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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Imutran Ltd v. Uncaged Campaigns Ltd & Anor [2001] EWHC Ch 31 (11th January, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2001/31.html Cite as: [2001] CP Rep 28, [2001] ECDR 16, [2001] EMLR 21, [2001] 2 All ER 385, [2002] FSR 2, [2001] HRLR 31, [2001] EWHC Ch 31 |
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IN THE HIGH
COURT OF JUSTICE CHANCERY DIVISION |
Case
No. HC 0004406
|
BEFORE: THE VICE-CHANCELLOR
BETWEEN:
Claimant
|
||
-and-
|
||
(1)
UNCAGED CAMPAIGNS LIMITED
(2) DANIEL LOUIS LYONS |
Defendants
|
Mr. Mark
Warby (instructed by Messrs Eversheds) appeared on behalf of the claimant.
Mr. David Bean Q.C. (instructed
by Messrs Simons Muirhead & Burton) appeared on behalf of the defendants.
Mr. Michael Tugendhat
Q.C. (instructed by Messrs. Olswangs) appeared for the RSPCA as interveners..
This is an approved judgment of the Court and I direct that no further note or transcript be made.
The Vice Chancellor Dated: 11th January 2001
1. This is an application
by the claimant, Imutran
Ltd ("
Imutran
"), for injunctions until trial or further
order restraining the defendants, Uncaged Campaigns Ltd ("UCL") and Mr Lyons,
from misusing confidential information of
Imutran
or from infringing the copyright
of
Imutran
. An interim injunction was granted by Hart J on 26th September 2000.
That injunction was continued, but in modified terms, by Ferris J on 10th October
2000. Also before me is an application by RSPCA for an order that its costs
of obtaining such modification should be paid by
Imutran
.
2. Imutran
is the wholly
owned subsidiary of Novartis Pharma AG, a Swiss owned international pharmaceutical
company. It was engaged in research into xenotransplantation, that is to say
the replacement of human organs with those of animals, usually pigs. Most of
such research was carried out at Huntingdon Life Sciences. On 26th September
2000 Novartis Pharma AG announced that such research would, with effect from
1st January 2001, be carried on by a joint venture company in Boston, Massachusetts,
USA to which the intellectual property rights and know-how of
Imutran
would
be transferred.
3. Research into xenotransplantation necessarily involves experimental work on animals. As such it is regulated by Animals (Scientific Procedures) Act 1986. That Act provides for the licensing of personnel (s.4), projects (s. 5) and scientific establishments (s.6) without which the carrying out of prescribed procedures is unlawful (s.3). The Act also provides for the appointment by the Home Secretary of Inspectors with medical or veterinary qualifications (s.18) and an advisory committee called the Animal Procedures Committee (s.19). The duties of the inspectors include advising the Home Secretary on the grant of the various licences, checking on licensed projects and scientific establishments and reporting to him on any cases where the conditions imposed on the grant of a licence have not been performed or observed (s.18(2)). The functions of the Animal Procedures Committee include advising the Home Secretary on such matters concerned with the Act as they may determine (s.20(1)). The duties imposed on the Home Secretary by the Act include the duty, when considering an application for a project licence, to weigh the likely adverse effects on the animals concerned against the benefit likely to accrue as a result of the proposed project (s.5(4)).
4. In addition to the regime prescribed by the Animals (Scientific Procedures) Act 1986 there is the United Kingdom Xenotransplantation Interim Regulatory Authority ("UKXIRA") and the Good Laboratory Practice Monitoring Authority ("GLPMA"). The former was set up following the report "Animal Tissue into Humans" of the Advisory Group under the Chairmanship of Professor Ian Kennedy on The Ethics of Xenotransplantation. Its terms of reference include advising the Secretary of State for Health generally and on the safety and efficacy of xenotransplantation and considerations of animal welfare involved in it in particular. GLPMA is a constituent body of the Department of Health which administers the Good Laboratory Practice Regulations. They are designed to ensure that experimental data provided by scientific establishments to regulatory bodies are reliable.
