RECLAIMING MOTION IN PETITION OF DR AVRIL OSBORNE FOR INTERDICT v. BRITISH BROADCASTING CORPORATION AND ANOTHER and THE ORCADIAN LIMITED
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Coulsfield Lord MacLean Lord Kingarth | P4/7/99 OPINION OF THE COURT delivered by LORD COULSFIELD in RECLAIMING MOTION in Petition of DR AVRIL OSBORNE Petitioner and Respondent; for interdict etc. against BRITISH BROADCASTING CORPORATION AND ANOTHER First Respondents and Reclaimers; and THE ORCADIAN LIMITED Second Respondents and Reclaimers _______ |
Act: Keen Q.C.; Bennett & Robertson (Petitioner and Respondent)
Alt: Cullen Q.C., Fairley; Maclay Murray & Spens (First Respondents and Reclaimers)
Thomson; Balfour & Manson (Second Respondents and Reclaimers)
13 August 1999
This is a reclaiming motion by the respondents against an interlocutor dated 29 July 1999 by which the Lord Ordinary granted interim interdict against the respondents publishing or otherwise disseminating certain information relating to the petitioner.
The petition narrates that the petitioner was employed by Orkney Islands Council as Director of Community Social Services and that arrangements were made by a Minute of Agreement between the petitioner and the Council dated 23 and 25 November 1998 to terminate the petitioner's contract of employment on mutually acceptable terms. It was agreed that the petitioner would retire from service with the Council on 31 March 1999 and certain arrangements were made in relation to pension and other benefits. Clause 6 of the Agreement provided,
"The Council and Dr. Osborne agree that neither party will make or cause to be made on their behalf now or at any time in the future any statement or comment concerning:
(1)The circumstances of and events leading to Dr. Osborne's retirement;
(2)The Council's policies and practices as employer in matters relating to Dr. Osborne;
except in terms of the joint statement annexed and executed at Schedule 2 hereto or as may be approved by the parties in any future joint statement in agreed form.
Without prejudice to the foregoing generality Dr. Osborne agrees that she will not make or cause to made on her behalf now or at any time in the future any statement or comment concerning the Council's policies and practices as a social work authority other than with the prior consent of the Council."
By Clause 7 it was agreed that the Council would rebut any statement made by its officers, employees or elected members that Dr. Osborne was the subject of disciplinary action at any time or that any such action was pending or that there was any stain on her professional reputation. It was also agreed that distribution of minutes of any Council meeting concerning any of the matters covered by the Agreement should be marked "not for publication" in terms of paragraph 1 of Part 1 of Schedule 7(a) of the Local Government (Scotland) Act 1973.
The official statement which was annexed to the Agreement set out that the petitioner was to retire and continued,
"Dr. Osborne joined the Council in the immediate aftermath of the Clyde Report. Nobody could overestimate the daunting task she faced in restoring relations with the community and the morale of the Department.
During Dr. Osborne's years with the Council social work practice has seen significant progress, not least with the implementation of Care in the Community and the Children (Scotland) Act 1995.
Dr. Osborne has devoted enormous personal commitment and energy to her job. She feels that now is the right time to move on and she leaves with the best wishes of the Council."
The petition further narrates that two former employees of the Council had applied to an industrial tribunal claiming unfair dismissal. Those employees had worked in the Council at the same time as the petitioner and it was anticipated that the petitioner would be a material witness at the tribunal hearings and that the scope of enquiry might extend to matters covered by what is referred to as the confidentiality clause. This had been in contemplation when the clause was drafted. On Thursday 25 July 1999, the petitioner was told that these claims had been compromised and the matters settled, and that there would be a press statement in relation to the terms agreed with one of the employees, Stewart Christie. The petitioner further believed that this would be a matter of interest to the press both locally and nationally. The first respondents did broadcast a news report on 29 July 1999 but there was no reference in it to any conduct or action on the part of the petitioner. The petitioner however avers that she believes that, following the press release, details of the background and settlement of the claim by the other employee, Margaret Jackman, would be released to the press and that further broadcasts and reports which would follow would include information relating to the circumstances of her retirement.
The essence of the petitioner's case as presented in the petition is found in statements 6 and 7 which are in the following terms,
"6.Information relating to the petitioner's retirement from the Council, her dealings with employees and her practices and policies are confidential to the petitioner and the Council in terms of the said Minute of Agreement. The background to the termination of the employment of Stewart Christie and Margaret Jackman bear upon the circumstances of and the events leading to the petitioner's retirement from the Council. It also related the Council's policies and practices in relation to the petitioner and other employees. These matters were specifically rendered confidential by virtue of Clause Sixthly of the Minute of Agreement as hereinbefore condescended upon. The petitioner and her legal advisers have contacted the respondents and appraised them as to the terms of the said Agreement and the confidential nature of the information. The respondents know or ought to know that the information is confidential.
