A-G V Blake
   HOME

TheInfoList



OR:

is a leading
English contract law English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries ...
case on damages for breach of contract. It established that in some circumstances, where ordinary remedies are inadequate,
restitution The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court o ...
ary damages may be awarded.


Facts

George Blake George Blake ( Behar; 11 November 1922 – 26 December 2020) was a spy with Britain's Secret Intelligence Service (MI6) and worked as a double agent for the Soviet Union. He became a communist and decided to work for the MGB while a pris ...
was a member of the
Secret Intelligence Service The Secret Intelligence Service (SIS), commonly known as MI6 ( Military Intelligence, Section 6), is the foreign intelligence service of the United Kingdom, tasked mainly with the covert overseas collection and analysis of human intelligenc ...
. He signed a
Official Secrets Act 1911 The Official Secrets Act 1911 (1 & 2 Geo 5 c 28) is an Act of the Parliament of the United Kingdom. It replaces the Official Secrets Act 1889. The Act was introduced in response to public alarm at reports of wide-scale espionage, some of them ...
declaration in his employment contract not to disclose information about his work, even after his employment ceased. In 1951, he became a Soviet agent. He was discovered in 1961 and the British government imprisoned him in
Wormwood Scrubs (HM Prison) HM Prison Wormwood Scrubs (nicknamed "The Scrubs") is a Category B men's local prison, located opposite Hammersmith Hospital and W12 Conferences on Du Cane Road in the White City in West London, England. The prison is operated by His Majesty's ...
. He escaped in 1966 and fled to the Soviet Union. He wrote a book about it and his secret services work called ''No Other Choice''. He received a publishing contract for its release in 1989, with Jonathan Cape Ltd. The information in the book was no longer confidential. Blake received advanced payments and was entitled to more.
The Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
brought an action for all the profits he made on the book including those that he had not yet received. It argued a restitutionary principle should apply.


Judgment

Lord Nicholls Donald James Nicholls, Baron Nicholls of Birkenhead, (25 January 1933 – 25 September 2019) was a British barrister who became a Law Lord (Lord of Appeal in Ordinary). Biography Nicholls was educated at Birkenhead School, before reading ...
,
Lord Goff of Chieveley Robert Lionel Archibald Goff, Baron Goff of Chieveley, (12 November 1926 – 14 August 2016) was an English barrister and judge who was Senior Lord of Appeal in Ordinary, the equivalent of today's President of the Supreme Court. Best known fo ...
,
Lord Browne-Wilkinson Nicolas Christopher Henry Browne-Wilkinson, Baron Browne-Wilkinson, PC (30 March 1930 – 25 July 2018) was a British judge who served as a Lord of Appeal in Ordinary from 1991 to 2000, and Senior Lord of Appeal in Ordinary from 1998 to 2000. ...
and
Lord Steyn Johan van Zyl Steyn, Baron Steyn, PC (15 August 1932 – 28 November 2017) was a South African-British judge, until September 2005 a Law Lord. He sat in the House of Lords as a crossbencher. Early life and education Steyn was born in Stellen ...
held that in exceptional cases, when the normal remedy is inadequate to compensate for breach of contract, the court can order the defendant to account for all profits.
001 001, O01, or OO1 may refer to: *1 (number), a number, a numeral *001, fictional British agent, see 00 Agent *001, former emergency telephone number for the Norwegian fire brigade (until 1986) *AM-RB 001, the code-name for the Aston Martin Valkyrie ...
1 AC 268
This was an exceptional case in contract law, particularly because Blake had harmed the public interest. In addition to his double agency, publication was a further breach of the confidentiality clause, and disclosure of non-confidential information was a criminal offence under the
Official Secrets Act 1911 The Official Secrets Act 1911 (1 & 2 Geo 5 c 28) is an Act of the Parliament of the United Kingdom. It replaces the Official Secrets Act 1889. The Act was introduced in response to public alarm at reports of wide-scale espionage, some of them ...
. An absolute rule against disclosure was necessary to ensure that the secret service was able to deal in complete confidence. It was in the Crown's legitimate interest to ensure Blake did not benefit from revealing state information. The House of Lords ruled that normal contractual remedies of
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
,
specific performance Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. It is typically available in the sale of land law, ...
or
injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...
were not enough, and that the publishers should pay any money owing to Blake to the Crown.