5. In 1993 Mr Lyons obtained from Sheffield University an honours degree in Politics and Philosophy. He is currently a part time student for a PhD in the subject area of the ethical and political theory implications of xenotransplantation. He is a director of UCL which is a company limited by guarantee the aim of which is to campaign democratically and peacefully for a cessation of animal experimentation and for an end to violence towards animals generally. In 1996 UCL launched a campaign against xenotransplantation in pursuit of which Mr Lyons has submitted papers to the Secretary of State for Health and others, has attended meetings with ministers and the various regulatory bodies I have mentioned and has organised petitions to be submitted to the Secretary of State. The honesty of Mr Lyons' belief and purpose has not been challenged in these proceedings. The evidence shows that many others share his views. Whether as a result of the defendants' activities or otherwise on 17th July 2000 the House of Lords set up an ad hoc Select Committee to enquire into the use of animals in scientific experiments.
6. In the spring 2000 UCL
received a package and a CD-ROM containing copies of a large number of documents
belonging to Imutran
Mr. Lyons does not know who sent them. But, on examination,
Mr Lyons quickly realised that the documents emanated from
Imutran
and mainly
concerned its programme of primate xenotransplantation being conducted at Huntingdon
Life Sciences. Over the following months Mr Lyons studied these documents and
sought to reconcile them with other documents or information already available
to the public. He considered that the documents raised extremely serious questions
concerning animal welfare, the regulation of research by the Home Office, the
Standards of Good Laboratory Practice achieved during the research, its lack
of success and the accuracy of the information on xenotransplantation conveyed
by
Imutran
. He also appreciated that the documents UCL had received from the
unknown source were confidential.
7. Basing himself on all
these documents Mr Lyons wrote "Diaries of Despair: The Secret History of Pig-to-Primate
Organ Transplants". It consists of 157 pages using the information contained
in or quoting from Imutran
's documents obtained from the unknown source. Those
documents are described as "a staggering haul of secret documents", "confidential
documents" and "leaked internal company documents".
8. The documents fall into five categories. They are:
(1) 39 laboratory reports,
covering 3,400 pages, of scientific tests conducted by Huntingdon Life Sciences
on behalf of Imutran
;
(2) Minutes of meetings
between representatives of Imutran
and Novartis at which developments were
reviewed and in which are set out the names of certain employees of
Imutran
;
(3) Correspondence with
Imutran
's research partners;
(4) Correspondence with
Imutran
's suppliers;
(5) Correspondence with the Home Office and MAFF.
The five classes of document
have been analysed by Imutran
as containing confidential information falling
into seven specified categories. I did not understand UCL or Mr Lyons to challenge
either the classes of document or the analysis of the confidential information.
9. On 19th September 2000
a journalist with the Daily Express faxed to Imutran
three specific questions
concerning its programme of xenotransplantation to which
Imutran
replied. On
21st and 22nd September articles appeared in the Daily Express commenting adversely
on
Imutran
's programme. They were based on the Diaries of Despair. On 21st September
Imutran
learned that the Diaries of Despair and most of its documents in the
possession of UCL had been published by UCL on its website. That and other websites
were closed down by the relevant service providers on 22nd September and subsequent
days.
10. As I have already indicated
Hart J made an interim order on 26th September. He had heard counsel for Imutran
and the solicitor for UCL and Mr Lyons. The injunctions over 10th October restrained
UCL and Mr Lyons from infringing
Imutran
's copyright in its documents and from
using or disclosing information contained in or derived from specified confidential
documents. But the provisos attached to the injunctions excepted from the prohibitions
(1) the supply of documents or information to UKXIRA, ministers at the Home
Office or personnel at the Home Office having responsibility for regulating
or supervising animal experimentation or (2) the further use or disclosure of
information contained in either of the articles appearing in the Daily Express
published on 21st or 22nd September 2000.
11. When the order was continued
by Ferris J on 10th October 2000 the first proviso was extended to members of
the Animals Procedures Committee and GLPMA and a further proviso was added permitting
reproduction, use or disclosure by RSPCA in accordance with the terms of Schedule
5 to the order. With regard to the costs of RSPCA both RSPCA and Imutran
were
given liberty to apply.
