Ex-employees, confidential information and contempt

Prior to last month’s Jockey Club -v- BBC judgment, the view had prevailed that, under the ‘Spycatcher principle’, any party having notice of an injunction, whether named in the injunction or not, could be guilty of contempt if it acted to undermine the purpose of the injunction.

The BBC wanted to use, in a Panorama documentary on corruption in horse racing, certain confidential information which was the subject of an injunction and which had been disclosed to the BBC by Roger Buffham, who had acquired the information in the course of his employment as head of security at the Jockey Club.

When Mr Buffham left the Jockey Club, he had been contractually obliged not to disclose any confidential information. But the Jockey Club became aware that he had passed on to journalists, including the BBC, documents which he had kept and the Club obtained an injunction requiring him not to disclose any confidential information.

The injunction was served on the BBC, which then successfully applied to vary it.

Mr Justice Gray decided that the BBC should not be subject to restraint in the terms of the order against Mr Buffham, holding that:

lThe ‘Spycatcher principle’ applied to interlocutory but not final injunctions. Here the injunction was final, and only those against whom it was made would be bound by it.

lThe BBC was not bound or affected by the order, nor would it be at risk of committing contempt if it broadcast the information received from Mr Buffham, which was confidential.

lThe public interest in disclosure by the BBC outweighed the right of confidence of the Jockey Club for various reasons, including:

   a) information about wide-scale corruption within racing was of legitimate concern to a large section of the public;

   b) the Jockey Club is a public authority;    c) effective action, possibly beyond the

scope of the Jockey Club, was needed to preserve theintegrity of racing;

   d) the Jockey Club had itself previously

placed certain confidential information

relating to one of its own investigations in the

public domain in the form of a press release;

   e) the BBC programme-makers had acted

responsibly, and Panorama was a serious current affairs programme.

The underlying logic behind the judgment seems to be that the law of contempt is there to prevent interference with the course of justice and not to protect confidential information in perpetuity.

 

 Dominic Ward is a solicitor in the media team at Farrer & Co

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