24 '87 18:38 HERBERT SMITH ̈HK"
P.19
Date:
24.8.87
Time:
10
-
11 am
Reporter:
CNB/17
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I do not propose to consider individually
the references in the various judgments. Suffice it to say the possibility of such a distinction was recognised but not specifically in relation to "The Sunday Times," which was heard by the House of Lords although not a party to the Appeal.
Mr Ribeiro sought to reflect this
distinction in the claim for breach of fiduciary duty.
He cited
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a number of authorities, ranging from the older case of Keech
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v Sandford to the more modern case of Schering Chemicals v Falkman. He emphasised that relief depends in such circumstances not on whether information has been misused but still continues to be confidential and perhaps I should more accurately and correctly refer to "secret information" - but it depends upon unconscionable conduct. The defendants, said Mr Ribeiro, by serialising "Spycatcher" are participating in a breach of fiduciary duty by Wright, that is unconscionable conduct and should be restrained, an injunction would not in those circumstances be futile but would be quia timet in nature. There is a public interest, he said, against permitting fiduciaries to abuse their positions.
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Mr Lester condeded that the Attorney has an arguable case in respect of breach of fiduciary duty.
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He could, I
He
think, hardly do otherwise in the face of the authorities. made, however, two points. First, apart from the Schering case, the cases to which I was referred dealt with the nature of the duty rather than the circumstances in which injunctive relief will be granted. In Schering a TV company collaborated with the person under the duty in making a film.
Injunctive relief was granted although the information which was imparted by that film was already freely available from other sources.
That television
company, as Mr Lester said, is a very great distance from the defendants who have no direct connection with Mr Wright and who have not been instrumental in assisting him to bring the information into the public domain in the first instance.
It is perhaps interesting to note that Schering was argued on the basis of breach of confidence involving a fiduciary obligation.
It may be, as Mr Lester said, that there is
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HONG KONG