attorney general v blake judgement

| December 10, 2020

The Court of Appeal suggested that the Crown might have a private law claim to 'restitutionary damages for breach of contract', and invited submissions on this issue. By 1989 the information in the book was no longer confidential, nor was its disclosure damaging to the public interest. The Crown has no right to the royalty and does not now assert one. stated it was 'well known' that in trade mark and patent cases the plaintiff was entitled, if he succeeded in getting an injunction, to take either of two forms of relief: he might claim from the defendant either the damage he had sustained from the defendant's wrongful act or the profit made by the defendant from the defendant's wrongful act. A further substantial amount, in the region of £90,000, remains payable. In order to achieve this result the court 'imposed' a constructive trust on Snepp's profits. The power to give damages in lieu of an injunction imported the power to give an equivalent for what was lost by the refusal of an injunction: see Leeds Industrial Co-operative Society Ltd. v. Slack [1924] A.C. 851, 859, per Viscount Finlay L.C. They may not put themselves in a position where their duty and interest conflict. It is equally well established that an award of damages, assessed by reference to financial loss, is not always 'adequate' as a remedy for a breach of contract. However that may be, these awards cannot be regarded as conforming to the strictly compensatory measure of damage for the injured person's loss unless loss is given a strained and artificial meaning. The court's refusal to grant an injunction means that in practice the defendant is thereby permitted to perpetuate the wrongful state of affairs he has brought about. This applies to interference with property rights. It now accepts that its original claim that it has equitable or fiduciary or proprietary rights against Blake cannot be sustained. relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services . In these cases the courts have reached the desired result by straining existing concepts. For him a financially assessed measure of damages is inadequate. He is still there, a fugitive from justice. It is not a commercial claim in support of any commercial interest. Plainly, had Blake not been an infamous spy who had also dramatically escaped from prison, his autobiography would not have commanded payments of this order. 2. ` Lord Shaw prefaced this observation with a statement of general principle: 'wherever an abstraction or invasion of property has occurred, then, unless such abstraction or invasion were to be sanctioned by law, the law ought to yield a recompense under the category or principle . In other words it was a breach of contract - breach of a negative undertaking - liable to be restrained by injunction, ie specifically enforced. 408 and Jaggard v. Sawyer [1995] 1 WLR 269, both cases concerned with access to a newly-built house over another's land. This sentence reflected the extreme gravity of the harm brought about by his betrayal of secret information. 49; Webb v. Chief Constable of Merseyside Police [2000] All E.R. . In the course of his judgment Lord Woolf made some interesting observations, at [1998] Ch. The broad proposition that a wrongdoer should not be allowed to profit from his wrong has an obvious attraction. By submitting his manuscript for publication without first obtaining clearance Blake committed a breach of this undertaking. These rights give rise to restitutionary remedies including the remedy of account which, depending on the circumstances, could also derive from a common law relationship such as agency. Jun. But the court had the assistance of leading and junior counsel as amici curiae. But this analysis takes the matter now under discussion no further forward. It has attracted criticism from academic commentators and also in judgments of Sir Thomas Bingham M.R. I would allow the appeal and dismiss the cross-appeal. The court may make orders compelling the party who has committed a breach of contract, or is threatening to do so, to carry out his contractual obligations. It was not necessary that they had been frustrated entirely. Further, the circumstances in which an account of profits is available under the statutes vary. At the hearing of the appeal counsel for Blake addressed first the public law question whether the Court of Appeal had the power to grant the injunction before he dealt with the question whether a restitutionary remedy is available. Judgement for the case Attorney-General v Blake B was a former MI6 officer who published a book in breach of the Official Secrets Act, divulging state secrets and making a large profit from it. This is the source of the problems for the Crown in achieving its purpose in bringing these proceedings. In that ... leading judgment and Wallwork and Anderson JJ concurring – dealt with Blake -based submissions on their merits in deciding that an account of profits would not be awarded for breach of contract. This is a much discussed problem. . Attorney General v Blake and the use of restitutionary damages for contractual breach English courts seem to have adopted a similar view to Canada and the United States, prior to the case of Attorney General v Blake, and often forged some relationship (fictional or otherwise) of trust between the claimant and defendant, in order to justify an award of restitution within the domain of contracts. That was a patent infringement case. Lord Halsbury's dining-room chair is no different unless the error which I have identified is made. The answer given by my noble and learned friend does not reflect the essentially punitive nature of the claim and seeks to apply principles of law which are only