7.The petitioner is reasonably apprehensive that material concerning the circumstances and events leading to her retirement has been passed to the press and will be published by the respondents in contravention of the terms of the said Minute of Agreement and the petitioner's right to confidentiality. Given the knowledge of the respondents such publication would constitute a breach of confidence."
The petitioner's application for interim interdict was heard on 28 July 1999. The first respondents had lodged a caveat and were represented at the hearing: the second respondents were not represented. The prayer of the petition was amended in the course of the hearing. By the interim interdict which was ultimately pronounced, the Lord Ordinary interdicted the respondents or anyone on their behalf,
"From printing, publishing, distributing or otherwise disseminating material anent the petitioner concerning (a) the petitioner's sexuality, (b) the reasons for her retirement from the Council in November 1998, (c) the Council's policies and practices as employers in matters relating to Dr. Osborne, in each case save insofar as presently in the public domain."
The Lord Ordinary was not asked at the hearing to issue a written opinion. Shortly after it, however, in anticipation of an early hearing of this reclaiming motion, he prepared an informal note giving his recollection of what took place. He records that counsel for the petitioner submitted that a private contractual agreement between the petitioner and her employers was relevant in a question with a third party. The agreement as to confidentiality was of great importance to the petitioner and it would be very damaging and distressing to her if third parties were to act on leaked information covered by such agreement. Counsel for the respondents is recorded as accepting what had been said by counsel for the petitioner so far as the law was concerned but submitted that no prima facie case had been made out and that material which was of concern to the petitioner was in the public domain in any case, as a result of disclosures made prior to the termination of her employment. The Lord Ordinary's note then states,
"I indicated that I was minded to afford the petitioner some protection upon her present application, in my view on the balance of convenience. In particular it seemed to me on what was said by Mrs Wade that the petitioner had what could well turn out to be a justifiable concern about release of information which she had a legal right not to have released.
On the other hand, I took the view which I indicated to parties that on what was said for the respondents there could well be matters based on information ante-dating and not concerned directly with the Agreement between the petitioner and her employers and accordingly that there were or might be matters on which the respondents could justifiably report without regard to the Agreement between the petitioner and her employers."
The Lord Ordinary then says that he suggested that parties should make a further attempt to agree terms on the basis that it would be open to the respondents to seek variation or recall of an interim interdict or of any agreed terms incorporated into one. He makes it clear however that the petitioner's counsel envisaged that there should be an interim interdict and not an undertaking or other attempt to avoid an interim interdict. Parties then discussed matters further and the Lord Ordinary says that in due course he was told that they had succeeded in coming to an agreement about suitable wording for an interim interdict. That wording was what appeared in the interdict, which was granted. He says that counsel for the respondents did not object to the matter being dealt with by interim interdict rather than merely as an undertaking.
We should deal first with a preliminary point raised by counsel for the petitioner at the hearing of the reclaiming motion. It was submitted that the prayer of the petition had been amended and the interlocutor had adopted the terms of the amended prayer. Those amended terms had been prepared by the respondents and put to the petitioner, who had agreed to them. After that, a motion for interim interdict had been made and, counsel said, not opposed. The judge had indicated that he was minded to grant interim interdict and in that situation the respondents had prepared the terms of the interlocutor which was granted. The result was that the respondents were now seeking to reclaim an interlocutor pronounced in terms proposed by them and not opposed before the judge and they were therefore barred from reclaiming. The proper course for the respondents was to apply for variation or recall of the interlocutor. Counsel agreed however that the interlocutor did not bear to have been granted of consent.
In our view this preliminary point is unfounded. There was some discussion between counsel about what precisely was said at various stages before the Lord Ordinary. On the basis of what the Lord Ordinary tells us, however, it is clear that he told parties that he was minded to grant interim interdict and then asked them to discuss the terms. In those circumstances, in our view, the fact that the respondents did discuss and even propose certain terms which were incorporated into the interim interdict pronounced does not bar them from maintaining that interim interdict should not have been granted at all. There is authority, which was referred to, to the effect that an interlocutor granted of consent cannot be challenged but, so far as we can see, that authority only applies to interlocutors which bear to have been granted of consent. In our opinion, no circumstances have been drawn to our attention which would justify us in holding that the reclaimers are barred from challenging the grant of interim interdict.