Nicholls' judgment

In his judgment,
Lord Nicholls Donald James Nicholls, Baron Nicholls of Birkenhead, (25 January 1933 – 25 September 2019) was a British barrister who became a Law Lord (Lord of Appeal in Ordinary). Biography Nicholls was educated at Birkenhead School, before reading ...
states that a breach of contract allows for the award of damages "when no financial loss flows from the infringement", comparing the present case to that of a case concerning the duty owed by a trustee or fiduciary. Highlighting the fact that "trustees and fiduciaries are financially disinterested in carrying out their duties... to this end they must not make any unauthorised profit," and that trustees and fiduciaries are accountable for "unauthorised profits", regardless of whether the beneficiaries have made a loss, he compared the current case to
Reading v. Attorney General ''Reading v Attorney-General'' [1951UKHL 1is an English trusts law case, concerning constructive trusts. Facts Mr Reading was stationed in Egypt as an army sergeant. Smugglers paid him to ride in their lorries, while they were doing their smuggl ...
[1951] AC 507, a case that involved a breach concerning another civil servant. Invoking the Chancery Amendment Act 1858, he stated that the court had a jurisdiction to "award damages when declining to grant equitable relief" in equity rather than in common law. Whilst "the common law courts' jurisdiction to award damages was confined to loss of injury flowing from a cause of action which had accrued before the writ was issued", equity allowed for "damages for loss of a bargaining opportunity or... the price payable for the compulsory acquisition of a right." Outlining the law on remedies for breach, Nicholls states that damages are generally compensatory as per
Robinson v Harman ''Robinson v Harman'' (1848) 1 Ex Rep 850 is an English contract law case, which is best known for a classic formulation by Parke B (at 855) on the purpose and measure of compensatory damages for breach of contract that, Facts Mr Harman wrot ...
. However, damages awarded based on an innocent party's financial loss may not always be "adequate", recognising a party's interest in performance, as in the case of Wrotham Park damages. Whilst the Wrotham Park case concerned strictly property rights, the law had recently been extended to include personal rights in contract as well. Additionally, Nicholls diverged from some cases in allowing for plaintiffs, depending on the situation, to not only recoup profits already made from a breacher of contract but to claim all future profits as well. He states that a breach of confidence is an exceptional situation that allows for an injured party to claim "either compensatory damages or an account of the wrongdoer's profits", that only in similarly exceptional situations where ordinary remedies are inadequate "that any question of accounting for profits will arise", and that the allowing of such claims will require the court to regard: On policy reasons, Nicholls states that the present case is one where a claim for profits made can be allowed:


Steyn's judgment

Lord Goff and Lord Browne-Wilkinson agreed.
Lord Steyn Johan van Zyl Steyn, Baron Steyn, PC (15 August 1932 – 28 November 2017) was a South African-British judge, until September 2005 a Law Lord. He sat in the House of Lords as a crossbencher. Early life and education Steyn was born in Stellen ...
gave a concurring opinion:


Hobhouse's dissenting judgment

Lord Hobhouse dissented. He asserted that the Crown had no proprietary right to the money and as such had suffered no loss so as to receive restitutionary damages. Instead, he argued that compensatory damages, not a full account of profit, were appropriate:


See also

;Termination and restitution cases *''
Ruxley Electronics & Construction v Forsyth ''Ruxley Electronics and Construction Ltd v Forsyth'' 995UKHL 8is an English contract law case, concerning the choice between an award of damages for the cost of curing a defect in a building contract or (when that is unreasonable) for awarding ...
''
996 Year 996 ( CMXCVI) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Japan * February - Chotoku Incident: Fujiwara no Korechika and Takaie shoot an arrow at Retired Em ...
AC 344 *''
Experience Hendrix LLC v PPX Enterprises Inc ''Experience Hendrix LLC v PPX Enterprises Inc'' 003EWCA Civ 323is an English contract law case, concerning the availability of restitution damages for breach of contract. Facts Experience Hendrix LLC was the successor in title to Jimi Hendri ...
'' EWCA Civ 323
[2003">003
EWCA Civ 323
[20031 All ER (Comm) 830 ;Trusts cases *''Keech v Sandford'' (1726) 25 ER 223 *''Boardman v Phipps'', the strict fiduciary duty in English trusts law to have no possibility of a conflict of interest


Notes


References

*''World Wide Fund for Nature v World Wrestling Federation Entertainment Inc'' [2007
EWCA Civ 286
*''Nottingham University v Fischel'' [2000
EWHC 221 (QB)
[2000] IRLR 471, where an employee was held to be under no ''general'' fiduciary duty to refrain from undertaking outside private clinic work, but did breach a fiduciary duty where he had directed junior university staff to assist him in that outside work. The latter created a conflict of interest, whereas the former did not since patients would not have used the University's services. *{{Cite AustLII, HCA, 64, 1984, litigants=
Hospital Products Ltd v United States Surgical Corporation A hospital is a health care institution providing patient treatment with specialized health science and auxiliary healthcare staff and medical equipment. The best-known type of hospital is the general hospital, which typically has an emergency ...
, parallelcite=(1984) 156
CLR CLR may refer to: * Calcium Lime Rust, a household cleaning-product * California Law Review, a publication by the UC Berkeley School of Law * Tube_bending, Centerline Radius, a term in the tubing industry used to describe the radius of a bend * Cen ...
41 , date=25 October 1984 , courtname=auto, a senior executive of an American company, Mr Blackman, was held liable to pay heavy compensation for breach of contract for copying the invention of the company when he found it was unpatented in Australia. But, the Australian High Court held Mr Blackman (and his company, Hospital Products Ltd) was not liable to disgorge profits unless some "fiduciary" relationship could be identified. Deane J dissented, holding there could be an account of profits. The dissent was approved by
P Birks Peter Brian Herrenden Birks (3 October 1941 – 6 July 2004) was the Regius Professor of Civil Law at the University of Oxford from 1989 until his death. He also became a Fellow of the British Academy in 1989, and an honorary Queen's counsel i ...
, 'The Content of Fiduciary Obligation' (2000) 34 Israel Law Review 3, 22 *''Adras Building Material Ltd v Harlow & Jones GmbH''
995 Year 995 (Roman numerals, CMXCV) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Japan * 17 May - Fujiwara no Michitaka (imperial regent) dies. * 3 June: Fujiwara no ...
RLR 235, Israel Supreme Court holds a person liable for account of profits after breach of an employment contract


External links


Full text from Bailii
English contract case law English remedy case law House of Lords cases 2000 in case law 2000 in British law