12. The application first
came before me on 18th October 2000. The night before the solicitors for UCL
and Mr Lyons had indicated that their clients would be prepared to limit their
future publications to Diaries of Despair and 56 other specified pages. On the
application of Imutran
I adjourned the hearing of the application and ordered
the return of all the other documents by UCL to
Imutran
. In addition I ordered
Imutran
to provide to UCL and Mr Lyons details of its objections to the publication
of the remainder; UCL and Mr Lyons were to respond in writing to those objections.
The defendants returned the requisite documents and
Imutran
provided details
of its objections. But the defendants considered that the objections were so
extensive as to make further discussion futile. Accordingly with the exception
of the names and addresses of employees the defendants seek to publish and
Imutran
seeks to prevent the publication of all the documents provided to the defendants
from the unknown source. They include all those previously published on the
internet and others.
13. In consequence of the
provisos to the various orders all the relevant documents have been provided
to all interested regulatory authorities. The RSPCA has called for a report
on the situation revealed by the documents of Imutran
from Dr Jennings, the
head of its animal research department. GLPMA received and considered a copy
of Diaries of Despair. The Home Secretary has asked the Chief Inspector to examine
the compliance by
Imutran
with the conditions imposed on the grant of the various
licences needed under the Animals (Scientific Procedures) Act 1986. He expects
to receive the Chief Inspector's findings and advice in the New Year. All such
reports and findings will be available to the House of Lords Select Committee
to which I referred earlier.
14. As I have indicated
the causes of action on which Imutran
relies are (1) breach of confidence and
(2) infringement of copyright. Relevant to both those issues is the question
(3) what is the proper approach of the court to an application for interim injunctions
such as this in which the right to freedom of expression guaranteed by Article
10 European Convention on Human Rights is material. This depends on the proper
construction and application of s.12 Human Rights Act 1998. It is convenient
to deal with this issue first.
15. Until the decision of the House of Lords in American Cyanimid Co. v Ethicon Ltd [1975] AC 396 it was generally considered that an applicant for interlocutory relief had to show a strong prima facie case. Cf Hubbard v Vosper [1972] 2 QB 84, 96. In American Cyanimid Co. v Ethicon Ltd the House of Lords substituted for the strong prima facie case the concept of "a serious question to be tried" or "a real prospect of succeeding in his claim to a permanent injunction at the trial". That threshhold test is amplified in cases in which the grant or refusal of an interim injunction would have the practical effect of putting an end to the action. In such a case the strength or otherwise of the claimant's case (in excess of the threshhold of a serious question to be tried) must be brought into the balance in weighing the risk of injustice to either party by the grant or refusal of the injunction sought. NWL Ltd v Woods [1979] ICR 867. It is against that background that s.12 Human Rights Act 1998 must be considered.
16. So far as material s.12 Human Rights Act 1998 provides:
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
[2]
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression...
Two issues were raised before me. The first is whether the requirement in subsection (3) that the applicant "is likely to establish" at the trial that publication should not be allowed alters the threshhold test established by American Cyanamid in relation to cases to which s.12 applies. The second is whether the provisions of subsection (4) require the court to place special and extra weight on the Convention right to freedom of expression. I will deal with them in turn.
17. Counsel for the defendants
submitted that the requirement of likelihood imposed a higher standard than
that formulated in American Cyanamid. I did not understand this to be
disputed by counsel for Imutran
. He submitted that whatever the standard was
his case satisfied it. Theoretically and as a matter of language likelihood
is slightly higher in the scale of probability than a real prospect of success.
But the difference between the two is so small that I cannot believe that there
will be many (if any) cases which would have succeeded under the American
Cyanamid test but will now fail because of the terms of s.12(3). Accordingly
I propose to apply the test of likelihood without any further consideration
of how much more probable that now has to be. See Douglas v Hello! Ltd
[Court of Appeal: 21st December 2000 paras 153, 54 and 136]
18. In the case of subsection (4) it must be borne in mind that the courts emphasised the importance of freedom of expression or speech long before the enactment of Human Rights Act 1998. See Halsbury's Laws of England 4th Ed.reprint vol 8(2) para 107 and cases there cited. But neither those cases nor the provisions of s.12(4) require the court to treat freedom of speech as paramount. There are many reported cases in which the court has had to balance freedom of expression or speech with other aspects of the public interest. See also Snell's Equity 30th Edition para.45-75.