At the hearing before us, counsel for the first respondents and reclaimers initially submitted that the judge had been in error in accepting that the petitioner had a legal right to prevent the release of the information which she claimed to be confidential. He submitted that the petitioner had no such right or at least that no prima facie relevant case based on such a right had been presented. This argument had been advanced before the Lord Ordinary. The petitioner's case in the petition was based entirely on a clause in a Minute of Agreement to which the respondents were not parties. The legal basis on which it was alleged that the respondents had become bound to observe that Agreement was not clear either in the petition or the judge's note. Between the petitioner and the Council, the question of the effect of the Agreement might be one of construction but, as regards third parties, there was no obligation of confidentiality suggested or founded upon apart from the Minute of Agreement. The sole question therefore was whether and how a contract between the petitioner and her employers could transmit against the respondents. If the terms of the Minute of Agreement were examined, they did not contain any confidentiality agreement in a proper sense at all. All that was said was that the parties had agreed a form of words acceptable to them and that they would not make any other or different statement. They reserved the right to issue further statements. Such an agreement could not bind third parties and in any event it did not even mention confidentiality. Counsel accepted that the Agreement was probably competent and enforceable as between the petitioner and the Council, regardless of the content of any information sought to be protected and regardless of the circumstances in which it might be reported. The present question however concerned the transmission of information to passive third parties.
In response to that initial submission on behalf of the respondents, counsel for the petitioner advanced an argument which was not primarily based upon the terms of the Minute of Agreement. Counsel stated that there had been reports (some of which were in fact produced by the respondents) in relation to the petitioner's sexual orientation which had been published and had not been denied by the petitioner. There had been other reports in regard to her position with the Council. In November 1998, the petitioner had entered into discussions with the Council about her position and in particular she had had discussions with the Director of Personnel. In those discussions, she had been prepared to make disclosures about her private life and her personal relationships. It had been recognised by the Council that these were very personal matters and that the discussion was entirely confidential. The Minute of Agreement amounted to an acknowledgement by the only recipient of this information that the disclosures had been made in confidence. The petitioner however was not founding only on the Agreement, since disclosure of what she had said in these discussions would amount to a breach of an obligation of confidence implied by law. Counsel referred to the cases of The Lord Advocate v The Scotsman Publications Limited 1989 S.C. 121 and to Attorney General v Guardian Newspapers Limited (No.2) [1991] 1 A.C. 109. Reference was also made to Barrymore v News Group [1997] 24 Fleet Street Reports 600, and McEwan v The BBC (5 November 1992 unreported), a decision of Lord Cameron of Lochbroom. Counsel submitted that at common law an obligation of confidentiality could be based both on the circumstances in which information was confided and on the nature of the information. He said, at one stage, that he was not suggesting that if the respondents were aware of information which they had obtained otherwise than through disclosure from the Council, directly or indirectly, they could not publish it, although he pointed out that the law did not recognise any public interest in information relating to a person's sexuality as a matter for publication and that it was also recognised that such information could of its nature be confidential. He submitted, however, that in any event the petitioner's position was that the only way in which information about the matters of concern to her could have reached the respondents was through a breach of confidence either on the part of the Council or on the part of some other person equally under an obligation of confidence, such as a partner in a relationship. Accordingly it was submitted that the petitioner had clearly averred a prima facie case for protection and the Lord Ordinary had correctly exercised his discretion.
In reply to those submissions, counsel for the first respondents pointed out that even at this stage the nature and content of the information supposed to be confidential remained obscure. Counsel for the petitioner had focussed almost entirely on the question of the petitioner's sexuality and nothing had been said which would justify an interim interdict under heads (b) and (c) of the interdict which was granted. He repeated that the Minute of Agreement was not an agreement relating to confidentiality. He was not setting out to criticise the width of the terms of the interim interdict granted but it was relevant to the question of the legal foundation for an interdict and the question whether it should have been granted at all to point out that the interdict extended far beyond anything which could be derived from the circumstances founded on by the petitioner. If there had been disclosure by the petitioner to her employers, further disclosure of that information could be restrained if the information had the necessary quality of confidence, but the authorities required such a quality as a condition for protection, as well as requiring that the information should have been communicated in circumstances importing confidentiality. The bare reference to sexuality in the interdict covered far more than the supposed information imparted to the Director of Personnel at a meeting. There were means by which the petitioner could, if she had chosen and if she had been able to do so, have communicated to the court and the opposing parties at least the general nature of the disclosures which had been made and which were sought to be protected. Further, as regards heads (b) and (c), there was no suggestion that any communication which had been made had been made in confidence and it was doubtful, even as regards head (a), whether any communication had been made in confidence. Information about the circumstances of the termination of the petitioner's employment could not be confidential. The parties could not, in a question with third parties, ex post facto cloak with confidence information about what had in fact occurred. The Agreement, therefore, had no effect as regards any information unless that information would itself be confidential. There was no averment that the Agreement had been breached by anyone and there had been no indication either of what the confidential information was or how it might have been transmitted.
