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IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

 

Royal Courts of Justice

Friday, 9th October 1987

 

Before:

MR JUSTICE VINELOTT

 

 

B E T W E E N:

 

CHURCH OF SCIENTOLOGY OF CALIFORNIA

Plaintiff

 

- and -

 

 

(1) RUSSELL MILLER
(2) PENGUIN BOOKS LIMITED

 

Defendants

 

 

 

 

 


(Transcribed by Beverley F. Nunnery & Co., Official Shorthand

Writers and Tape Transcribers, 25 Dulverton Mansions, Gray's

Inn Road, London WCIX 8EJ. Telephone: 01 278-7047/0975)


MR A. NEWMAN and MR J. ALGAZY (instructed by Hamida Jafferji)

appeared on behalf of the Plaintiff.

MR G. LIGHTMAN, Q.C., MR M. BRIGGS and MR P. JONG (instructed

by Peter Carter-Ruck & Partners) appeared on behalf of the

Defendants.


JUDGMENT

(As approved by Judge)

 

 

   

 

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MR. JUSTICE VINELOT: In this action the Church of Scientology

seek an interim injunction pending the trial of an action

against a Mr. Russell Miller and Penguin Books Limited. The

Church of Scientology, California, is registered under

Californian law as a religious organisation. It has, of

course, subsidiary or associated organisations with similar

objects elsewhere, including the United Kingdom. The

subsidiary or associated organisation in the United Kingdom

is a company. It has not been registered as a charity. It

should not therefore be assumed that the plaintiff or its

subsidiary or associated organisations will be recognised in

England as established for the advancement of religion. I

shall, nonetheless, for convenience refer to this group of

organisations as "the Church"; I shall, where appropriate,

refer to the plaintiffs alone as "the plaintiffs".

The founder of the Church was the late Mr. Ron

Hubbard. Mr. Russell Miller is a well known author with a

reputation for investigative journalism. He has written a

biography of Mr. Hubbard. Penguin Books Limited are, of

course, the intended publishers. Proof copies of the book

were available to a limited circle on 5th August last. The

plaintiffs obtained a copy of it. It is not clear from the

evidence precisely how or, more importantly, when they did

so. The intended date for publication is 26th October. The

publication date has been arranged to coincide with the

serialisation of excerpts from the book in successive

editions of the Sunday Times. The publishers planned to send

the first print run to booksellers and wholesalers early this

week. Distribution to them cannot be delayed much longer if

the intended publication date is to be adhered to. In turn,

much of the impact of the publication of excerpts in the

Sunday Times which is likely to go ahead, albeit if necessary

with some editing whatever the outcome of this application,

will be lost if publication date is delayed beyond 26th

October.

The plaintiffs seek an injunction, pending trial,

to restrain the author and the publisher from distributing

the book in its present form. The writ was issued and notice

 

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of an application for an interim injunction was given on 29th

September. The hearing commenced on Tuesday of this week and

concluded at 10.45 this morning. In these circumstances and

having regard to the planned publication date and the need

for urgent distribution of the first print run, I have

thought it right not only to give judgment without delay but

also to make my judgment as brief as possible in the hope

that if my decision is challenged in the Court of Appeal a

transcript can be made available to it.

Injunctions are sought on three grounds. First, it

is said that the plaintiffs own the copyright in two

photographs, one of which appears on the dustsheet and,

indeed, appeared in earlier publicity material put out by

Penguin Books, and the other as an insert in the body of the

book. They say that the publishers would be in breach of

this copyright. Secondly, it is said that the book contains

quotations from and information derived from diaries and

journals and letters of a confidential character which were

communicated in confidence to one Gerald Armstrong while an

employee of the plaintiffs, and that the plaintiffs are

entitled to protect those documents and information from

publication by a defendant who, whether or not he acquired

them innocently, now knows of the confidence attaching to

them. Thirdly, it is said that the documents in question

were obtained by Mr. Miller directly or indirectly in breach

of a sealing order made by the courts of California in

litigation to recover the documents from Mr. Armstrong.

The Photographs

I can deal with the photographs very briefly.

