I shall first set the scene by noting how the court approaches the question of financial recompense for interference with rights of property. James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellee. The order will have the effect of preventing the money being paid to Blake. These observations are almost banal: the public would be astonished if it was thought that judges did not conceive it as their prime duty to do practical justice whenever possible. The accountability of the army sergeant in Reading v. Attorney General  AC 507 is a familiar application of this principle to a servant of the Crown. This is the judgment of the Court to which all the members of the Court have contributed. Then the breach is irreversible. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. But the Crown did not apply for an injunction at the time it would have done some good and quite probably stopped the publication of the book. court for decision, although there was some discussion of Wrotham Park in Attorney General v Blake  1 AC 268. Such awards are probably best regarded as an exception to the general rule. It would be unreasonable for the plaintiff to incur that expense. For him a financially assessed measure of damages is inadequate. Blake has made a financial gain but he has not done so at the expense of the Crown or making use of any property of or commercial interest of the Crown either in law or equity. Mr Gauntlett seeks to rely on the following principal decisions for the proposition that reverse onus provisions are constitutional: Freiremar SA v Prosecutor-General of Namibia 1996 NR 18 (HC); S vChogugudza1996 (1) ZLR 28 (H); S v Meaker 1998 (2) SACR 73 (WLD), and the minority judgment of Kentridge JA in Coetzee.These cases will be dealt with more fully later on in this judgment. Then there are rights recognised in equity such as those which arise from a fiduciary relationship. Now that he had an asset within the jurisdiction, that at least should be withheld from him; the asset had a connection with the crimes which he had committed. 84. The Attorney General's entitlement to an account of Blake's profits does not, in this case, confer on the Crown any proprietary interest in the debt due to Blake from Jonathan Cape. Equity reinforces the duty of fidelity owed by a trustee or fiduciary by requiring him to account for any profits he derives from his office or position. In making this claim the Attorney General asserted, not a private law right on behalf of the Crown, but a claim for relief in his capacity as guardian of the public interest. I agree with it and for the reasons which he gives I would dismiss this appeal but vary the order of the Court of Appeal to declare that the Attorney-General is entitled to be paid a sum equal to whatever amount is due and owing to Blake from Jonathan Cape under the publishing agreement of 4 May 1989. In the present case the Crown seeks to go further. … Secondly, I bear in mind that the enduring strength of the common law is that it has been developed on a case-by-case basis by judges for whom the attainment of practical justice was a major objective of their work. A property right has value to the extent only that the court will enforce it or award damages for its infringement. It has attracted criticism from academic commentators and also in judgments of Sir Thomas Bingham M.R. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. v Attorney-General  SGHCF 18 High Court (Family Division) — District Court Appeal No 2 of 2018 Sundaresh Menon CJ, Judith Prakash JA and Debbie Ong J 17–18 July 2018 17 December 2018 Judgment reserved. But these remedies are not always available. That is confiscation in substance, if not in form. 453. However, it is not easy to see why, as between the parties to a contract, a violation of a party's contractual rights should attract a lesser degree of remedy than a violation of his property rights. Professor Burrows has described this as a devilishly difficult topic: see 'No Restitutionary Damages for Breach of Contract'  L.M.C.L.Q.R. 408 and Jaggard v. Sawyer  1 W.L.R. The Court of Appeal envisaged the possibility of some use for the unpaid royalties which would not be 'contrary to the public interest.' Under section 1(3) a person who is or has been a Crown servant is guilty of an offence if without lawful authority he makes 'a damaging disclosure' of information relating to security or intelligence. The buyer of a house may be attracted by features which have little or no impact on the value of the house. In this capacity it is open to him to apply for an injunction. It was about �150,000. Interference with rights of property So I turn to established, basic principles. Daraydan Holdings Ltd v Solland International Ltd  3 W.L.R. The Crown does not have the substantive rights to support such remedies. Considered as a matter of principle, it is difficult to see why equity required the wrongdoer to account for all his profits in these cases, whereas the common law's response was to require a wrongdoer merely to pay a reasonable fee for use of another's land or goods. . The decision of the United States Supreme Court in Snepp v. United States (1980) 444 U.S. 507 is instructive. The error comes about because of the assumption that the only loss which the plaintiff can have suffered is a reduction in the value of the dominant tenement. authorities – the English High Court’s judgment in Wrotham Park Estate Co Ltd v Parkside Homes Ltd and Others  1 WLR 798 (“Wrotham Park”) and the decision of the House of Lords in Attorney-General v Blake (Jonathan Cape Ltd Third Party)  