All Rise!

The court is now in session… Please be seated.

Silence filled the room as the senior council for the appellants, Simms, rose to take her place (in front of a non existence lectern… We’re uni students, we can’t have everything!).

“My Lady’s and Lord…” She introduces herself, her learned friend and colleagues before starting her first submission. Court etiquette is one of the most important things in a court room and if done incorrectly can damage you beyond repair. Mainly through the fact that the judge starts off by not liking you, which is never what you want. However, the senior counsel breezed through the etiquette, because she was cool like that! What is court etiquette, I hear you ask! Well it is basically manners, your behaviour towards the judges, such as referring to them correctly: My Lord and My Lady, unless they are a circuit judge then it is Your Honour. Other things include introducing yourself and your fellow speakers, always been polite and respectful and allowing the judges to interrupt you, because that is something they like to do!

Also, I’ll take this opportunity to describe to you who/what is needed in a moot. So, firstly, you need a judge, or three in our case (this was our lecturer and a student from each team). You need a clerk, who is someone who time keeps in moots, and also a bailiff who announces the entry of the judges, that is normally the “all rise” bit. Then you have the speakers, usually two per side. A senior and junior council: the senior normally has the longer submission, however the team can choose how long each person speaks for. Anyways, back to the moot!

Her first submission, and notably the hardest point in the moot, was on the issue of confidentiality; please refer to the previous post to find the scenario.  Had Channel Xstra become liable in Breach of Confidentiality when they broadcasted a TV show which showed remarkably similar qualities to Simm’s idea?

This question raises a two questions. Firstly, was Xstra aware that they were participating in confidential conversation, as opposed to a private one? Secondly, what are the rules governing third parties and confidentiality?

The first submission for the appellants was thought to be the hardest because both of those questions have answers that tend to lean against them, not for. It is argued that Xstra was not taking part in a confidential conversation, and thus they were not bound by confidentiality. Whilst this could be argued either way we were not provided with the evidence and the first instance case suggests that Xstra were unaware of a breach of confidence. Therefore it left the appellants the argument that it would have been reasonable for Xstra to have assumed they were participating in a confidential conversation. The main case cited in favour of this was Coco v A N Clark (Engineers) Ltd [1969] RPC 41 where is was stated by Megarry J (read aloud as Justice Megarry for those who don’t do law speak) that: “if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose on him the equitable obligation of confidence.” The appellants sort to argue that it was normal in the entertainment industry for these conversations to be held in confidence.

The rules about third parties and breach of confidentiality all depend on whether the third party was aware of the confidentiality. Equally, if they knew that there was a confidential arrangement and they bought the idea from the owner, there would be no breach when the idea was later used and broadcasted. It was argued that Xstra knew that it was a confidential conversation and Xstra advantageously used the idea.

Senior Counsel for the appellants finished her submission and the room waited patiently for the Senior Counsel for the respondents to take his turn.

The Senior Counsel was dealing with two submissions: firstly that Xstra was an innocent third party and secondly that an injunction would be an ineffective as a remedy.

As stated above the issue of Xstra being a third party in a possible breach of confidentiality case was always easier to defend, so the Senior Counsel had his work cut out for him. It was also an easier point to argue that an injunction would have been an ineffective remedy because the appellants were not particularly interested in it for a remedy. The fact that the information had already been made available to the public meant that an injunction would have become void. There is no real point in stopping information from being available to the public if they already have access to it, now is there?

This leads us to the Junior Counsels for both sides. Typically the Junior Counsels have less time to speak, this was the case for both today.

The Junior Counsel started his speech with some rebuttals for the Senior Counsel for the respondents. A rebuttal is effectively a come back, because lawyers always feel the need to have the final say! The first to speak will have the rebuttal and the last to speak will have the surrebuttal. The main submission given by the Junior Counsel for the appellants was about the issue of public interest. He argued that there should be no defence of public interest allowed to the respondents. The issue that always arises with public interest is the difference between what is in the public interest and what the public are interested in. An example would be that whilst the public are interested in what Taylor Swift was wearing yesterday, Miss Swift’s clothes are not within the public interest… I’m sorry Talor, I’m sure you’re clothes are very interesting, but that is besides that point. Thus, the argument was that an idea for a TV show may have been what the public was interested in but is not within the remit of public interest. The Junior Counsel for the respondents argued that it was within the remit of pubic interest.

I’m sure you are currently on the edge of your seats waiting to find out who won…I know I was… Sort of.

It was a split decision! It was held that the appellants lost the appeal on their first submission (breach of confidentiality) however they did win on the second (there is no defence of public interest).

