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. Thus section 2 enabled the Court of Chancery, sitting at Lincoln's Inn, to award damages when declining to grant equitable relief rather than, as had been the practice since Lord Eldon's decision in Todd v. Gee (1810) 17 Ves. 119. In Beswick v. Beswick [1968] A.C. 58 the court made an order for the specific performance of a contract to make payments of money to a third party. But the common law, pragmatic as ever, has long recognised that there are many commonplace situations where a strict application of this principle would not do justice between the parties. It is this class of rights which the Crown is unable to invoke as a result of the judgment of the Vice-Chancellor upheld by the Court of Appeal. This lack of correspondence was openly acknowledged. Contract law damages are not a matter of discretion. Recently, the like approach has been adopted to breach of contract. They do not involve any concept of restitution and so to describe them is an error. Undermining the willingness of prospective informers to co-operate with the services, or undermining the morale and trust between members of the services when engaged on secret and dangerous operations, would jeopardise the effectiveness of the service. I need not pursue the detailed criticisms. The English case which highlights the thesis of this article is Attorney General v Blake. Holt C.J. The declaration which he signed included the added sentence: "I understand that the above clauses [2 and 3] of the Official Secrets Act 1911 and 1920 cover also articles published in the press and in book form and I undertake not to divulge any official information gained by me as a result of my employment either in the press or in book form." Attorney General v Blake [2000] UKHL 45, [2001] 1 AC 268 is a leading English contract law case on damages for breach of contract. And that course could only sensibly be entertained if there was not a restitutionary law remedy. This declaration included an undertaking: ' . The Crown has no right to an injunction to stop the payment of the royalty to Blake and procure its payment to the Crown instead. Sometimes the injured party is given the choice: either compensatory damages or an account of the wrongdoer's profits. (cf. That would be so, irrespective of whether the goods in fact served the intended purpose. The distinctive feature of this case is, however, that Blake gave an undertaking not to divulge any information, confidential or otherwise, obtained by him during his work in the intelligence services. Most writers have favoured the view that in some circumstances the innocent party to a breach of contract should be able to compel the defendant to disgorge the profits he obtained from his breach of contract. 25. It bears repetition: Lord Shaw prefaced this observation with a statement of general principle: That was a patent infringement case. In all these cases rights of property were infringed. The law, including equity, provides extensive and effective remedies for protecting and enforcing property rights. But the common law, pragmatic as ever, has long recognised that there are many commonplace situations where a strict application of this principle would not do justice between the parties. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Shirley A. Nelson and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent. 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. HER MAJESTY'S ATTORNEY GENERAL (RESPONDENT) v. BLAKE (APPELLANT) AND ANOTHER. To him the loss may be as important as financially measurable loss, or more so. In respect of certain wrongs which originally or ordinarily were the subject of proceedings in the Court of Chancery, the standard remedies were injunction and, incidental thereto, an account of profits. This is not an issue before the House. The defendant had broken his contract. The broad proposition that a wrongdoer should not be allowed to profit from his wrong has an obvious attraction. But a part refund of the price agreed for services would not fall within the scope of an account of profits as ordinarily understood. As a footnote I observe that a similar conclusion, requiring the contract-breaker to disgorge his profits, was reached in the majority decision of the United States Supreme Court in Snepp v. United States (1980) 444 U.S. 507. James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellee. 246, concerning portable switchboards. An award of damages, based on strictly financial criteria, would fail to recompense a disappointed buyer for this head of loss. But it potentially has wide application. A person who, in breach of contract, sells land twice over must surrender his profits on the second sale to the original buyer. On 3 May 1961 he pleaded guilty to five charges of unlawfully communicating information contrary to section 1(1)(c) of the Official Secrets Act 1911. 696. Between 1951 and 1960, he disclosed valuable secrets to foreign agents. In the Bredero case Dillon L.J. The reason why the grant of the injunction cannot be sustained is that there is no common law power to confiscate as such the earnings of even convicted criminals (Malone v Metropolitan Police Commissioner [1980] QB 49) and, if there was any such power, the field is now fully occupied by statutory provisions which proceed on the basis that there is no such general power and make express and defined provision for a qualified grant of such a power. Blake was not represented on the hearing of the appeal but, once again, the court had the assistance of leading and junior counsel as amici curiae. The court always had a discretion regarding the grant of the remedy of an account of profits, and this remains the position. 