Mr. Miller says that he obtained the dust cover photograph

from a library which supplies newspapers and publishers with,

inter alia, photographs. An executive of that company says

that he attended a photographic session at the Church's

college in East Grinstead when he was handed the publicity

brochure which included this photograph. The plaintiffs say

that the photograph he was given was a different photograph

and they have produced a copy of the photograph they say he

was given. It is admitted by the plaintiffs, though the

 

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admission was made at a late stage, that the library is

entitled to supply copies of the photograph it was given in

the ordinary course of its business. There are some, but

only minor, differences between the photographs. The one on

the dust jacket is not an exact reproduction of the one in

which the plaintiffs claim copyright; it has been reproduced

in a way which increases its dramatic impact. The photograph

admittedly supplied to the library, similarly reproduced,

would be virtually indistinguishable.

The claim that the plaintiffs would be injured by

infringement of its copyright, assuming that it has copyright

in the photograph actually supplied to Mr. Miller by the

library, and that the library had no authority to supply that

photograph, is simply incredible.

The other photograph is, on its face, a snapshot of

a number of people, including Mr. Hubbard, taken on the beach

at Curacao. Unlike other photographs on the same page, it is

not a "posed" or official photograph. The plaintiffs say

that it was taken by an official photographer employed by

them. The defendants say that it was taken by another

employee, who was not employed as a photographer, and was a

snapshot taken for his own purposes. They say that it later

came into the possession of a lady resident in California,

who supplied it to Mr. Miller. I do not think that it

matters which of these accounts is ultimately found to be

correct, if this action is tried. Even if the plaintiffs

have copyright in the photograph, it is no more than a

snapshot, and the use of it in breach of copyright cannot, in

my judgment, possibly harm them. It could, by contrast,

gravely impair the defendant's plans for launching the book

if it now has to remove that inserted photograph.

This is not a case where a defendant has

deliberately made use of copyright material for profit or

otherwise, and used it in deliberate disregard of the owner's

rights. In my judgment, the plaintiff is not entitled to any

interlocutory relief in respect of the photographs.

 

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The Documents

The background is shortly this. Mr. Armstrong,

then a senior employee of the plaintiffs, was employed to

compile, protect and preserve Mr. Hubbard's personal papers

and other biographical material. Mr. Hubbard was then alive

and it is said that Mr. Armstrong was allowed to carry out

this task on the footing that he would hold confidential all

documents and information obtained by him in pursuance of his

duties, which documents were to form part of the archives of

the Church. Much of the material collected by Mr. Armstrong

was given to him, it is said, after he had promised that it

would be kept confidential. Later, a Mr. Garrison was

employed to write an official biography. Mr. Armstrong was

assigned to be his researcher. Then Mr. Armstrong left the

church. Mr. Garrison's engagement was also terminated,

though that was later. Mr. Armstrong took with him a

substantial amount of what I shall call "the archival

material".

The plaintiff took proceedings in the courts of

California to secure the return of this material and to

prevent disclosure of any of the contents. A temporary

restraining order was made on 25th August 1982 requiring Mr.

Armstrong to surrender all the archival material to the

court. The action then came before Judge Breckenridge in the

Californian Superior Court in May 1984. On 20th June he gave

a memorandum of intended decision. Shortly stated, one

defence advanced by Mr. Armstrong was that he was entitled to

remove the material and to lodge it with his attorney for his

own protection. He reasonably believed, he said, that

possession of this material would afford, him some protection

against unlawful harassment (or worse) by the Church, under

practices, in particular the fair game doctrine, which have

been sufficiently described in other decisions of the English

courts, to which I shall later refer.

Judge Breckenridge, while holding that

Mr. Armstrong had been guilty of conversion, found on the

facts that this defence was amply made out. The documents,

he said, were to remain with the court pending a further

 

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hearing of the action. I should at this point cite the

decision of the learned judge as to what was to be done with

the documents, in full. He said:

"As to the equitable actions (that is, breach of
confidence and constructive trust], the court finds
that neither plaintiff"

I interpose to say that Mr. Hubbard's wife, Mary Sue, was

joined as a party --

"has clean hands and at least as at this time is
not entitled to the immediate return of any
document or object presently retained by the court
clerk. All exhibits received in evidence or marked
for identification, unless specifically ordered
sealed, are matters of public record and should be
available for public inspection or use to the same
extent that any such exhibit would be available in
any other law suit; in other words, they are to be
treated as henceforth no differently than similar
exhibits in any other case in Superior Court.
Furthermore, the 'inventory list and description'
I of materials turned over by Armstrong's attorney to
the court shall not be considered or deemed to be
confidential, private or under seal.