And about the picture… After all the nasty law, I thought you’d appreciate a picture of a bike and a few palm trees. I mean, who wouldn’t?

Until next time,

R

PS. The main cases used today were:

Frazer v Thames Television Ltd [1984] QB 44

  • This case is factually similar to the scenario, hence why it was used. F was the manager for a band which consisted of three girls. Between them they came up with an idea to make a TV show about the formation and then struggles of the band, it was to be a semi-factual (or to say semi-fictional?) piece of television. F and the three others were to portray themselves in the show. The idea was taken to a TV company (T), who orally, then later in written form, agreed to take on the show. T later cast other people into the role and F sued for breach of confidence.
  • It was held that if the idea was communicated in confidence, was readily identifiable, original, capable of being put in action and of potential revenue then the court would restrain further communication if the idea was not already accessible to the public.
  • There was held to be breach of confidence in this case. However, it can be distinguished from the facts of the scenario as the issue is with a third party. Can they be classed as the same in these purposes? I think not. Despite this, the argument given was that the idea in the scenario was also original, readily identifiable etc (as above).

Attorney-General v The Observer Ltd and others [1990] 1 AC 109

  • This case is also known as the Spycatcher.
  • This case was used due to its ruling on third parties and confidentiality. It was held that a third party that came into possession of the information would also be bound by confidentiality unless the information was otherwise available to the public (or public interest dictated disclosure, however this bit isn’t really relevant here).
  • Again, this case is clearly relevant in regard to third parties, however as raised above, did they, as a third party, realise that the information was privy?

And the main case that should have been used that no one did was:

De Maudsley v Palumbo [1996] E.M.L.R 460

  • This case was about the idea behind a very well known night club: the Ministry of Sound.
  • In short D told P about an idea for a nightclub in order to receive funding. P and some other individuals, not including D, then set up a nightclub.
  • It was surprising that this case was not used as it involved the passing of information in a social setting which may or may not have been seen as confidential. It was held that it was not a conversation that was held in confidence due to the social setting and the fact that D had re-framed from using the word “confidential” in case it stopped P from funding his idea.
  • It was also held that there had to be a significant element of originality and it had to be clearly identifiable as that of the confider (D in this case).
  • In relation to the scenario, was the idea sufficiently original and did it clearly belong to the confider? Ahh, well, that is for you to decide!
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In Between.

Alas, there was no workshop this week, so we are in between things… Preparing for the battle of next week (all shall be explained later). Even if there was a workshop this week, I wouldn’t have made it because my bike and I, we had a little disagreement. All is well now, but needless to say, the bike won and I wasn’t going anywhere yesterday. I don’t think we have to upload a blog this week as there was no workshop, but I didn’t want to keep you guys hanging, so here we are.

Our task is to prepare for next weeks workshop, which is a big one… Wait for it… A moot! For those of you who aren’t down with all the legal lingo, a moot is a form of legal debate/argument. Many of you will be aware of the word “moot” from the saying “moot point”. As you know, a moot point is a point that you can argue over and not be able to find a satisfactory resolution. That is basically what a moot is. We are given a set of facts and split into groups, one will be for and one against, or the appellant and the respondent. We have to argue the point, basically, often with no clear way of stating who is right or wrong. You may be thinking, “well, what is the point to all of this then, if there is no right answer?”. I still often think that… But the point is when you moot that is not just about the legalities of the argument. It is also about how you speak (how well it is paced, how clear you are etc.), how well researched your argument is, in general: how you argue.

I’m starting to see why people dislike lawyers as a general rule… I mean, where else do you go where they teach you how to argue?

Here is the moot problem:

                                                                  Simms                                                  Appellant

v

                                                                  Channel Xstra                                           Respondent

The plaintiff, Terry Simms, is an actor of some limited fame. After being ‘killed off’ in a recent episode of West Enders, a popular serial on BBC television, Mr Simms had an idea for a television serial. The storyline revolved around a group of young clothes designers, struggling to hit the big time in the tough world of fashion. Mr Simms spoke to Janet Nye, a well known scriptwriter, hoping to interest her in the idea of turning his storyline into scripts. Nye took the idea to Frank Blyton, a producer of many well known television serials. On return, she told Simms that Blyton rejected the idea, saying that it would not have the mass appeal that is needed for a successful serial. Accepting that Nye’s expertise and Blyton’s verdict was correct, Simms thought no more about the script. Some time later, Channel Xstra, a digital channel, started to broadcast a daily ‘soap’ serial, called ‘A lines’ , starring several well known actors of repute. The storyline was almost identical to that discussed by Simms and Nye. The producer was Blyton. Simms sued Channel Xstra, Nye and Blyton for breach of confidence, alleging that Blyton knew that the idea was his (Simms’s) when he was approached by Nye. The court found that Channel Xstra were approached with the idea without knowledge that it was Simm’s and that no breach of confidence had occurred by Channel Xstra. Stepney J also held that it was in the public interest that mere ideas for serials (which had not been written down or developed yet to the full) should be in the public domain and not protected by the laws of confidence.

