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Attorney General V. Blake Notes

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ATTORNEY GENERAL V. BLAKE FACTS The defendant was a former member of the Secret Intelligence Service ("SIS") who in 1944 signed an undertaking not to divulge any official information gained as a result of his employment. Between 1951 and 1960 he disclosed valuable secret information to the Soviet Union. In 1961 he was convicted of spying and sentenced to 42 years' imprisonment, but in 1966 he escaped and went to live in Moscow, where he remained. In 1989 he wrote an autobiography, substantial parts of which were based on information he had acquired in the course of his duties as an SIS officer. By section 1(1) of the Official Secrets Act 1989 it was an offence for a person who had been a member of the intelligence services without lawful authority to disclose any information relating to intelligence which was in his possession by virtue of his position as a member of those services. The defendant entered into a publishing contract with a publisher under which he was to receive an advance of PS50,000, a further PS50,000 on delivery of the final manuscript and PS50,000 on publication. After he had already received some PS60,000 from the publisher, the Attorney General brought a private law action against the defendant claiming damages for breach of fiduciary duty and payment of all moneys received and to be received by him from the publisher, on the ground that the defendant owed the Crown a fiduciary duty not to use his position as a former member of the SIS or make use of secret or confidential information received during his service so as to generate a profit for himself. The trial judge had found that Blake owed no fiduciary duty to the Crown since the content that was published in his book no longer remained confidential. Pursuant to this, Attorney general sought to amend the claim and in appeal breach of contract was argued - this was based on the undertaking given by Blake in 1991 that he would not divulge any information he received in his capacity as an intelligence officer. HOLDING The law is now sufficiently mature to recognise a restitutionary claim for profits made from a breach of contract in appropriate situations. These include cases of "skimped" performance, and cases where the defendant obtained his profit by doing "the very thing" he contracted not to do. The present case fell into the latter category: Blake earned his profit by doing the very thing he had promised not to do. Most writers have favoured the view that in some circumstances the innocent party to a breach of contract should be able to compel

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