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,


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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