19. In those circumstances I do not consider that the subsection is intended to direct the court to place even greater weight on the importance of freedom of expression than it already does. As I said in paragraph 34 of my judgment in Ashdown v Telegraph Group Ltd the requirement "to pay particular regard" contemplates specific and separate consideration being given to this factor.
20. I turn then to the claim for breach of confidence. I have been referred to the well known line of cases consisting of Initial Services v Putterill [1968] 1 QB 396; Hubbard v Vosper [1972] 2 QB 84; Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892; Lion Laboratories Ltd v Evans [1985] QB 526; Re A Company's Application [1989] Ch 477 and A-G v Observer Ltd [1990] 1 AC 109. Each of them demonstrates that the public interest in disclosure may outweigh the right of the plaintiff to protect his confidences. They demonstrate that the court will also consider how much disclosure the public interest requires; the fact that some disclosure may be required does not mean that disclosure to the whole world should be permitted.
21. In addition Human Rights Act 1998 requires the court, as a public authority, to take into account the right of freedom of expression conferred by Article 10 European Convention on Human Rights. That provides
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The effect of that article for present purposes is that any injunction, which by definition is a restriction on the exercise of the right to freedom of expression, must be justified as being no more than is necessary in a democratic society.
22. For the defendants,
counsel emphasised that the activities of Imutran
which they abhor have now
ceased. He suggested that
Imutran
was concerned to protect its reputation not
its confidential information. He argued that, in the light of the defendants'
concerns summarised in paragraph 6 above, disclosure limited to any "proper
authority", as exemplified in Employment Rights Act 1996 ss.43A to 43L, would
be insufficient. He suggested at the conclusion of his submissions that the
defendants should at least be free to publish Diaries of Despair and the 56
other documents to which they had referred on 17th October 2000.
23. I do not accept these
submissions. First, the information contained in the documents received by the
defendants from the anonymous sender are in their nature confidential. Second,
there can be no doubt that the defendants knew that the information contained
in those documents was confidential. Not only were many of them so marked but
the defendants recognised and described them as confidential or secret in Diaries
of Despair. Third, in the absence of any claim, or evidence to support a claim,
that Imutran
knew and consented to the documents being provided to the defendants
I infer that the defendants well knew that
Imutran
had not known or consented
to its documents being removed from its possession and sent to the defendants.
Certainly they took no steps to check with
Imutran
whether or not that was the
case.
24. Fourthly, the circumstances
as they existed in September 2000 and now do not justify the width of disclosure
the defendants seek. On 17th July 2000 the House of Lords set up its ad hoc
Select Committee to enquire into the very matters which concerned the defendants.
Since the defendants put Imutran
's documents on the internet the Home Secretary
and the Council of RSPCA have called for reports from the Chief Inspector and
Dr Jennings respectively. In so far as GLPMA and UKXIRA are concerned the documents
obtained by the defendants have been available to them too. There is no impediment
sought or in place such as to inhibit any regulatory authority from investigating
all the matters of which the defendants expressed concern in Diaries of Despair.
25. Fifthly, when considering what is necessary in a democratic society and when paying particular regard to the importance of the right to freedom of expression it is relevant to consider which is the democratically selected responsible body or bodies and who would be the informed audience. In this case Parliament has considered the issue of animal experimentation as recently as 1986. It has laid down a licensing and inspection system and a forum for and source of continuing consideration and advice in the Animal Procedures Committee. The members of that committee are themselves bound to consider the protection of animals against avoidable suffering and unnecessary use in scientific procedures (s.20(2)). Two thirds of them must be medically qualified (s.19(3)(a)) and their annual report to the Home Secretary must be laid before Parliament (s.20(5)). In addition there is the RSPCA, GLPMA and UKXIRA all of whom have an interest in investigating one or more of the matters which concern the defendants.