AC 268 (“AG v Blake”). I see no reason why, in practice, the availability of the remedy of an account of profits need disturb settled expectations in the commercial or consumer world. The offence is drawn more widely in the case of a present or past member of the security and intelligence services. Typically this occurs where an offence is frequently repeated in disregard of an inadequate penalty: see Gouriet v. Union of Post Office Workers  AC. While recording its view that such a claim, if made, might be sound, the Court of Appeal was powerless to act on that view: at 456B-458B. The way it was put by the Court of Appeal  Ch 439, 464 was: "The ordinary member of the public would be shocked if the position was that the courts were powerless to prevent [Blake] profiting from his criminal conduct." He caused untold and immeasurable damage to the public interest he had committed himself to serve. It is still the enforced performance of an obligation. The law is now sufficiently mature to recognise a restitutionary claim for profits made from a breach of contract in appropriate situations. In some cases equity required the wrongdoer to yield up all his gains. Nationwide News Pty Limited v Rush  FCAFC 115 (2 July 2020) International Journal for Crime, Justice and Social Democracy 2012-Brett Cattle Company Pty Ltd v Minister for Agriculture  FCA 732 (2 June 2020) WorkPac Pty Ltd v Rossato  FCAFC 84 (20 May 2020) Law, Technology and Humans 2019-New South Wales COVID-19 Government Orders 273, sending suitors across London to the common law courts at Westminster Hall. Such awards are probably best regarded as an exception to the general rule. Recent examples are Bracewell v. Appleby  Ch. The context is employment as a member of the security and intelligence services. When he joined the Secret Intelligence Service Blake expressly agreed in writing that he would not disclose official information, during or after his service, in book form or otherwise. However, there is a noticeable absence of any consensus on what are the circumstances in which this remedy should be available. The Crown appealed. of that law only after it has achieved general international recognition. But the plaintiff was entitled to a deeper pool. Attorney General v Blake and the use of restitutionary damages for contractual breach English courts seem to have adopted a similar view to Canada and the United States, prior to the case of Attorney General v Blake, and often forged some relationship (fictional or otherwise) of trust between the claimant and defendant, in order to justify an award of restitution within the domain of contracts. LORD NICHOLLS OF BIRKENHEAD. He was later found out and in 1961 he was, on his own plea, convicted of 5 offences under the 1911 Act and sentenced to 42 years' imprisonment. Typically this occurs where an offence is frequently repeated in disregard of an inadequate penalty: see Gouriet v. Union of Post Office Workers  A.C. 435. But this analysis takes the matter now under discussion no further forward. That is the intention. Neither the security and intelligence services nor any other branch of the Government were aware of the book until its publication was announced. 209, 223J-225E, per May L.J. My Lords, it has been held at first instance and in the Court of Appeal that Blake is not a fiduciary. The same is the case where an injunction is granted or a decree of specific performance or the ordering of an account. Or he could recover the proceeds of the conversion obtained by the defendant: see United Australia Ltd. v. Barclays Bank Ltd.  A.C. 1, 34, per Lord Romer. It is not just the amount (if any) by which his property has a lower market value than that it would have had if the contract had been performed. In British Motor Trade Association v. Gilbert  2 All E.R. Lord Cairns' Act liberated the courts from this fetter. Mr. … Then compensation for the wrong done to the plaintiff is measured by a different yardstick. The Crown is entitled, on the taking of the account, to a money judgment which can then be enforced by attachment of the debt in the usual way. 4, p. 143, pp. Had Blake not signed it he would not have been employed. A trespasser who enters another's land may cause the landowner no financial loss. The court considered that a remedy which required Snepp 'to disgorge the benefits of his faithlessness', was swift and sure, tailored to deter those who would place sensitive information at risk and, since the remedy reached only funds attributable to the breach, it could not saddle the former agent with exemplary damages out of all proportion to his gain. This matter was pursued in your Lordships' House. But these remedies are not always available. As Glidewell L.J. The erection of the larger number of houses had not caused any financial loss to the local authority. But it is right to acknowledge that the academic comment has been critical of the decision in Bredero. I need not pursue the detailed criticisms. 269. In practice, these specific remedies go a long way towards providing suitable protection for innocent parties who will suffer loss from breaches of contract which are not adequately remediable by an award of damages. The State appeals the trial court’s order granting Blake Cowart’s motion to dismiss The category is apt to embrace all express negative obligations. Typically they require the payment of money by the person unjustly enriched to the person at whose expense that enrichment has taken place. Giving to a member of the executive unnecessary powers is never a good idea. Holt C.J. This declaration included an undertaking: This undertaking was contractually binding. The accountability of the army sergeant in Reading v. Attorney General  A.C. 507 is a familiar application of this principle to a servant of the Crown. Attorney General v Blake  UKHL 45 ... for breach of employees’ restrictive covenants ‘The Wrothan Park decision was an exception to what was then the general rule that damages based on the wrongdoer’s gain are not available to remedy a breach of contract.’ On that occasion I remarked that it is not traditional to describe a claim for restitution following a breach of contract as damages. In the present case Blake's disclosure of the information in his autobiography to his publishers was a breach of section 1(1) of the Official Secrets Act 1989: If Blake's disclosure occurred before this Act came into force on 1 March 1990, the disclosure was an offence under comparable provisions in section 2(1) of the Official Secrets Act 1911. The Solicitor General stated explicitly that the order was intended only to be preservative: a 'freezing' order. When criminal proceedings were launched, the court would have statutory jurisdiction to make a restraint order to prevent the proceeds of a criminal offence being used or dissipated. Presiding Judge: The Hon. But the law did not impose a duty which went beyond this. The contractual right in Reid-Newfoundland Co. v. Anglo-American Telegraph Co. Ltd.  AC 555 was held to have created a trust. The remarkable history of the proceedings thereafter has been already described by my noble and learned friend Lord Nicholls of Birkenhead. Since this issue has not been directly debated in the present case I propose to express no view on it. In 1989, 28 years after his conviction, Blake entered into an agreement with Jonathan Cape Ltd, an English company, to publish a book to be written by him about his life from 1944 onwards. An award of damages, based on strictly financial criteria, would fail to recompense a disappointed buyer for this head of loss. . Attorney General, Mr. Hausner, and his assistants, Dr. Robinson, Mr. Bar-Or, Mr. Bach, and Mr. Terlo, who helped in the conduct of the case, carried an enormous burden on their shoulders, and displayed absolute mastery of the huge amount of legal and factual material … Your Lordships are not equipped with the material necessary to decide the point. This is an exceptional case in which the Attorney General is entitled to intervene by instituting civil proceedings, in aid of the criminal law, to uphold the public policy of ensuring that a criminal does not retain profit directly derived from the commission of his crime.' Thus, in the same way as damages at common law for violations of a property right may by measured by reference to the benefits wrongfully obtained by a defendant, so under Lord Cairns' Act damages may include damages measured by reference to the benefits likely to be obtained in future by the defendant. The concepts of restitution and compensation are not the same though they will on occasions fulfil the same need. famously asked in The Mediana  A.C. 113,117, that if a person took away a chair from his room and kept it for 12 months, could anybody say you had a right to diminish the damages by showing that I did not usually sit in that chair, or that there were plenty of other chairs in the room? Recently, the like approach has been adopted to breach of contract. Therefore the trial judge s interpretation and conclusions that they became members of the national party on the authority of the Attorney General v Marcus Kachiume (8) and DPP v … 850, 855. A trespasser who enters another's land may cause the landowner no financial loss. The court upheld Sir Richard Scott V.-C.'s ruling on the breach of fiduciary claim. It is, however, relevant to note that there was evidence, as the judge found, that Mr Barker was suffering from mental illness, and that may explain much of what took place. In Lever v. Goodwin (1887) 36 Ch. More difficult is the alignment of this measure of damages within the basic compensatory measure. This is not an issue before the House. More difficult is the alignment of this measure of damages within the basic compensatory measure. A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. observed that these actions had 'crept in by degrees'. Get 1 point on adding a valid citation to this judgment. But these suggestions serve only to underline that, although not so expressed, the effect of this order is confiscatory. It bears repetition: Lord Shaw prefaced this observation with a statement of general principle: That was a patent infringement case. observed in Halifax Building Society v. Thomas  Ch. The court always had a discretion regarding the grant of the remedy of an account of profits, and this remains the position. JUDGMENT The Attorney General (Appellant) v Keron Matthews (Respondent) From the Court of Appeal of the Republic of Trinidad and Tobago before Lord Phillips Lord Brown Lord Kerr Lord Dyson Sir Patrick Coghlin JUDGMENT DELIVERED BY Lord Dyson ON 20 October 2011 Heard on 7 July 2011. In Tito v. Waddell (No. I agree that none of these facts would be, by itself, a good reason for ordering an account of profits. He was refused legal aid. Mrs. Sonia Bertram-Linton. This appeal concerns a sum of about £90,000 payable by Jonathan Cape Ltd., the publishers, to Blake. 1104 . 