Ag Of Uk V. Heinemann Publishers Notes

Attorney General of UK v. Heinemann Publishers

Facts

The appellant alleged that Mr Wright, in writing Spycatcher, had drawn substantially on confidential knowledge and information acquired by him whilst he was an officer of the British Security Service. This allegation seems not to have been disputed by the respondents. The appellant claimed that he was entitled to the relief sought on the footing that the proposed publication of Spycatcher amounted to a breach of fiduciary duty, a breach of the equitable duty of confidence or, alternatively, a breach of a contractual obligation of confidence on Mr Wright's part, the alleged breach in each instance being of a duty or obligation owed by Mr Wright to the United Kingdom Government.

Breach of fiduciary duty: The appellant's case, to the extent to which it rests on breach of fiduciary duty, is that, by reason of the trust, faith and confidence reposed in Mr Wright, he became subject to and bound by a fiduciary duty not, without authority, to disclose or use any information obtained by him in the course of his service otherwise than for the purposes of the Crown.

Breach of duty of Confidence: The appellant submits that the mere making of an unauthorized publication by an officer or former officer of the Security Service will cause detriment to the United Kingdom Government, irrespective of the content of what is published, in addition to any detriment arising from disclosure of the content itself. This proposition is based on the assertion that an unauthorized publication will disclose or authenticate the fact that the person disclosing is or was a member of the Security Service. The proposition is also based on the assertion that unauthorized publication will cause friendly security agencies to lose confidence in the Service and be less willing to make confidential information available.

Appellant’s case based crucially on the relationship between UK and the defendant: The legal and equitable basis of the appellant's case for relief is expressed in these three ways. However, they all take as their foundation the peculiar relationship between the United Kingdom Government and Mr Wright as an officer of the British Security Service, being a security service engaged in counter-espionage activities. Although the obligation sought to be enforced is personal to Mr Wright, it lies at the core of the relationship that subsists between the United Kingdom Government and the officers of its Security Service, the obligation and its enforcement seemingly being of critical importance to the efficient working of the Security Service having regard to the extraordinary and covert nature of its operations.

Holding

Meaning of “other public laws” – Governmental interests

The expression "public laws" has no accepted meaning in our law. Nevertheless Dr Mann, at p 607 in the article to which we have just referred, appears to equate "public laws" and "public rights", an expression which he treats as synonymous with "prerogative rights". The transition from "laws" to "rights" sits somewhat uncomfortably with the long-standing formulation of the rule in its application to "penal laws". It would be more apt to refer to "public interests" or, even better, "governmental interests" to signify that the rule applies to claims enforcing the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government.

Risk of Embarrassment/Prejudice Foreign Relations

True it is that there are some claims to enforce a foreign state's governmental interests that will not involve the risks mentioned by Learned Hand J. and Kingsmill Moore J. But there are some claims in which the very subject-matter of the claims and the issues which they are likely to generate present a risk of embarrassment to the court and of prejudice to the relationship between its sovereign and the foreign sovereign. These risks are particularly acute when the claim which the foreign state seeks to enforce outside its territory is a claim arising out of acts of that state in the exercise of powers...

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