appropriate where commercial or proprietary interests are involved. Please log in or sign up for a free trial to access this feature. Some of these subjects are now embodied in statutory codes. In Lever v. Goodwin (1887) 36 Ch. Attorney General v Blake . . The common law courts' jurisdiction to award damages was confined to loss or injury flowing from a cause of action which had accrued before the writ was issued. When, exceptionally, a just response to a breach of contract so requires, the court should be able to grant the discretionary remedy of requiring a defendant to account to the plaintiff for the benefits he has received from his breach of contract. Well first of all, other than ceremonial reasons and a slight salary increase, there is no real difference between the chief justice and the associate justices. Date of Delivery: 21.09.2016. The English case which highlights the thesis of this article is Attorney General v Blake. The main argument against the availability of an account of profits as a remedy for breach of contract is that the circumstances where this remedy may be granted will be uncertain. Lord Cairns' Act had a further effect. On the hearing of this appeal by your Lordships he was represented by counsel and solicitors acting pro bono. Cas. But this analysis takes the matter now under discussion no further forward. It established that in some circumstances, where ordinary remedies are inadequate, restitutionary damages may be awarded. In engaging with this issue, the court has had the assistance of strongly argued submissions by counsel, supported by extensive citation of case law and academic scholarship. All this is trite law. In Tito v. Waddell (No. 133. I would however add that the order proposed by your Lordships does not reflect this principle; it goes further. The Court of Appeal, comprising Lord Woolf M.R., Millett and Mummery L.JJ., allowed the appeal: see [1998] Ch, 439. The Court of Appeal upheld the decision of the Vice-Chancellor, Sir Richard Scott, that Blake is not liable to account for his profits as a fiduciary: Attorney-General v. Blake [1998] Ch. It does not award to the Crown damages for breach of contract assessed by reference to what would be the reasonable price to pay for permission to publish. The fourth appellant said a national party should embrace all the tribes of Zambia otherwise she should not join. On 16 August 1944 Blake signed an Official Secrets Act declaration. Plainly, had Blake not been an infamous spy who had also dramatically escaped from prison, his autobiography would not have commanded payments of this order. However, it is not easy to see why, as between the parties to a contract, a violation of a party's contractual rights should attract a lesser degree of remedy than a violation of his property rights. This principle is established and not controversial. That is confiscation in substance, if not in form. JUDGMENT The Attorney General (Appellant) v Keron Matthews (Respondent) From the Court of Appeal of the Republic of Trinidad and Tobago before Lord Phillips Lord Brown Lord Kerr Lord Dyson Sir Patrick Coghlin JUDGMENT DELIVERED BY Lord Dyson ON 20 October 2011 Heard on 7 July 2011. 4, p. 143, pp. 153-2016 George Peter Mwanza & Melvin Beene Vs. Attorney General- Dec 2019- Justice Malila,JS In such a case damages are measured by the benefit received by the trespasser, namely, by his use of the land. The context is employment as a member of the security and intelligence services. Since the House has not heard contrary argument, it would not be right to express any views on Mr. Clayton's submissions regarding these cases. For instance, an account of profits may not be ordered against a defendant in a patent infringement action who proves that at the date of the infringement he was not aware, and had no reasonable grounds for supposing, that the patent existed: Patents Act 1977, section 62(1). To this end the court has wide powers to grant injunctive relief. authorities – the English High Court’s judgment in Wrotham Park Estate Co Ltd v Parkside Homes Ltd and Others [1974] 1 WLR 798 (“Wrotham Park”) and the decision of the House of Lords in Attorney-General v Blake (Jonathan Cape Ltd Third Party) [2001] AC 268 (“AG v Blake”). 798. 2. I am reinforced in this view by noting that most of the profits from the book derive indirectly from the extremely serious and damaging breaches of the same undertaking committed by Blake in the 1950s. Indeed, the order is so drafted. By way of contrast, over the last 20 years there has been no lack of academic writing. Typically this occurs where an offence is frequently repeated in disregard of an inadequate penalty: see Gouriet v. Union of Post Office Workers [1978] A.C. 435. Thus in the case of a continuing wrong, such as maintaining overhanging eaves and gutters, damages were limited to the loss suffered up to the commencement of the action: see Battishill v. Reed (1856) 18 C.B. He had sought unsuccessfully to have access to the further money due and owing to him by the publisher for the purpose of funding his defence. So do the circumstances in which breaches occur, and the circumstances in which remedies are sought. They are claimed as of right, and are awarded or refused on the basis of legal principle [36, 81, 95(12)]. Breach of trust and fiduciary duty I should refer briefly to breach of trust and breach of fiduciary duty. But the Crown has, with your Lordships' encouragement and leave, cross-appealed to make the private law claim to restitutionary damages which it had previously declined to make. ; at 226E, per Pill L.J. Attorney General, Mr. Hausner, and his assistants, Dr. Robinson, Mr. Bar-Or, Mr. Bach, and Mr. Terlo, who helped in the conduct of the case, carried an enormous burden on their shoulders, and displayed absolute mastery of the huge amount of legal and factual material … It established that in some circumstances where ordinary remedies are inadequate, restitutionary damages may be awarded. The contractual right in Reid-Newfoundland Co. v. Anglo-American Telegraph Co. Ltd. [1912] AC 555 was held to have created a trust. In that case, the House of Lords recognised that an account and disgorgement of profits could be awarded for a breach of contract. That is a remedy based on proprietary principles when the necessary proprietary rights are absent. I consider he was right to do so. Contract law damages are not a matter of discretion. In a case crying out for effective relief against Blake, the Court of Appeal devised an injunction, the objective of which was to prevent the money reaching Blake. 