130 of 2000 the question of jurisdiction of the Lands Tribunal cropped up again. It is not a commercial claim in support of any commercial interest. But this claim could not be sustained on the facts. This may include a mandatory order to undo an existing breach, as where the court orders the defendant to pull down building works carried out in breach of covenant. The first suggested category was the case of 'skimped' performance, where the defendant fails to provide the full extent of services he has contracted to provide. The plaintiff recovers what he is actually entitled to not some monetary substitute for it. No fixed rules can be prescribed. 117 the Supreme Court held (inter alia) that ... R v Blake  2 Qd R 167;  QCA 77, considered: R v Gilbert ... Yeo v Attorney-General for the State of Queensland (2007) 170 A Crim R 213;  QCA 32 The Vice-Chancellor accepted that former members of the intelligence and security services owed a lifelong duty of non-disclosure in respect of secret and confidential information. For instance, an account of profits may not be ordered against a defendant in a patent infringement action who proves that at the date of the infringement he was not aware, and had no reasonable grounds for supposing, that the patent existed: Patents Act 1977, section 62(1). The terminology is however less important than the substance: under consideration are claims for the disgorgement of profits against a contract breaker. AG made a private claim against him for the whole of the profits, since B had signed an official secrets act and was therefore under contractual obligation to the state not to publish these facts. The judge awarded nominal damages of £2, and the Court of Appeal dismissed the local authority's appeal. Jonathan Cape has, apparently, already paid Blake about £60,000 under the publishing agreement. Lord Nicholls of Birkenhead Lord Goff of Chieveley Lord Browne-Wilkinson Lord Steyn Lord Hobhouse of Wood-borough. . The Private Law Claim: Restitutionary Damages It is with some hesitation that I enter upon this field at all in view of your Lordships' so far unanimous opinion save so as to record my dissent. He fails to obtain the benefit promised by the other party to the contract. On 16 August 1944 Blake signed an Official Secrets Act declaration. Earl of Halsbury L.C. Further, these specific remedies are discretionary. (3) The innocent party (in this case the Crown as represented by the Attorney-General) has a special interest over and above the hope of a benefit to be assessed in monetary terms. But in a minority of cases the error does matter and cases of the breach of negative promises typically illustrate this category. You are at Home 2019 December 16 Resources Decisions Supreme Court Decisions Selected Judgment no.33-2016 Appeal no. stated, in Hogg v. Kirby 8 Ves. 145, 146) "will recognize the principles of international law and will decide in … Neither the subject nor the opinions of my noble and learned friends Lord Nicholls and Lord Steyn could be done justice in many fewer pages than their opinions will occupy. Instead, Brightman J. made an award of damages under the jurisdiction which originated with Lord Cairns' Act. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. The measure of damages awarded in this type of case is often analysed as damages for loss of a bargaining opportunity or, which comes to the same, the price payable for the compulsory acquisition of a right. It is not as though this step would contradict some recognised principle applied consistently throughout the law to the grant or withholding of the remedy of an account of profits. and Millett L.J. Whether the beneficiaries or persons to whom the fiduciary duty is owed suffered any loss by the impugned transaction is altogether irrelevant. This is the classic form of order that seeks to preserve property pending the happening of some other event. However, the Court of Appeal permitted the Attorney General to amend his statement of claim and advance a public law claim. The House of Lords held that damages should be assessed on the footing of a royalty for every infringing article. My Lords, George Blake is a notorious, self-confessed traitor. To this end the court has wide powers to grant injunctive relief. It cannot say that it intends to prosecute Blake because it does not expect that he will ever return to this country; consequently it admits that it cannot say that it will ever be in a position to make use of the provisions of the Criminal Justice Act 1988 and the Proceeds of Crime Act 1995. On very similar facts the Supreme Court imposed a constructive trust on the intelligence officer's profits. He is still there, a fugitive from justice. The present case fell into the latter category: Blake earned his profit by doing the very thing he had promised not to do. contains alphabet). That is a remedy based on proprietary principles when the necessary proprietary rights are absent. In 1966 Blake escaped from Wormwood Scrubs prison and fled to Berlin and then to Moscow. Your Lordships consider that this policy can be given effect to without a departure from principle. In Beswick v. Beswick  A.C. 58 the court made an order for the specific performance of a contract to make payments of money to a third party. That well known ailment of lawyers, a hardening of the categories, ought not to be an obstacle: see 'Restitution or Damages' (1959) 20 Ohio L.J. He was sentenced to 42 years' imprisonment. Gains were to be disgorged even though they could not be shown to correspond with any disadvantage suffered by the other party. It now accepts that its original claim that it has equitable or fiduciary or proprietary rights against Blake cannot be sustained. What is the anticipated adjudication? This lack of correspondence was openly acknowledged. HER MAJESTY'S ATTORNEY GENERAL (RESPONDENT) v. BLAKE (APPELLANT) AND ANOTHER. Attorney General v. Blake and Another  UKHL 45;  4 All ER 385;  3 WLR 625 (27th July, 2000) HOUSE OF LORDS Lord Nicholls of Birkenhead Lord Goff of Chieveley Lord Browne-Wilkinson Lord Steyn Lord Hobhouse of Wood-borough OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE HER MAJESTY'S ATTORNEY GENERAL. He had sought unsuccessfully to have access to the further money due and owing to him by the publisher for the purpose of funding his defence. I will however confine myself to what I regard as the minimum of explanatory comment (with the inevitable consequence of some simplification). 