Lion Laboratories Ltd v Evans: CA 1985

Lion Laboratories manufactured and marketed the Lion Intoximeter which was used by the police for measuring blood alcohol levels of motorists. Two ex-employees approached the Press with four documents taken from Lion. The documents indicated that the Lion Intoximeter had faults which could have resulted in a significant number of motorists being wrongly convicted. Lion started proceedings against their ex-employees and Express Newspapers Limited to restrain disclosure of the information as to the faults. They obtained an interlocutory injunction restraining breach of confidence and infringement of copyright. The defendants appealed.
Held: The Court of Appeal allowed the appeal. The documents contained confidential information it would have been a breach of confidence to publish the information in them and an infringement of copyright to publish the documents themselves unless there were defences which permitted that in the vital public interest.
Stephenson LJ The judge was ‘right to make no difference between confidence and copyright for the purposes of this case’ and ‘The problem before the judge and before this court is how best to resolve, before trial, a conflict of two competing public interests. The first public interest is the preservation of the right of organisations, as of individuals, to keep secret confidential information. The courts will restrain breaches of confidence, and breaches of copyright, unless there is just cause or excuse for breaking confidence or infringing copyright. The just cause or excuse with which this case is concerned is the public interest in admittedly confidential information. There is confidential information which the public may have a right to receive and others, in particular the press, now extended to the media, may have a right, and even a duty to publish, even if the information has been unlawfully obtained in flagrant breach of confidence and irrespective of the motive of the informer. The duty of confidence, the public interest in maintaining it, is a restriction on the freedom of the press which is recognised by our law, as well as by article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969); the duty to publish, the countervailing interest of the public in being kept informed of matters which are of real public concern, is an inroad on the privacy of confidential matters.’ There were four considerations. ‘. . .The public are interested in many private matters which are no real concern of theirs and which the public have no pressing need to know. Secondly, the media have a private interest of their own in publishing what appeals to the public and may increase their circulation or the numbers of their viewers or listeners; . . . Thirdly, there are cases in which the public interest is best served by an informer giving the confidential information, not to the press but to the police or some other responsible body. . . . Fourthly . . . ‘there is no confidence as to the disclosure of iniquity’: and in 1984 extends to serious misdeeds or grave misconduct, he submits that misconduct of that kind is necessary to destroy the duty of confidence or excuse the breach of it, and nothing of that sort is alleged against the plaintiffs in the evidence now before the court.’ and ‘What makes this case so special is that the plaintiffs’ right to keep inviolate the secrecy of the information which the defendants wish to publish is undisputed, and the only question for interlocutory decision is whether that right is outweighed by the public interest, not in exposing persons who may be guilty of offences for which they have not been punished, but in disclosing the risk of the plaintiffs being instrumental in punishing other people for offences which they may not have committed.’ ‘The issue raised by the defendants is a serious question concerning a matter which affects the life, and even the liberty of an unascertainable number of Her Majesty’s subjects and though there is no proof that any of them has been wrongly convicted on the evidence of the plaintiffs’ Intoximeter, and we certainly cannot decide that any has, we must not restrain the defendants from putting before the public this further information as to how the Lion Intoximeter 3000 has worked, and how the plaintiffs regard and discharge their responsibility for it, although the information is confidential and was unlawfully taken in breach of confidence.’
Griffiths LJ: ‘The first question to be determined is whether there exists a defence of public interest to actions for breach of confidentiality and copyright, and if so, whether it is limited to situations in which there has been serious wrongdoing by the plaintiffs – the so-called ‘iniquity’ rule.
I am quite satisfied that the defence of public interest is now well established in actions for breach of confidence and, although there is less authority on the point, that it also extends to breach of copyright: see by way of example Fraser v Evans [1969] 1 QB 349; Hubbard v Vosper [1972] 2 QB 84; Woodward v Hutchins [1977] 1 WLR 760 and British Steel Corporation v Granada Television Ltd [1981] AC 1096.
I can see no sensible reason why this defence should be limited to cases in which there has been wrongdoing on the part of the plaintiffs. I believe that the so-called iniquity rule evolved because in most cases where the facts justified a publication in breach of confidence, it was because the plaintiff had behaved so disgracefully or criminally that it was judged in the public interest that his behaviour should be exposed. No doubt it is in such circumstances that the defence will usually arise, but it is not difficult to think of instances where, although there has been no wrongdoing on the part of the plaintiff, it may be vital in the public interest to publish a part of his confidential information. Stephenson LJ has given such an example in the course of his judgment.
I therefore agree with Leonard J that it is not an essential ingredient of this defence that the plaintiffs should have been guilty of iniquitous conduct’.
Stephenson LJ, Griffiths LJ
[1985] QB 526
England and Wales
Citing:

  • Cited – Initial Services Ltd v Putterill CA 1967
    The plaintiff’s sales manager resigned, but took with him confidential documents which he gave to a newspaper. The defendant sought to justify this, saying that the company had failed to register agreements it should have done under the Act.
    [1967] 3 All ER 145, [1968] 1 QB 396
  • Cited – Fraser v Evans CA 1969
    The law of confidence is based on the moral principles of loyalty and fair dealing. An injunction was sought to restrain an intended publication: ‘The court will not restrain the publication of an article, even though it is defamatory, when the . .
    [1969] 1 QB 349
  • Cited – Woodward v Hutchins CA 1977
    An injunction was sought to restrain publication of confidential information about a well-known pop group, starring Tom Jones and Engelbert Humperdinck. As the group’s press agent, the defendant’s role had been to see that the group received . .
    [1977] 2 All ER 751, [1977 1 WLR 760
  • Cited – Hubbard v Vosper CA 1971
    Claims of infringement were made as to copyright works being various works about Scientology. Extracts had appeared in the defendant’s book which was critical of the cult. It was submitted by the plaintiff that the fair dealing section applied only . .
    [1972] 2 WLR 389, [1971] 1 All ER 1023 CA, [1972] 2 QB 84
  • Cited – Schering Chemicals Ltd v Falkman Ltd CA 1982
    The Defendants’ professional skills were engaged to present the plaintiff company in a good light, and an injunction was granted to restrain them from doing the opposite. Sach LJ said: ‘even in the commercial field, ethics and good faith are not to . .
    [1982] QB 1, [1982] QB 1, [1981] 2 All ER 321, [1981] 2 WLR 848
  • Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
    The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
    Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
    [1981] AC 1096, [1981] 1 All ER 452, [1980] 3 WLR 774
  • Cited – Francome v Mirror Group Newspapers Ltd CA 1984
    The defendant had acquired illegal tapes of telephone conversations which it said implicated the plaintiff. He sought to restrain publication of the material pending forthcoming discliplinary charges at the Jockey Club.
    Held: The court had to . .
    [1984] 1 WLR 892
  • Cited – Gartside v Outram 1856
    An employee was told by his master ‘I am going to falsify these sales notes and deceive the customers. You are not to say anything about it to anyone.’ He thereafter falsified the sale notes.
    Held: The servant was entitled to say: ‘I am not . .
    (1856) 26 LJ Ch113
  • Cited – Beloff v Pressdram Ltd QBD 1973
    A journalist on The Observer sued the publishers of Private Eye for having published a memorandum of the plaintiff about a politician, Mr Maudling, which had been circulated amongst the employees of The Observer.
    Held: The defences to a claim . .
    [1973] RPC 765, [1973] 1 All ER 241

Cited by:

  • Cited – Hyde Park Residence Ltd v Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA 10-Feb-2000
    The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
    Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . .
    Times 16-Feb-00, Gazette 24-Feb-00, [2000] EWCA Civ 37, [2001] Ch 143
  • Considered – Express Newspapers v News (UK) plc 1990
    If summary judgment is given to one party on his claim, it must also be given on a counterclaim made on the same basis by the defendant. The principle that a party to litigation cannot ‘approbate and reprobate’ (or ‘blow hot and cold’) can curtail a . .
    [1990] 1 WLR 1320, Times 01-Jan-90, [1990] FSR 359, [1990] Ch D 1320
  • Approved – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
    Loss of Confidentiality Protection – public domain
    A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
    [1990] 1 AC 109, [1988] UKHL 6, [1987] 1 WLR 776, [1988] 3 All ER 545
  • Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
    The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
    [2006] EWHC 107 (QB), Times 09-Feb-06
  • Cited – McKennitt and others v Ash and Another QBD 21-Dec-2005
    The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
    Held: . .
    [2005] EWHC 3003 (QB), [2006] EMLR 10
  • Cited – Gregory v Portsmouth City Council HL 10-Feb-2000
    Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
    Times 02-Feb-00, Gazette 10-Feb-00, [2000] UKHL 3, [2000] 1 AC 419, [2000] 1 All ER 560, [2000] 1 WLR 306, [2000] BLGR 203, [2000] Po LR 3, (2000) 2 LGLR 667

These lists may be incomplete.
Updated: 10 December 2020; Ref: scu.223824