26. Of course, the defendants'
right to freedom of expression is an element in their democratic right to campaign
for the abolition of all animal xenotransplantation or other experimentation.
But they may continue to do that whether the injunction sought by Imutran
is
granted or not. The issue is whether they should be free to do so with
Imutran
's
confidential and secret documents. Many of those documents are of a specialist
and technical nature suitable for consideration by specialists in the field
but not by the public generally. Given the provisos to the injunction sought
there would be no restriction on the ability of the defendants to communicate
the information to those specialists connected with the regulatory bodies denoted
by Parliament as having responsibility in the field. I do not accept in these
circumstances the defendants' assertion that the relationship between
Imutran
and the Inspectors appointed by the Home Secretary is too close for the latter
to do their job properly. If that was ever so, and there is no evidence to that
effect, it is unlikely to continue given the current interest of the House of
Lords Select Committee and the Home Secretary's instruction of the Chief Inspector.
27. For all these reasons
I conclude that Imutran
is likely to establish at the trial of the action that
publication of its confidential documents should not be allowed. I also conclude
that the injunction sought does not go further than is necessary in a democratic
society. Paying particular regard to the importance of the right to freedom
of expression I conclude nevertheless that the balance of convenience favours
the grant of the injunction sought. If no injunction is granted now victory
at the trial would be no consolation; the confidence would be destroyed and
the consequential damages entirely unquantifiable even if the defendants were
able to pay them. By contrast if the defendants were successful at the trial
they would then be able to publish anything they liked with the added benefit
of knowing the views of the regulatory bodies and their experts. There is no
suggestion that the delay in establishing their right, which I have to assume
for the purposes of this point, will cause them any damage at all. Accordingly
I will grant the injunction sought to restrain breach of confidence.
28. I pass then to the application
for an interim injunction based on infringement of copyright. This claim relates
only to those of the documents relating to Imutran
which the defendants received
from the unknown source which were written by employees of
Imutran
. There are
79 of them of which 77 were published on one or more of the websites the defendants
used. They have been specifically identified in the analysis
Imutran
prepared.
Though on the pleadings there is a formal issue in relation to copyright there
is no evidence to refute the obvious conclusion to be derived from the documents
themselves that each of them is a copyright work of which the owner of the copyright
is
Imutran
as the employer of the various authors. Nor, given the wholesale
reproduction of them, can it be doubted that
Imutran
's copyright in the 77 has
been infringed or that there is a sufficient threat to infringe copyright in
the remaining two.
29. In their defence the defendants rely on the defence of fair dealing for which s.30 Copyright, Designs and Patents Act 1988 ("CDPA") provides. But, as their counsel made plain in his written argument, they are content that this application should be determined on the assumption that such a defence will not succeed. Accordingly the only defence to the claim for copyright infringement is that contained in paragraph 13 of the defence served on 13th November 2000, namely that the acts complained of did not constitute infringement because they amounted to "the disclosure of matters in the public interest". The defendants rely in this as well as the other contexts on Article 10 of ECHR and s.12(4) Human Rights Act 1998.
30. The existence of a public interest defence to a claim for infringement of copyright is recognised by s.171(3). That subsection provides
"Nothing in this part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise."
It was considered by the Court of Appeal in Hyde Park Residence Ltd v Yelland [2000] 3 WLR 215. In paragraph 66, Aldous LJ, with whom Stuart-Smith LJ agreed said:
"The circumstances where it is against the policy of the law to use the court's procedure to enforce copyright are, I suspect, not capable of definition. However it must be remembered that copyright is assignable and therefore the circumstances must derive from the work in question, not ownership of the copyright. In my view a court would be entitled to refuse to enforce copyright if the work is: (i) immoral, scandalous or contrary to family life; (ii) injurious to public life, public health and safety or the administration of justice; (iii) incites or encourages others to act in a way referred to in (ii)."
