• In the case of Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 (QB), it was found that the court can give redress where there has been a breach of a non-legal convention particularly where the convention is protected by the common law duty of confidentiality.

Facts of the Case

  • Richard Crossman (Former Cabinet Minister) recorded detailed discussions of the Cabinet in a diary which was kept to be published in a book in the future.
  • Volume I of the book was given to the Secretary of the Cabinet in 1974. The Secretary, however, rejected the book.
  • In the absence of the Secretary’s approval, the first part of the book had been published in January 1974.
  • C, the Attorney General, applied for an injunction to stop the publishers and literary executors of Richard Crossman from publishing the entirety of the book. C’s arguments were that the doctrine of collective ministerial responsibility meant that an overriding public interest persisted to keep the details of Cabinet discussions confidential.

Issues

  • Can the court resist the publication of the book and the Cabinet details within it on the argument of public policy?

Held by the Queen’s Bench

  • The Court dismissed the actions and held that they did not hold the power to resist publishing the details of the discussions of the Cabinet given that such information dated as far as 10 years, which meant that the information itself lost its confidential element.

Lord Widgery CJ

  • Protecting confidential information is a cause for concern for the judiciary which the courts do not take lightly. As such, the court appreciates that where information attracts the principle of confidentiality, it will undergo its best endeavours to ensure such information is protected.
  • “The law recognises that an injunction may be granted to restrain the publication of information if it is of a confidential nature; if it is communicated in circumstances which impose confidentiality and if there is an intention revealed to make an unauthorised disclosure. All three tests are satisfied in the present case. The doctrine of confidentiality is an expanding one. The origin of the doctrine is found in Prince Albert v. Strange (1849) 1 H. & T. 1 , where it was said that breach of confidentiality gives rise to a remedy on its own and it is not necessary to found it on breach of contract or another established remedy.” [756]
  • “The onus is on the Attorney-General to show that Mr. Crossman accepted information received in Cabinet on the basis that he would keep it confidential. No one has given evidence that anyone said something in Cabinet on express terms that it would be treated in confidence and that that confidence was breached.”