518. It would be unreasonable for the plaintiff to incur that expense. Since courts regularly make orders for the specific performance of contracts for the sale of land, a seller of land is, to an extent, regarded as holding the land on trust for the buyer: Lake v. Bayliss [1974] 1 W.L.R. In practice, these specific remedies go a long way towards providing suitable protection for innocent parties who will suffer loss from breaches of contract which are not adequately remediable by an award of damages. . A trespasser who enters another's land may cause the landowner no financial loss. . Secret information is the lifeblood of these services. If Blake were to return to this country he could be prosecuted for a breach of section 1(1) of the Official Secrets Act 1989. 104. . In all these cases rights of property were infringed. That well known ailment of lawyers, a hardening of the categories, ought not to be an obstacle: see 'Restitution or Damages' (1959) 20 Ohio L.J. Our law is also mature enough to provide a remedy in such a case but does so by the route of the exceptional recognition of a claim for disgorgement of profits against the contract breaker. stated, in Hogg v. Kirby 8 Ves. The cases mentioned above show that the courts habitually do that very thing. The Crown had and has a legitimate interest in preventing Blake profiting from the disclosure of official information, whether classified or not, while a member of the service and thereafter. Likewise, the court will compel the observance of negative obligations by granting injunctions. These authorities, which Parts did relate to his activities as a secret service officer but by 1989 none of the information was any longer confidential nor was it alleged that it would damage the public interest. The Court of Appeal expressed the view, necessarily tentative in the circumstances, that the law of contract would be seriously defective if the court were unable to award restitutionary damages for breach of contract. Now that he had an asset within the jurisdiction, that at least should be withheld from him; the asset had a connection with the crimes which he had committed. Attorney General v Blake [2001] 1 AC 268. The court upheld Sir Richard Scott V.-C.'s ruling on the breach of fiduciary claim. They may not put themselves in a position where their duty and interest conflict. I have two primary difficulties. The buyer of a house may be attracted by features which have little or no impact on the value of the house. As Lord Woolf noted, the Attorney General stands in an altogether different legal and constitutional position. The advice of the Privy Council as enunciated by Lord Templeman was as follows. The present case fell into the latter category: Blake earned his profit by doing the very thing he had promised not to do. Although the order is strictly only interlocutory in character ('until further order'), the basis on which the court has made the order is that Blake will never receive any of the unpaid royalties. A further substantial amount, in the region of £90,000, remains payable. Mr Gauntlett seeks to rely on the following principal decisions for the proposition that reverse onus provisions are constitutional: Freiremar SA v Prosecutor-General of Namibia 1996 NR 18 (HC); S vChogugudza1996 (1) ZLR 28 (H); S v Meaker 1998 (2) SACR 73 (WLD), and the minority judgment of Kentridge JA in Coetzee.These cases will be dealt with more fully later on in this judgment. Att-Gen v De Keyser's Royal Hotel Ltd.[1920] AC 508) The Crown accepted that it could not realistically say that it would ever be in a position to invoke the statutory powers. I am not at present willing to endorse the broad observations of the Court of Appeal. The advice of the Privy Council as enunciated by Lord Templeman was as follows. The defendant must make a reasonable payment in respect of the benefit he has gained. Therefore the trial judge s interpretation and conclusions that they became members of the national party on the authority of the Attorney General v Marcus Kachiume (8) and DPP v … Further, the circumstances in which an account of profits is available under the statutes vary. In August 1944 he signed the requisite declaration under the Act. Neutral Citation: [2016] JMSC Civ.159. That is axiomatic. What is the anticipated adjudication? 