31. I did not understand the defendants to claim that this case fell within any of those descriptions even though one of the contentions relied on is the assertion that xenotransplantation involves the danger of lethal viruses spreading to humans (defence para 13(2)(b)). Rather it was submitted that I am not bound by the decision of the Court of Appeal because the Human Rights Act 1998 came into force after Hyde Park Residence Ltd v Yelland was decided. It was submitted in this case as in Ashdown v Telegraph Group Ltd, which I heard immediately before this application, that one effect of Article 10 ECHR is to introduce into the law of copyright a public interest defence to a claim for infringement going much wider than the Court of Appeal held in Hyde Park Residence Ltd v Yelland.
32. I dealt with that submission at some length in paragraphs 10 to 20 and 32 in my judgment in Ashdown v Telegraph Group Ltd, which I handed down immediately before I handed down this judgment. I will not repeat them. For present purposes it is only necessary to repeat the conclusion in paragraph 32 that the decision of the Court of Appeal in Hyde Park Residence Ltd v Yelland is binding on me. That decision establishes that there is no public interest defence to the copyright claim pursuant to the rule of law preserved by s.171(3) CDPA.
33. It follows from the
foregoing conclusions that the cause of action for infringement of copyright
is made out to such an extent that I can say with confidence that on the evidence
before me it is likely that Imutran
will establish that publication by reproduction
should not be allowed. Cf s.12(3) Human Rights Act 1998. Equally, given the
interaction between the law of copyright and Article 10 ECHR as I consider it
to be, the importance of the Convention right to freedom of expression to which
s.12(4) Human Rights Act 1998 requires me to pay particular regard does not
lead to the conclusion that injunctive or other relief in respect of the copyright
claim should be refused.
34. I should refer finally
to an objection taken by the defendants to the form of relief sought. The order
of Ferris J made on 10th October 2000, which Imutran
seeks to have continued,
contains a proviso that the injunctions should not prohibit
"the use or disclosure of information derived from the Claimant's Materials which has entered the public domain by virtue of being contained in articles in the Daily Express on 21 and 22 September 2000"
It is contended that the proviso does not make sufficiently clear what the defendants may not do. The use of such a proviso is common. It is designed to preserve the ability to repeat what has already been sufficiently publicised. It is right that some such proviso should be included, but it does appear to me that this one is unduly convoluted. It would, in my view, be preferable to use the simpler form contained in the order made by Hooper J on 4th September 1997 in A-G v Shayler so that the proviso would read
"PROVIDED THAT these injunctions shall not prohibit
[(1)(2)]
(3) the repetition of information (otherwise than by copying any document described in schedule 1 to this order) disclosed in the Daily Express on 21st and 22nd September 2000."
35. For all these reasons and subject to any further points on the form of order I will make orders in the forms sought by the application to restrain breach of confidence and infringement of copyright.
36. I turn then to the application
of RSPCA. This is made under the liberty to apply given by the order of Ferris
J made on 10th October 2000. The order sought is that Imutran
should be ordered
to pay RSPCA's costs of obtaining a variation of the order of Hart J so as to
permit it to use
Imutran
's documents as provided for in the order of Ferris
J.
37. The order of Hart J,
made on 26th September, contained injunctions restraining the defendants from
infringing copyright and from "using or disclosing" any information contained
in Imutran
's documents specified in the order but subject to the provisos I
have already mentioned. Those provisos did not include RSPCA amongst the authorised
recipients. Hart J also required Mr Lyons to make and serve a witness statement
disclosing the names and addresses of all those who to his knowledge had possession
of any copies of documents emanating from
Imutran
. In his witness statement
made on 27th September 2000 Mr Lyons disclosed that he had sent copies of all
the relevant documents to, amongst many others, RSPCA.
38. On Friday 29th September
Imutran
wrote to RSPCA notifying them of the order of Hart J, of which a copy
was enclosed, and continuing
"We have taken this step to protect commercially sensitive scientific data and other commercially confidential information. We are advised to inform you that we will continue to take whatever steps are necessary to prevent further dissemination of our confidential information.