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. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. This is a subject on which there is a surprising dearth of judicial decision. Cited – Attorney-General v Newspaper Publishing Plc and Others CA (Times 02-May-97, [1998] Ch 333, [1997] 1 WLR 927) A third party was in contempt of court if the proceedings had been significantly, and adversely, affected. Jun. It will be convenient to consider this private law claim first. Sharon V. Cooper, under appointment of the Court of Appeal, for Defendant and Appellant. For instance, confidential information may be published in breach of a non-disclosure agreement before the innocent party has time to apply to the court for urgent relief. Considered as a matter of principle, it is difficult to see why equity required the wrongdoer to account for all his profits in these cases, whereas the common law's response was to require a wrongdoer merely to pay a reasonable fee for use of another's land or goods. Between 1944 and 1961, Blake was employed by the Crown as a member of the Secret Intelligence Service. The advice of the Privy Council as enunciated by Lord Templeman was as follows. Cas. Mrs. Justice Natalie Hart-Hines (Ag) 02.07.2020: 2015HCV05030 : Neil, George v The Attorney General of Jamaica, Office of the Utilities Regulation and Spectrum Management Authority: The Hon. The point arose out of the amendments made to the statement of claim in the course of the proceedings in the Court of Appeal. Sundaresh Menon CJ (delivering the judgment of the court): Introduction 1 The appellant is a gay man. Despite the encouragement of the Court of Appeal Mr. John Smith Q.C., the Attorney-General at that time, declined to pursue a claim for restitutionary damages for breach of contract. The Solicitor General stated explicitly that the order was intended only to be preservative: a 'freezing' order. When criminal proceedings were launched, the court would have statutory jurisdiction to make a restraint order to prevent the proceeds of a criminal offence being used or dissipated. He has not been convicted of that offence. Facts. 435. Attorney General v. Blake and Another [2000] UKHL 45; [2000] 4 All ER 385; [2000] 3 WLR 625 (27th July, 2000) HOUSE OF LORDS Lord Nicholls of Birkenhead Lord Goff of Chieveley Lord Browne-Wilkinson Lord Steyn Lord Hobhouse of Wood-borough OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE HER MAJESTY'S ATTORNEY GENERAL. This may include a mandatory order to undo an existing breach, as where the court orders the defendant to pull down building works carried out in breach of covenant. 1073. There is a light sprinkling of cases where courts have made orders having the same effect as an order for an account of profits, but the courts seem always to have attached a different label. 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. Then the breach is irreversible. That is a remedy based on proprietary principles when the necessary proprietary rights are absent. It established that in some circumstances where ordinary remedies are inadequate, restitutionary damages may be awarded. The fourth appellant said a national party should embrace all the tribes of Zambia otherwise she should not join. Attorney General v Blake [2001] 1 AC 268 is a leading English contract law case on damages for breach of contract. 408 and Jaggard v. Sawyer [1995] 1 WLR 269, both cases concerned with access to a newly-built house over another's land. change. Decision Overview. 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. These are still truly restitutionary concepts leading to restitutionary remedies. It is said that the remedy should be available in two situations, viz (1) in cases of "skimped" performance (where the "gain" would take the form of expense saved) and (2) "where the defendant has obtained his profit by doing the very thing which he contracted not to do". British journalist Roy Clarke appealed a deportation order made by the Minister of Home Affairs following an article he had written characterizing members of the Zambian Cabinet as animals. 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. Had Blake not signed it he would not have been employed. This appeal concerns a sum of about £90,000 payable by Jonathan Cape Ltd., the publishers, to Blake. 1216, 1217. 359-61) is illuminating. In my view the court has no power to make such an order. That would be so despite the fact that he left the intelligence services many years ago. This obligation still applies to Blake. If confidential information is wrongfully divulged in breach of a non-disclosure agreement, it would be nothing short of sophistry to say that an account of profits may be ordered in respect of the equitable wrong but not in respect of the breach of contract which governs the relationship between the parties. Connolly v. McConnell defendant recover judgment against the plaintiffs for £31,577.44 damages, being the unpaid balance of a sum of £62,266.75 damages which had been agreed by the parties.] Lord Woolf was not there addressing the question of when an account of profits, in the conventional sense, should be available. A notable example is the wrong of conversion. But in a persuasive speech counsel for Blake has persuaded me that the judgment of the Court of Appeal on this aspect cannot stand. 133. 