Counsel for the second respondents adopted the submissions of counsel for the first respondents.
Counsel for the petitioner pointed out, finally, that there was no ground of appeal in relation to any lack of precision in the interim interdict and reminded the court that the terms had been prepared by the respondents. The petitioner could not be expected to spell out in detail the information which she alleged to be confidential because, having been disclosed in court, that information would become public. The concern about matters relating to the petitioner's sexuality extended beyond matters of her sexual orientation to matters of particular personal concern disclosed in circumstances which did give rise to confidence. There was no substance in the respondents' argument that they did not know what the matters were which were alluded to. The petitioner was concerned that there would be reports about detailed matters involving reference to third parties. At the present stage, the petitioner only had to show a prima facie, or arguable, or stateable case if an interdict was to be justified. There had been no challenge to the Lord Ordinary's decision on the balance of convenience.
It is, in our view, clear that, as the petition is framed, the ground on which confidentiality is claimed is the existence of the Agreement between the petitioner and the Council. In statement 6 of the petition, for example, it is stated that information relating to the petitioner's retirement from the Council and the other relevant matters are confidential "in terms of the said Minute of Agreement". A little later it is said that these matters "were specifically rendered confidential by virtue of Clause Sixthly of the Minute of Agreement". No argument was put before us to support reliance on the Agreement in itself as extending confidentiality to any information which was not already confidential for other reasons and no reference was made to any authority which would support any such extension. In our view, the argument advanced on behalf of the respondents that an agreement between the Council and the petitioner could not bind third parties such as the respondents is clearly correct. It follows, in our view, that no prima facie case to support the grant of an interdict was advanced before the Lord Ordinary and the application should have been refused.
What was advanced on behalf of the petitioner in the argument before us was a wholly different ground of confidentiality, not supported by any averments in the petition. We entirely accept that, at this stage of proceedings, it is not appropriate to scrutinise pleadings in any detailed way and that the petitioner must be allowed reasonable latitude. In this case, however, the position is that the pleadings contain no hint whatsoever of the ground which counsel put before us. What was said was that the petitioner had communicated confidential information about her personal affairs, including her relationships with other persons, to the Director of Personnel and that what she was concerned to protect was the disclosure of any of the material so communicated. We would certainly not exclude the possibility that a case might have been made for the protection of confidential information on that basis but it is an essential step in the petitioner's argument that the disclosure which she seeks to prevent by interdict against the respondents, must be disclosure of information transmitted to the respondents in breach of the obligation of confidence incumbent on the person to whom the information was disclosed. Such a case must, therefore, be related in some way to the disclosure of specific information. We think, moreover, that ways might be found to achieve such a link without necessarily making public the content of the confidential information which the petitioner seeks to protect. In any event, we do not see how such a case could support the grant of an interdict in the terms sought and granted in the interlocutor of 29 July. What has been granted is a blanket injunction covering all matters falling under the three heads set out in the interlocutor. The argument advanced on behalf of the petitioner does not, in our view, amount to the statement of a prima facie case in support of an interdict of the kind actually granted. On behalf of the petitioner, there was advanced, although less strongly, an additional argument to the effect that information of the kind whose disclosure the petitioner sought to prevent was in its nature confidential insofar as it bore on her personal relationships. For the purposes of the decision of the present reclaiming motion it is not necessary for us to consider how far such a case might be supported from the authorities. It is sufficient to say, again, that even if such a case could be made, it seems clear to us that it could not support an interdict of the type which was sought and granted. This is not, in our view, a matter of criticising the particular terms of the interdict. It is a matter of the nature of the interdict sought. As framed, it was perfectly appropriate to the ground on which interdict was originally sought, namely that all matters falling within the terms of the Agreement had been rendered confidential by it. It is entirely inappropriate to the alternative ground for seeking an interdict which was raised in argument.
For these reasons, we came to the conclusion that no prima facie case had been put forward which would justify the grant of an interdict of the kind sought in these proceedings. Accordingly in our view the interlocutor of 29 July fell to be recalled.