We wish to make clear however that we do not seek to stifle public debate about xenotransplantation, or to obstruct in any way proper investigation by the appropriate authorities of allegations which have been made about this company's activities. As you will see the Order contains exceptions, permitting the republication of information already made public through articles in the Daily Express, and the communication of documents and information to the proper authorities. We confirm that we will be pleased to continue our on-going discussion and are willing to co-operate and assist any investigation you are required or consider it appropriate to make. In that regard we ask you to note that the documents that were misappropriated are unlikely to provide a full and complete version of the events referred to within the said "Diaries of Despair".
On the following Monday
2nd October Imutran
sent e-mails to over 360 persons or organisations disclosed
by the witness statement of Mr Lyons to have been recipients of
Imutran
's documents.
RSPCA was one of those to whom the e-mail was sent. It stated
"On Tuesday 26 September 2000 our lawyers obtained a Court Order preventing the publication of our confidential information and infringement of our copyright. The purpose of this letter is to notify you of that Order and to inform you that we will take whatever steps are necessary to prevent further illegitimate dissemination of our confidential information and infringement of our copyrights.
You are hereby put on notice of that Court Order and further dissemination by you could be treated as contempt of Court."
The letter of 29th September must have been received on Monday 2nd October contemporaneously with the e-mail sent at 10.48 on that day.
39. Between Wednesday 4th
October and Monday 9th October correspondence ensued between Imutran
and RSPCA
or their respective solicitors. On 4th October RSPCA set out at length its concerns
for animal welfare. The letter described how it had downloaded from the UCL
website copies of
Imutran
's documents and had asked Dr Jennings for a report
in time for the Council meeting to be held on 11th October. The letter suggested
the topics Dr Jennings would be likely to cover in her report and continued
"Following receipt of Dr. Jennings' report, it would be for the Council to consider whether they needed further information and whether they should seek to make representations to Home Office officials or the Government that amendments are needed to the relevant legislation or to the procedures under the legislation. They might also consider whether to seek publicity and public support for any such proposals. The full report prepared by Dr. Jennings would be likely to be used in discussions with the Home Office or the Government and to be sent to key opinion formers such as Members of Parliament and a summary prepared for wider use.
We believe that the court will be sympathetic to our desire to fulfil our charitable objects in this way, however, naturally we would prefer to be able to do so without the delay and expense of having recourse to the court. Accordingly, we would be grateful if you could confirm, by close of business today, that you have no objection to our proposed use of your material.
For the avoidance of doubt, we are not proposing to infringe copyright in any of "the Claimant's Copyright Documents" or to name or reveal any other identifying information in relation to your employees, ex-employers and associates."
The letter concluded with
an offer to consider any further material Imutran
might like to submit.
40. On the following day
the solicitors for RSPCA wrote again confirming a telephone call concerning
the request of RSPCA for copies of the evidence relied on by Imutran
before
Hart J. The letter stated that
"The request was made on the basis that it is clearly your intention that our client is bound by the order. As you know, our client wishes to challenge the order either by agreement with your client or in court and they are legally entitled to know the basis on which the injunction was made. Our client clearly needs to see your client's witness statement and exhibits."
On 6th October the solicitors
for RSPCA wrote objecting in the "strongest possible terms" to the failure of
Imutran
to supply them with the evidence sought. This letter crossed with one
from the solicitors for
Imutran
enclosing a copy of the witness statement of
Mr Talbot made in support of the application before Hart J and asking for undertakings
as to confidentiality in respect of the exhibits. They added
"We have noted what you say about the RSPCA's wish to commission a report from Dr. Jennings. Whilst our clients remain willing to co-operate with any investigation which the RSPCA considers it appropriate to make, our clients need the RSPCA's assurances that it will fully consult with our clients in relation to its investigation and that if our clients agree to the RSPCA using the documents in question the RSPCA will undertake not to publish or otherwise disseminate the documents."
By a letter dated Monday 9th October an acceptable undertaking was given by RSPCA in exchange for which the exhibits were provided.
