The reserved judgment in the “Stig” case was handed down by Mr Justice Morgan yesterday in the Chancery Division of the High Court. The judgment, BBC v HarperCollins and others (EWCA 2424 (Ch)), is available on Bailii.
On 17 August 2010 the BBC issued an application for an interim injunction seeking to restrain three Defendants from disclosing confidential information, including the identity of the Stig, the racing driving engaged by BBC in the programme Top Gear. The Defendants were not named in the Claim Form and the substantive hearing for the interim injunction was heard in private on the 31 August and 1 September 2010.
On 1 September 2010, Mr Justice Morgan refused the BBC an interim injunction restraining the Second defendant, as the mysterious Stig from revealing the identity of the Stig and also refused an injunction restraining publishing other confidential information in his forthcoming autobiography to be published by Harper Collins. His reasoning is now provided in the judgment handed down yesterday. It is interesting decision about the law of commercial confidentiality applied to an unusual set of facts.
The BBC engaged the Second Defendant in about 2003 through his service company to drive and race cars on the Top Gear programme as the Stig. The BBC relied upon express contractual obligations arising out a contract with the second defendant’s service company and/or equitable obligations of confidence.
The Judge held that the driver was bound by an equitable obligation of confidence ( rather than contractual obligation since the second defendant was not party to the contract) not to reveal the fact that he was the Stig.
The Defendants argued that identity of the Stig was in the public domain and therefore there was nothing confidential to protect. Relying upon the classic statement set out by Lord Goff in the Spycatcher case from 1990, the Court held that the information had during August of this year been disclosed so extensively in the media that it was in the public domain making it likely that he would not have succeeded at trial:
“In my judgment, the press coverage, in particular the press coverage in August 2010, goes well beyond speculation as to the identity of The Stig. The statements in the press that Mr Collins was The Stig would be understood by the public as statements of fact. The number of different newspapers which have stated that fact is such that the fact is now generally accessible. For all practical purposes, anyone who would have any interest in knowing the identity of The Stig now knows it. The identity of The Stig is no longer a secret and it is no longer confidential information. I conclude that at the latest by 29th August 2010, the date of the last of the thirteen publications (between 19th and 29th August 2010) to which I referred above, the fact that Mr Collins was The Stig was so generally accessible that that information had lost its confidential character. At the lowest, I think it is likely that the court at any trial of this action would reach that conclusion.”
This part of the decision was inevitable given the extensive coverage in the media.
A more interesting part of the ruling is that concerning the Springboard Principle, namely that the court can, in certain cases restrain publication of material that is no longer confidential where a defendant has benefited by a past breach of duty of confidence and thereby gained an unfair advantage. This principle was based on the 1982 case of Schering Chemicals v Falkman  1 QB. The Judge followed the recent decision of Mr Justice Arnold in Vestergaard Fransden A/S v Bestnet Europe Ltd  FSR 2;
“The decision in Schering Chemicals was analysed in Vestergaard. In the latter case, it was held that Schering Chemicals was to be regarded as a case where the information always had a limited degree of confidentiality and it was that which was protected by the injunction in that case. I accept that analysis of Schering Chemicals. Further, in my judgment, there is later authority which shows that Schering Chemicals cannot any longer be, if it ever could have been, relied upon as establishing the proposition that the court can restrain publication of material which is no longer confidential. I refer to the treatment of that decision by Lord Oliver of Aylmerton in A.G. v Guardian  1 WLR 1248 at 1319 D-E, referred to by Bingham LJ in the Court of Appeal in A.G. v Guardian Newspapers (No. 2)  1 AC 109 at 217C. I stress that I am only concerned at the present point with the equitable duty of confidence and not with the effect of any contractual restriction on disclosure of information”
The information in the public domain was that The Stig was the racing driver Ben Collins. His autobiography has now been published and is in the bestseller lists.