West Law Report


Posted in Westlaw Reports by mrkooenglish on July 23, 2008

Queen’s Bench Division Eady J July 3, 2008 Confidentiality – Confidentiality agreements – Safeguarding information – Special forces – Unauthorised public disclosures – Contractual obligation to seek express prior authority in writing

Last Updated: 6:41PM BST 23 Jul 2008


The claimant Ministry of Defence brought proceedings against the defendant former soldier (G) alleging that he was in breach of a confidentiality agreement and an equitable duty of confidence. G had served in the United Kingdom Special Forces (UKSF). As part of his application to join the UKSF, G was required to sign a confidentiality agreement. The agreement provided, amongst other things, that G would not disclose any information, document or other article relating to the work of the UKSF without express prior authority in writing from the ministry. The ministry’s complaint was that G, since his discharge from the UKSF, had made a number of unauthorised public disclosures and statements in respect of matters which he experienced or which came to his knowledge through his service with the UKSF. At no point did G approach the ministry in order to seek express prior authority for his disclosures. The issue was whether G was permitted to exercise his own judgment in deciding what information was covered by his duty of confidence, whether contractual or otherwise.


Whether G was permitted to exercise his own judgment in deciding what information was covered by his duty of confidence.

HELD (judgment for claimant)

It was important to remember that the relief sought by the ministry was not a blanket ban on G’s right to publish relevant information, but only to require him to go through the clearance procedure prescribed by the contract. The court was being asked to do no more than enforce the terms of a contract which had been held by previous authority to be enforceable, R v Attorney General of England and Wales [2003] UKPC 22, [2003] EMLR 24 applied. What was critical in the instant case was that under the contractual arrangements, the ministry had a right, at least in the first instance, to make judgments as to any proposed disclosure. In the background was a safeguard, where appropriate, of an application for judicial review. Some of what G had revealed was anodyne and most was general in nature. Also, similar allegations of wrongdoing had been canvassed publicly in the past. However, it did not matter what the court thought. What was important was that the right to make that judgment was reserved under the contractual framework to be made by those more qualified, or at least more experienced, in the field. G must comply with his contractual obligation in the event that he wished to make further disclosures and make an application for express prior authority in writing. It might not succeed. Nevertheless, G’s plain obligation was to make an application for prior authority first and then, if necessary, consider the possibility of an application by way of judicial review. The court was bound to continue the terms of an existing injunction against G until trial or further order.

Robin Tam QC, Martin Chamberlain and Oliver Sanders (instructed by Treasury Solicitor) for the claimant. Keir Starmer QC and Alex Bailin (instructed by Leigh Day & Co) for the defendant.


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