41. Between the receipt
by RSPCA of the exhibits and the sitting of the court the next morning counsel
for Imutran
and RSPCA had agreed a form of amendment to the order of Hart J
made on 26th September. The form the amendment took was not a simple addition
of RSPCA to the list of authorised recipients, but involved the addition of
a further proviso entitling RSPCA to reproduce, use or disclose
Imutran
's material,
as defined, in accordance with a new Schedule 5. That schedule contained detailed
provisions in relation to the preparation of Dr Jennings' report and what might
then be done with it, including a requirement that a draft thereof be sent to
Imutran
. An order containing this agreed form was made by Ferris J on 10th October.
42. For RSPCA it was submitted
that Imutran
should pay their costs of obtaining an order in the amended form.
It was submitted that the order of Hart J was defective in that it did not except
use of the
Imutran
material by RSPCA notwithstanding that
Imutran
did not object
to such use. It is suggested that, as with the normal practice in connection
with freezing orders, an innocent third party should recover its costs from
the person who obtained the order if it is necessary to make an application
to the court. Counsel suggested that the normal form of breach of confidence
order should contain a standard proviso modelled on that contained in the form
of freezing order set out on page 462 of Civil Procedure Autumn 2000 Vol 1 whereby
the applicant should undertake to the court
"to pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order and if the court later finds that this order has caused such person loss and decides that such person should be compensated for that loss, the applicant will comply with any order the court may make"
43. I do not accept either
submission. With regard to this case RSPCA was in no different position to anyone
else who had come into possession of the Imutran
documents. It did not have
any right to use them otherwise than with the consent of
Imutran
. The fact that
Imutran
was prepared to give its consent on terms does not alter the fact that
its consent was required. Therefore the premise to the argument for RSPCA that
it had the right to use the documents which had been improperly interfered with
by the injunction granted by Hart J on 26th September is false.
44. But it remains the case
that RSPCA did appear in court on 10th October and the costs of that appearance
are in the discretion of the court. But I see no reason for making any order
in its favour. The attitude of Imutran
regarding RSPCA was entirely proper throughout.
The letters from RSPCA or its solicitors dated 4th and 5th October both suggested,
wrongly, that RSPCA had the right to publicise the contents of the
Imutran
documents.
It was reasonable for
Imutran
to insist that disclosure was only on the agreed
terms. And had the solicitors for RSPCA adopted a less hustling approach I have
no doubt that the matter would have been dealt with by agreement between counsel
without any need for RSPCA to appear in court at all. Given my conclusion that
I should make no order for the costs of RSPCA I need say no more about whether
Imutran should be permitted to add the costs paid to RSPCA to its claim for
damages or costs against the defendants, save to draw attention to Morton-Norwich
Products Inc v Intercen (No 2) [1981] FSR 337 where it was successfully
done. I dismiss the application of RSPCA.
45. With regard to the suggestion as to the normal form of injunction in breach of confidence claims I agree with it. Counsel referred to Para. 5.1 of the Practice Direction to CPR Part 25. This requires the cross-undertaking in damages to be given in respect of "any other party served with or notified of the order". The Practice Direction applies to breach of confidence injunctions as well as any other. But the forms prescribed by Practice Direction (Interlocutory Injunction: Forms) [1996] 1 WLR 1551 limited the cross-undertaking in damages to the defendant and have continued to be recommended for use by the editors of Civil Procedure. See Note 25/1/12 in both the Spring and Autumn 2000 editions. No doubt it was for this reason that the cross-undertaking in the orders made by Hart and Ferris JJ did not extend to the RSPCA. In my view pending the production of amended forms the simple amendment contemplated by paragraph 5.1 of the Practice Direction to CPR Part 25 should be made to the pre-existing forms in the manner suggested by counsel for the RSPCA. But for the reasons I have already given even if the amended form of undertaking had been included in the order of Hart J I do not consider that the RSPCA should have been entitled to recover under it. Further the omission appears to me to be of no importance in this case as the jurisdiction of the court under s.51 Supreme Court Act 1981 and CPR 48.2 would have been more than adequate to do justice between the claimant and RSPCA had I considered that an order in favour of RSPCA should have been made.
46. For all these reasons I will make the orders sought against the defendants but I will make no order for costs in favour of RSPCA.