jordan and Harrison Ltd v MacDonald and Evans (1951) 68 RPC 190 at 195, and Evershed MR on appeal in 69 RPC 10 at 16. No doubt the Law Commission's forthcoming report on breach of confidence will have something to recommend to tidy up points like this.

14. Gartside v Outram (1856) 26 LJ Ch 113; Initial Services Ltd v Putterill [1968] 1 Qb 396; Fraser v Evans [1969] 1 QB 349. Whether this exception is restricted to ‘wrongdoing’ in a legal sense is unclear. In the last case cited Lord Denning MR used the much wider test of ‘just cause or excuse for breaking confidence’, and this was accepted, obiter, by Sir Robert Megarry V-C, in Malone v Commissioner of Police of the Metropolis (No. 2) [1979] 2 All ER 620 at 634h - 635c, who suggested the example of confidential information relating to ‘some apprehension of an impending chemical or other disaster, arising without misconduct, of which the authorities are not aware, but which ought in the public interest to be disclosed to them’. But cf. e g Weld-Blundell v Stephens [1919] 1 KB 520 at 535, per Warrington LJ. Again, this is something the Law Commission can be expected to discuss in their forthcoming report on breach of confidence, and perhaps recommend a definition of ‘iniquity’ to be enacted.

15. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215 lines 10–11, per Lord Greene MR.

16. In the context of the Granada case, see the article by Professor Ronald Dworkin in The Sunday Times of 10 August 1980. The present writer is informed that leading counsel for Granada advised against the use of this argument in that case.

17. [1969] RPC 41 at 47–8.

18. Ibid. 47 lines 48–9.

19. Ibid. 48 lines 26–7.

20. A bernethy v Hutchinson (1825) 3 LJ Ch 209, 213, 219; IH & Tw an, 47 ER 131n.

21. Prince Albert v Strange, note 7, above.

22. Tipping v Clarke (1843)2 Hare 383, 67 ER 157. Cf. Woodward v Hutchins [1977]2 All ER 751 and Khashoggi v Smith [1980] LS Gaz 130, 130 NU 168.

23. Morison v Moat, note 13, above.

24. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd, note 15, above.

25. Argyll v Argyll [1967] Ch 302; but see Lennon v News Group Ltd [1978] FSR 573 for a case where the parties had courted publicity and thus made their lifestyles a public matter, so an injunction was refused.

26. As to civil contempt, see Yianni v Yianni [1966] 1 WLR 120.

27. Re Enoch and Zaretsky, Bock and Co's Arbitration [1910] 1 KB 327, followed in Fallon v Calved [1960] 2 QB 201.

28. See per Goff J in Butler v Board of Trade [1971] Ch 680 at 690H-691AB.

29. Cf. Weld-Blundell v Stephens [1919] 1 KB 520 at 527 lines 24–34, per Bankes LJ.

30. (1821) Jac 77, 37 ER 779.

31. The terms of the motion asked for him to ‘be restrained from disclosing (by the giving of evidence in judicial proceedings or otherwise) any facts’, etc. thus anticipating Butler v Board of Trade, infra, by 150 years.

32. Ibid 780 lines 13, 18.

33. Ibid lines 38 – 45 (emphasis supplied).

34. Ibid lines 26-9, 781 lines 2831.

35. E g Lewis v Smith (1849) 1 Mac & G 417, 41 ER 1326, where the judge was Lord Cottenham, who as Christopher Pepys had been counsel on the winning side in Beer v Ward.

36. [1898] 1 QB 759.

37. (1842) 10 M & W 478, 152 ER 558.

38. [1898] 1 QB 759 at 764 lines 13 – 14, per Sir Nathaniel Lindley MR.

39. A. Conan Doyle Silver Blaze (from The Memoirs of Sherlock Holmes).

40. It is only fair to say that the doctrine was not argued as such. But Cripps QC, for the unsuccessful plaintiff, did say this (at 761 lines 10 – 13):

‘If it is open to any party who has wrongfully come into possession of a privileged document to give secondary evidence of its contents, the privilege, though still existing, may be defeated in every case’.

It would be odd if, having been warned of the possible consequences of their decision, the court should have omitted to point to an obvious and simple solution which would effectively have prevented the defeat of the privilege, thus robbing counsel's argument of its force. If Cozens-Hardy QC mentioned the doctrine of breach of confidence in his reply to Cripps’ argument, the reporter did not think this worthy of note, for Cozens-Hardy merely ‘replied’ (761 line 14).

41. [1913] 2 Ch 469, 109 LT 381, 82 U Ch 527.