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. But the law did not impose a duty which went beyond this. As already mentioned, but for his notoriety as an infamous spy his autobiography would not have commanded royalties of the magnitude Jonathan Cape agreed to pay. In the present case Blake's disclosure of the information in his autobiography to his publishers was a breach of section 1(1) of the Official Secrets Act 1989: If Blake's disclosure occurred before this Act came into force on 1 March 1990, the disclosure was an offence under comparable provisions in section 2(1) of the Official Secrets Act 1911. There was no longer anything which was confidential or which would damage the public interest; he no longer had any fiduciary relationship to the Crown. It is a form of specific implement. a member of the security and intelligence services . (The award of damages in tort for the conversion or detinue of goods is also an example of compulsory purchase as is demonstrated by the common law rule that the payment of the damages vests the title in the goods in the defendant.) Secret information is the lifeblood of these services. The law recognises that damages are not always a sufficient remedy for breach of contract. With the established authorities going thus far, I consider it would be only a modest step for the law to recognise openly that, exceptionally, an account of profits may be the most appropriate remedy for breach of contract. The book, entitled No Other Choice, was published on 17 September 1990. This is so because the Court of Appeal in granting the injunction undoubtedly extended the reach of existing powers of the Attorney-General. The Private Law Claim: Restitutionary Damages It is with some hesitation that I enter upon this field at all in view of your Lordships' so far unanimous opinion save so as to record my dissent. My Lords, taxonomy requires that the question whether there is such a private law remedy should be considered first. It bears repetition: 'If A, being a liveryman, keeps his horse standing idle in the stable, and B, against his wish or without his knowledge, rides or drives it out, it is no answer to A for B to say: "Against what loss do you want to be restored? In the present case disclosure was also a criminal offence under the Official Secrets Acts, even though the information was no longer confidential. But this analysis takes the matter now under discussion no further forward. As Glidewell L.J. 520. Contractual obligations vary infinitely. 641 the plaintiff suffered no financial loss but the award of damages for breach of contract effectively stripped the wrongdoer of the profit he had made from his wrongful venture into the black market for new cars. However, it is right that I should state briefly why I cannot agree with the decision of the Court of Appeal on this point, much as I sympathise with the court's objective. What then was left? Mrs. Justice Natalie Hart-Hines (Ag) 02.07.2020: 2015HCV05030 : Neil, George v The Attorney General of Jamaica, Office of the Utilities Regulation and Spectrum Management Authority: The Hon. I shall first set the scene by noting how the court approaches the question of financial recompense for interference with rights of property. Lord Cairns' Act liberated the courts from this fetter. That was a patent infringement case. The Sinn Féin Funds case (Buckley and Others v. the Attorney-General and Another) was a 1942–48 Irish court case in which the Sinn Féin party claimed ownership of funds deposited with the High Court in 1924 which had belonged to the Sinn Féin party before 1923. The loss is a reasonable valuation of what the plaintiff ought to have had but did not get. The Court of Appeal held that the jurisdiction of the civil courts, on an application of the Attorney General, was not limited to granting an injunction restraining the commission or repeated commission of an offence. Since this issue has not been directly debated in the present case I propose to express no view on it. However, there is a noticeable absence of any consensus on what are the circumstances in which this remedy should be available. In this country, affording the plaintiff the remedy of an account of profits is a different means to the same end. But since I recognise that it would be wrong to create a remedy simply to cover this case, it is right that I should explain the specific considerations which lead me to conclude that it is right on a principled basis to develop the law in a way which covers this case and other cases sharing materially similar features. In Beswick v. Beswick [1968] AC 58 the court made an order for the specific performance of a contract to make payments of money to a third party. The speech of Lord Mustill (pp. Blake also cited the U.S. Supreme Court ruling of District of Columbia v Heller from 2008, which upheld an individual's right to guns for lawful purposes. I have to say that one seeks in vain for any satisfactory explanation of what that event will be. I wish to pay tribute to the thoroughness with which counsel and solicitors prepared the appeal and the expertise with which Mr. Clayton presented it to your Lordships. The reality is that the injured person's rights were invaded but, in financial terms, he suffered no loss. Blake, Jervis v Attorney General of Jamaica consolidated with Black, Simon v Attorney General of Jamaica et al.pdf. v Attorney-General [2018] SGHCF 18 High Court (Family Division) — District Court Appeal No 2 of 2018 Sundaresh Menon CJ, Judith Prakash JA and Debbie Ong J 17–18 July 2018 17 December 2018 Judgment reserved. 25, 39. In such a case damages are measured by the benefit received by the trespasser, namely, by his use of the land. 107. The claim is for damages in order to put the plaintiff in the same position as if the contract had been performed. The prima facie measure of damages would have been the cost of increasing the depth of the pool to the stipulated depth - a considerable sum. Damages are measured by the plaintiff's loss, not the defendant's gain. 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