439. There is a light sprinkling of cases where courts have made orders having the same effect as an order for an account of profits, but the courts seem always to have attached a different label. What has happened in such cases is that there has either actually or in effect been a compulsory purchase of the plaintiff's right of refusal. 1216, 1217. But this sum was so disproportionate that the courts refused to award it. But the Court of Appeal has been bold. Attorney General v Blake and the use of restitutionary damages for contractual breach English courts seem to have adopted a similar view to Canada and the United States, prior to the case of Attorney General v Blake, and often forged some relationship (fictional or otherwise) of trust between the claimant and defendant, in order to justify an award of restitution within the domain of contracts. Attorney General v Blake  1 AC 268 is a decision that does not fit principle. This does not alter the principles which are applicable nor does it provide the Crown with a remedy in the present case; but it is relevant to the understanding of the authorities. Neither the security and intelligence services nor any other branch of the Government were aware of the book until its publication was announced. These include cases of 'skimped' performance, and cases where the defendant obtained his profit by doing 'the very thing' he contracted not to do. As Lionel Smith has pointed out in his article Disgorgement of the profits of Contract: Property, Contract and 'Efficient Breach' 24 Can. 104, 119. This was the case of the swimming pool. Parts did relate to his activities as a secret service officer but by 1989 none of the information was any longer confidential nor was it alleged that it would damage the public interest. The court may, for instance, decline to grant specific relief on the ground that this would be oppressive. Decision Overview. The present case fell into the latter category: Blake earned his profit by doing the very thing he had promised not to do. Get 1 point on providing a valid sentiment to this This principle is established and not controversial. He is being deprived of the use of the money indefinitely. KANGOMBE v ATTORNEY-GENERAL (1972) Z.R. Breach of trust and fiduciary duty I should refer briefly to breach of trust and breach of fiduciary duty. As is well known, the Privy Council, in Attorney - General for Hong Kong v Reid  disapproved of the Court of Appeal decision in Lister & Co v Stubbs . Likewise, the court will compel the observance of negative obligations by granting injunctions. A Cabinet minister kept a diary of Cabinet discussions and events with the intention to once publish the contents in a book. The court will have regard to all the circumstances, including the subject matter of the contract, the purpose of the contractual provision which has been breached, the circumstances in which the breach occurred, the consequences of the breach and the circumstances in which relief is being sought. The second would cover the present case. He could recover damages, in respect of the loss he had sustained by the conversion. Attorney-General of Belize v Belize Telecom Ltd  UKPC 10. If the relationship had been a commercial one it is probable that by 1989 the undertaking would be regarded as spent or no longer enforcible, but if still enforcible the breach of it would have supported compensatory damages on the 'compulsory purchase' basis. We considered SCZ Judgment No. A person who, in breach of contract, sells land twice over must surrender his profits on the second sale to the original buyer. In these choppy waters the common law and equity steered different courses. There must be scope for a similar approach, without any straining of principle, in cases where the defendant provided inferior and cheaper services than those contracted for. Interact directly with CaseMine users looking for advocates in your area of specialization. . The undertaking, if not a fiduciary obligation, was closely akin to a fiduciary obligation, where an account of profits is a standard remedy in the event of breach. These cases illustrate that circumstances do arise when the just response to a breach of contract is that the wrongdoer should not be permitted to retain any profit from the breach. The policy which is being enforced is that which requires Blake to be punished by depriving him of any benefit from anything connected with his past deplorable criminal conduct. The Solicitor-General persuaded me that in the case of Blake each of these conditions is satisfied. The property Merseyside Police the offence is drawn more widely in the present case the only relevant offence could awarded... App… Presiding judge: the Hon academic writers for some time that expense House may be awarded have... Friend explores what is the case of any commercial interest. for the sale of land 1980 attorney general v blake judgement... 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