42. [1913] 2 Ch 469 at 472 lines 9–11. The injunction went on:‘…and subject to the direction of the Bankruptcy Court’ which suggests that the learned judge was advertising to a possible clash of jurisdiction between the two courts, and that he thought that without these words the Bankruptcy Court would be unable to direct such evidence to be given as it should consider relevant. As to why he should have thought this there is no clue. Beer v Ward was not cited. Lord Ashburton's own counsel, Jenkins KC, seems to have accepted that the Bankruptcy Court would in the end receive the evidence under Calcraft v Guest, confidence or no confidence. He said (at 471 lines 17 – 20):

‘An injunction for that purpose [ie, restraining Pape] can be granted before the case comes on for trial, although at the hearing these copies might be admissible as secondary evidence’.

43. [1913] 2 Ch 469 at 472 lines 5 – 10.

44. Ibid. at 473 lines 10 – 13.

45. Ibid. lines 19 – 21.

46. Ibid. lines 21 – 5.

47. 35 MLR 83 at 86 lines 1 – 6.

48. This raises formidable problems of proving what was the source of a particular piece of information, and then asking whether information from that source was liable to restraint. In Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] QB 952 at 9583, Swan wick J said:

‘who is to tell…whether a question in cross-examination…is or is not founded on some information obtained from the [privileged] documents? The most that could be asked would be that no secondary evidence should be given of the contents of such documents’.

49. 109 LT 381 at 382 col. 2 lines 10 – 16.

50. 82 LJ Ch 527 at 529 col. 2 lines 45 – 52.

51. The phrase ‘there is no ground whatever in principle why we should decline to give Lord Ashburton that which in my view is his right,’ just does not follow from ‘if Mr Pape has the good luck to obtain a copy…’ whereas the structure of the sentence demands that the one should follow from the other. The Law Journal report is at least grammatically possible.

52. [1913] 2 Ch 469 at 474 lines 16 – 24.

53. Ibid. 476 lines 23 – 25, 477 lines 8 – 12.

54. Mellor v Thompson (1885) 31 ChD 55: and see Amber Size and Chemical Co v Menzel [1913] 2 Ch 239 and 247–8.

55. In the recent case of Bankers Trust v Shapira [1980] 3 All ER 353, for instance, the Court of Appeal ordered discovery of certain information clearly confidential as between banker and client, but stressed that this was necessary under the Norwich Pharmacal rule, and that the plaintiffs would have to undertake not to use or disclose the information other than in the legal proceedings. (This undertaking clearly follows from e g Riddick v Thames Board Mills Ltd [1977] QB 881.) See generally, on the relationship between breach of confidence and discovery, Nassé v SRC [1979] 3 All ER 673, and Distillers Ltd v Times Newspapers Ltd [1975] QB 513.

56. [1971] Ch 680.

57. Not an injunction, as Cross says, op. cit., p.293. No injunction lies against the Crown (Crown Proceedings Act 1947, s.21(1)(a)), and there can be no such thing as an interlocutory declaration (International General Electric Co of New York Ltd v Commissioners of Customs and Excise [1962] Ch 784), so a special case was heard under RSC Ord 33 r. 3 to test the right of the plaintiff to a (final) declaration that the Board of Trade were ‘not entitled…to publish, disclose, divulge, or otherwise make use of the contents of a letter…’ See further the discussion in R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1979]3 All ER 385 at 403 cd-f, 406h–407b, 413fg-414c, and [1980] 1 All ER 80 at 84g–85d, 89f-hj, 95d-96a, 105gh-106a.

58. [1971] Ch 680 at 689AB.

59. Beer v Ward, for example, was not cited.

60. Note 14, above.

61. [1971] Ch 680 at 685B-D.

62. Ibid. DE-E. 689 D-H.

63. Ibid. 685EF.

64. Ibid. 690G-H.

65. Ibid. 690H-691A.

66. See Cross, op. cit. at 293.

67. Ibid. 691AB-B, CD-D.

68. As to which see the authorities cited in note 54 above.

69. That is, the conflict which Lord Eldon LC refused to create for the defendant's solicitor in Beer v Ward.

70. [1977] QB 952.

71. Ibid. 955A.

72. Ibid. 985F.

73. There may of course be other considerations, such as the right to seize under colour of a warrant, as happened in this case.

74. [1977] QB 952 at 958H-959A.

75. Ibid.

76. Ibid. 965F.

77. 35 MLR 83 at 87 lines 5-7.

78. 37 MLR 601 at 604 line 33 to 605 line 4.

79. I am indebted to my colleague Ian Dennis for his suggestions and comments on an earlier draft, although responsibility for shortcomings is of course mine.