TNAG-1694-FCO40-2344-Broadcasting-in-Hong-Kong-1987 — Page 29

SEP 08 87 14:40 HERBERT SMITH HK

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show that damages were not an adequate remedy. I cannot

start to accept this submission. First, in relation to breach of confidence, it is not open to us. We are bound by the unanimous view to the contrary of all the English judges. Secondly, I agree with Lord Ackner's comment that

the truth of the Vice-Chancellor's observation "is so crystal clear, that the proposition requires no further exposition"(17),

The same applios equally to the cause of action in breach of fiduciary duty. Thirdly, I can Все по basis in fact or law for the submission that if the trial judge regarded the Defendants' conduct as sufficiently heinous he could award punitive damages. Such a view of the Defendants' conduct should, in my view, lead to the grant of an injunction. Mr. Lester's stand was essentially

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contradictory. If the Plaintiff has an arguable case in either cause of action, it must be an arguable case for the law's only effective remedy namely an injunction,

In my judgment, therefore, the Plaintiff in

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relation to his cause of action for breach of confidence is in the same position in this case as he was before their Lordships' House. He has an arguable claim for the only effective remedy the law recognises namely an injunction. In addition he is in the same position in respect of his claim for breach of fiduciary duty. Unfortunately, the trial judge was persuaded to the contrary conclusion. He rejected Mr. Ribeiro's submission to the above effect and reached the conclusion that damages were an adequate remedy to the Plaintiff but not to the Defendants. With respect, this view is insupportable. It follows that he did not start correctly to assess the true impact of the grant and "the refusal of an injunction, and the exercise of his

discretion is fatally flawed.

It follows in my judgment that the real issue, before the judge and this Court is futility. The judge did not deal with this question, but had he done so his propositions (3) and (5) suggest to my mind that his conclusion would not have been favourable to the Defendants.

(17) Transcript p.23

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