Simms is appealing on two grounds:

  1. Channel Xstra were bound by the laws of confidence, even though they were a third party to the knowledge, and did not know that it had been imparted to Blyton in confidence.
  2. There was no public interest defence available to Channel Xstra in this situation.

As you will notice, it is pretty similar to last weeks scenario, with a few more bits and pieces added in here and there. I will be arguing for the defence, or the respondent, Xstra.

I would put up some of the law, but I can’t risk the other side seeing it… You know, all this hush hush business! But fear not, it will be up here next week.

Until next time,

R

Confidentiality Gone A.W.O.L

What if you told someone, you trusted, something you didn’t want anyone else to know and then they proceeded to broadcast it to the world, or even just the person next door. What would you do? Would you think “fair enough” and carry on as if nothing happened? Would you shout and scream and throw your toys out of your pram? Or, would you go to your lawyer and sue them? For some either of those three options is an entirely valid response, many more would favour the last two, but for most (obviously depending on the information that was passed on) the final option is the clincher.

This week is about Breach of Confidentiality. I can hear you cheering, deep down on the inside, kind of…

First things first, the conversation must be in confidence. Not a friendly chat. Not even a private chat. It must be in confidence. So, don’t go telling your friend all about your new idea for an app which could make you lots of money or look great on your CV if they are then going to use the idea themselves! Though, saying that, they wouldn’t be much of a friend, now would they? But the point still stands. Next the conversation must have implied an obligation of confidence. Again, your average meet up in a coffee shop would not be covered here, oh boohoo I hear you all cry! And finally, the information was disclosed without your consent and there must be at least the risk of damage. These three points, also known as elements, form the basis of Breach of Confidence and come from the case Coco v AN Clark (Engineers) Ltd. [1969] RPC 41. If you want to know a little more: http://www.hse.gov.uk/enforce/enforcementguide/court/reporting-breach.htm

The scenario we were given in class this week was about a woman who had told her friend about an idea she had for a new TV show. She had been told that no channel wanted to pick up her idea, but a few months down the line she saw her TV show (the same name and idea) on air. We were then split into “firms”, groups of no more than six to you and me, and we were asked to write a legal opinion, which I may add now is rather brief, but you will get the gist:

M is our client. M had an idea for a TV show and arranged to meet up with a very good friend Simon (S) who works in the media industry. They meet up in the X Y Z Café and M told S about the reality TV show idea called A Line. The A Line was a TV show about the fashion industry. S stated that he would pitch the idea to TV stations and get back to her. During this meeting S had taken a few brief notes about the idea; M also had a rough outline in her diary. They were in a private booth and M is quite certain that no one could have heard them. A few days later S got back to M and told her that none of the broadcasters were interested in the idea. Six to eight months later M saw a TV programme on air called the A Line which was a TV show about the fashion industry.

The client would like to be credited for the show with payment for the original concept. The client also would have liked a role within the production side of the TV show, therefore there could be potential loss of earnings.

For an action for breach of confidence to be successful it must be established that:

  • The information has a certain degree of confidence,
  • The information was provided in circumstances importing an obligation of confidence; and
  • For an injunction or declaration to be granted, there must have been an unauthorised use or disclosure of that information and, at least, the risk of damage.

Lord Nicholls in Campbell v MGN Ltd [2004] A.C.457 at 464-5 summarised the law of confidence as “[the imposition] of a duty of confidence whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential”.

Trivial information does not count Faccenda Chicken Ltd v Fowler [1987] Ch. 117.

In our opinion we think that:

  • More information about the show itself would be needed so that a comparison between M’s idea and the show that was aired on TV.
  • Our client needs to get more evidence. This could be from S or from the producers of the A line. Communication could also be opened up with the companies that S contacted in relation to the A Line.
  • We need the bank documents/statements to do with the previous dealings to see if there relationship of business dealings.
  • A social media search could be used as evidence to support the meeting between S and M.
  • The main issue here is the fact that the conversation does not appear to be a confidential and therefore may not be covered in a breach of confidence.
  • She may have less of a case then if she pitched it to the TV producers herself.
  • As she pitched to Simon and not hearse.
  • If evidence adduced to show it was her she would have a possible against Simon and or the broadcasting Company.