2. The cases mentioned above show that the courts habitually do that very thing. When the circumstances require, damages are measured by reference to the benefit obtained by the wrongdoer. It is therefore particularly important to be clear what are the facts which have given rise to the Attorney-General's claim in the present case. observed that these actions had 'crept in by degrees'. But the Court of Appeal has been bold. The classic example of this type of case, as every law student knows, is a contract for the sale of land. But it is right to acknowledge that the academic comment has been critical of the decision in Bredero. Parliament has legislated for the circumstances in which the profits of crime may be confiscated. Negotiating damages for breach of contract Against this background I turn to consider the remedies available for breaches of contract. The way it was put by the Court of Appeal [1998] Ch 439, 464 was: "The ordinary member of the public would be shocked if the position was that the courts were powerless to prevent [Blake] profiting from his criminal conduct." An injunction restrained the continuance of the wrong, and the wrongdoer was required to account for the profits or benefits he had obtained from breaches or infringements which had already occurred. B.L.J. 7. ON 27 July 2000. Attorney General v Blake and the use of restitutionary damages for contractual breach English courts seem to have adopted a similar view to Canada and the United States, prior to the case of Attorney General v Blake, and often forged some relationship (fictional or otherwise) of trust between the claimant and defendant, in order to justify an award of restitution within the domain of contracts. The facts were strikingly similar. Citation. The measure of damages awarded in this type of case is often analysed as damages for loss of a bargaining opportunity or, which comes to the same, the price payable for the compulsory acquisition of a right. . If what the plaintiff is entitled to is wealth expressed in monetary terms, the order will be for the payment of money but this does not alter the character of the remedy or of the right being recognised. Lastly, it has been a longstanding principle of the common law that, absent legislative authorisation, a court may not confiscate the property of a citizen: see Malone v. Commissioner of Police of the Metropolis [1980] Q.B. . The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. 175. Presiding Judge: The Hon. is guilty of an offence if without lawful authority he discloses any information . In 1990 he published his autobiography, a further breach of his express undertaking. Subordinating conceptual difficulties to the needs of practical justice a majority, and notably Lord Goff of Chieveley, at pp. He was sentenced to 42 years' imprisonment. Attorney General v Blake [2001] 1 AC 268 is a decision that does not fit principle. The trial took place before Sir Richard Scott V.- C. Blake was not represented at the trial. 4, p. 143, pp. It focuses on the status of the individual who makes the disclosure, rather than on the nature of the information itself. The state of the authorities encourages me to reach this conclusion, rather than the reverse. Remedies are the law's response to a wrong (or, more precisely, to a cause of action). The same principle is applied where the wrong consists of use of another's land for depositing waste, or by using a path across the land or using passages in an underground mine. I do not think these fears are well founded. A non-damaging disclosure by a member of the security and intelligence services is criminal, but the identical non-damaging disclosure by a Crown servant is not. These observations are almost banal: the public would be astonished if it was thought that judges did not conceive it as their prime duty to do practical justice whenever possible. In reaching his conclusion the judge applied by analogy the cases mentioned above concerning the assessment of damages when a defendant has invaded another's property rights but without diminishing the value of the property. Section 2 empowered the Court of Chancery at its discretion, in all cases where it had jurisdiction to entertain an application for an injunction or specific performance, to award damages in addition to or in substitution for an injunction or specific performance. In this latter capacity the Attorney General may, exceptionally, invoke the assistance of the civil law in aid of the criminal law. This difference in remedial response appears to have arisen simply as an accident of history. This form of order prompts the question: in the absence of a private law claim, what is the event pending which the money held by Jonathan Cape is being frozen in its hands? The basic remedy is an award of damages. Gains were to be disgorged even though they could not be shown to correspond with any disadvantage suffered by the other party. If the information was still confidential, Blake would in my view have been liable as a fiduciary. This does not alter the principles which are applicable nor does it provide the Crown with a remedy in the present case; but it is relevant to the understanding of the authorities. It was not a commercial document and its purpose was not to protect any commercial interest of the Crown or any right of the Crown commercially to exploit such information. Blake had not sought any prior authorisation from the Crown to disclose any of the information in the book relating to the Secret Intelligence Service. This principle is established and not controversial. This will have an unsettling effect on commercial contracts where certainty is important. Asking the right questions in the right order reduces the risk of wrong decisions. The court will, for instance, readily make orders for the specific performance of contracts for the sale of land, and sometimes it will do so in respect of contracts for the sale of goods. Had the information which Blake has now disclosed still been confidential, an account of profits would have been ordered, almost as a matter of course. He was employed as a member of the security and intelligence services for 17 years, from 1944 to 1961. Holt C.J. It established that in some circumstances, where ordinary remedies are inadequate, restitutionary damages may be awarded. © 2000 Crown Copyright. 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