Nature of the Case
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Facts
D is a notorious traitor. He was employed as a member of the security and intelligence services for 17 years. In 1951 he became an agent for the Soviet Union. From then until 1960 he disclosed valuable secret information and documents gained through his employment. On 3 May 1961, he pleaded guilty to five charges of unlawfully communicating information contrary to section 1(1)(c) of the Official Secrets Act 1911. He was sentenced to 42 years' imprisonment. In 1966 D escaped from prison and fled to Berlin and then to Moscow. In 1989, while still in Moscow, he wrote his autobiography. D published his activities as a secret intelligence officer. By 1989 the information in the book was no longer confidential, nor was its disclosure damaging to the public interest. D entered into a publishing contract with Jonathan Cape Ltd who agreed to pay him advances against royalties: £50,000 on signing the contract, a further £50,000 on delivery of the manuscript, and another £50,000 on publication. 'No Other Choice' was published on 17 September 1990. D had not sought any prior authorization from the Crown to disclose any of the information in the book relating to the Secret Intelligence Service. An amount, in the region of £90,000, remains payable. These proceedings concern this unpaid money. P commenced an action against D, with a view to ensuring he should not enjoy any further financial fruits from his treachery. P rested its claim exclusively on one cause of action: that in writing the book and authorizing its publication D was in breach of fiduciary duties he owed the Crown. The Vice-Chancellor rejected this claim and dismissed the action. P appealed. The Court of Appeal allowed the appeal. The court upheld the ruling on the breach of fiduciary claim. On this appeal, P has not sought to challenge that decision. P was allowed to amend his statement of claim and advance a public law claim. P asserted a claim for relief in his capacity as guardian of the public interest. P may invoke the assistance of the civil law in aid of the criminal law. Typically this occurs where an offence is frequently repeated in disregard of an inadequate penalty. The court made an order in the following terms: 'That D be restrained until further order from receiving or from authorising any person to receive on his behalf any payment or other benefit resulting from or in connection with the exploitation of No Other Choice in any form or any information therein relating to security and intelligence which is or has been in his possession by virtue of his position as a member of the Secret Intelligence Service.' Lord Woolf observed that had D not signed the agreements to keep the information secret he would not have been employed. By submitting his manuscript for publication without first obtaining clearance D committed a breach of this undertaking. The Court of Appeal suggested that the Crown might have a private law claim to 'restitutionary damages for breach of contract', and invited submissions on this issue. P decided that the Crown did not wish to advance argument on this point in the Court of Appeal. The Attorney General, however, wished to keep the point open for a higher court. The Court of Appeal expressed the view that the law of contract would be seriously defective if the court were unable to award restitutionary damages for breach of contract. D appealed against this decision. On appeal, P advanced an argument that restitutionary principles ought to operate to enable the Crown to recover from D his profits arising from his breach of contract.
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