Whilst we, as a class, decided that we would need more evidence if the matter were to be pursued, it did raise a set of interesting issues. Who can we trust? Have we really got to the stage in today’s society that an idea, namely a profitable one, is of more use and value to us than our friends trust and confidence? What does that say about us and the world we live in? Apparently little good. But fear not! We can always sue them and get the money back. Though, after suing them I highly doubt you would regain the friendship unless your life is a lot more like a Hollywood film than mine.

On an entirely different note, the picture is from New Orleans, LA, and is there as a heads up to a fantastic modern performance of A Streetcar Named Desire that was running in the Young Vic from July to September this year.

Remember, don’t say anything mean about people and don’t share your ideas out of confidence or breach the confidence of another!

Until next time,

R

Let’s Get Defamed!

And it beginnings. The first proper post, because, of course, introductory posts don’t actually count. Oh, and I also thought I’d throw in a picture of a lovely beach. It’s on Padre Island, Corpus Christi TX if anyone out there is at all interested.

Defamation. It’s just a simple word, yet it invokes so many different thoughts. For lawyers the first thought is probably “money!!!” (to be fair, that is probably their first thought on most things… Don’t I paint a cynical picture of the legal world?) or “what has my client supposedly done now?” For celebrities it conjures up terrifying images of a long court case and their face across the fronts of many papers, scandalous affairs and pictures they wished they’d never taken or they never knew even existed. Yet, for most people defamation doesn’t mean anything other than quite literally being defamed. Most famously said by Lord Atkin in Sim v Stretch “a statement which tends to lower the plaintiff in the estimation of right thinking members of society”. If we’re getting into the nitty gritty of it defamation is a statement about a claimant which is defamatory and has no legal justification.

I learned about defamation for the first time last year in the Law of Torts. However, this week we had to put a different spin on it. We had to think about how defamation and the media go together. Thus, we all made up silly scenarios about famous singers, politicians and our lecturers being involved in some form of defamation. Because, obviously that is what law students do… We’ve got to have our fun somewhere… For instance, is it defamatory to tell someone, and them alone, that they are a dirty cheat? No it isn’t, as long as no one else heard it. However, if you posted a blog stating that your ex is a dirty cheat (when they weren’t, or well they could be dirty but not a cheat and vice versa, well I think you get the drift) then that would be defamatory.

The statement has to be about someone, namely the claimant, otherwise they wouldn’t be suing I guess… You never know, though, there are some odd people out there, putting it nicely. This statement must be defamatory, so something that makes a reasonable person think badly or lower their opinion of another. A quick aside here, a reasonable person is often referred as the man on the Clapham omnibus, which comes from an old case. It basically means you or me. Anyhow, back on point, there is also a bit which is “without legal justification”. This means that you don’t have an excuse, simply. Did you have consent? Was it true? Is it your honest opinion? All of these defences are listed within the new Act.

Defamation is split into two types: Slander and Libel. Libel is more permanent in nature and often involves something in writing, though it is not limited to that. Whilst slander is of a more temporary nature and is often the spoken word, though again not limited to that. The big thing at the moment is the new piece of legislation that was put into force on the 1st January 2014. This offered a bit of a shake up to the law of defamation through the re-naming of certain defences. However, the thing bit that got most lawyers interest were the sections to do with the internet. That big bad black hole full of information that is full of hundreds of thousands of potential claims in defamation and that probably isn’t even much of an exaggeration. Section 8 (s.8 if you’re abbreviating it like legal peeps do) is the new Single Publication Rule changed the law in the most notable way. Now the time limitation starts with the first publication, whereas before it was renewed with each publication. This is an important section because it seriously limits the time in which a claim can be made. It was previously believed that the single publication rule was renewed, in a sense, each time the publication was made. However, now it is only from the very first publication. So you better get in there quick! I guess, a slight public policy reason (judges do like their public policy reasons, not that they would let you know that) as the potential for defamation cases will rise due to social media. Therefore there needs to be a way of cutting back or capping the cases so that the courts do not clog up. Or, if your a cynic, making less work for the judiciary.

My whole opinion on defamation is don’t say or do something that isn’t true and could be construed as mean. Hey, just be nice to everyone and it’ll all be dandy. Now wouldn’t that solve a lot of issues in the world? Like world peace!

On that note, peace!

Until next time,

R