"All other documents or objects presently in the
possession of the clerk not marked herein as court
exhibits shall be retained by the clerk, subject to
thesame orders as presently in effect as to
sealing and inspection until such time as trial
court proceedings are concluded as to the severed
cross-complaint."

And then he goes on to say when the conclusion of the case is

to be taken as occurring.

I shall return to the outline history of the

litigation in a moment. First, I should say something about

the documents, publication of which or of information derived

from which is sought to be prevented in this action. The

particulars in the application cover eight categories of

documents; four were abandoned in the course of the hearing

when it became plain that the Church itself had brought them

into-the public domain. The remainder can be categorised

under two heads.

Category A

This category comprises documents which became

exhibits during the hearing before Judge Breckenridge. There

 

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are two subcategories. The first comprises diaries kept by

Mr. Hubbard during the years 1927 to 1929. In 1929 he was 18

years old. The second is a letter written to Mr. Hubbard by

his mother, also in 1929. The case for the defendants is

that they obtained copies of these documents from a Mr. Atack

who in turn obtained them from a photocopying agency employed

by Mr. Flynn who was Mr. Armstrong's attorney, and that they

were supplied to Mr. Armstrong at a time when the order made

by Judge Breckenridge that exhibits should be available to

the public was in force. The plaintiffs say that this is

impossible because the order did not remain in force for a

sufficient period for that to be done.

The tangled history of the Californian litigation

is shortly this. The memorandum of intended decision became

a decision and an order on 20th July 1984. Until then it

was, as its title suggests, an intended decision; the

intention being announced to enable the parties to seek other

relief in a higher court before the order was made. In fact

the plaintiff obtained a temporary stay order from the Court of

Appeal on June 25th which was vacated on 18th July but

reinstated on 20th July 1984 by the Supreme Court of

California. That was the very day on which Judge

Breckenridge made his order. No disclosure, it is said,

could properly have been made up to or after 20th July.

Then, on the 23rd August, the temporary stay order made by

the Supreme Court was vacated. It was re-entered on 28th

August. That gap of five days has been referred to in

argument, as "the first window". Then, on 15th November the

temporary stay order was again vacated by the Supreme Court,

but on 21st November an injunction was entered by the Ninth

Circuit Federal Court of Appeals. That is the second window.

Then, on 19th December the trial exhibits, which had been

ordered to be unsealed by Judge Breckenridge, were made

available to the public for viewing. However, a temporary

restraining order stopping that was made on 20th December.

That is the third window.

The plaintiffs say that the documents could not

properly have escaped through these windows because no order

 

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vacating a stay order by the Court of Appeal or the Supreme

Court would release the documents from the stay order unless

and until the order vacating that stay order had been made an

order of the Superior Court of California - that is, Judge

Breckenridge's court - a process which they say, with the

support of expert evidence from Californian attorneys, would

take some five to six days. So the window was never open

except for the very short period on 19th or 20th December.

The answer given by the defendants is that although

the Supreme Court would not act on an order vacating a stay

order by releasing documents in its custody until that order

had been made an order of the Superior Court, there was

nothing to prevent Mr. Flynn, who was the attorney for a

party in the appeal, from releasing copies of exhibits which

he had in his possession in accordance with Judge

Breckenridge's original order as soon as the order vacating

the stay order had been made and perfected by the Court of

Appeal or the Supreme Court; a process which clearly would

take less time than the communication of that order to the

Superior Court and its entry in the Superior Court. On that

footing the windows were open for a significant period.

Reliance is placed by the defendants on what is

alleged to havebeen said by Mr. Flynn to the plaintiffs'

Californian Attorney in relation to documents which he had.

I do not propose to deal with this evidence in detail; it is

hearsay evidence and, more importantly, too vague to found

any conclusion.

I accept that there is an issue whether there was a

period during which Mr. Armstrong and Mr. Flynn were entitled

to release to others copies of exhibits in the possession of

Mr. Flynn or, for that matter, in the possession of

Mr. Armstrong (if there were any). But the claim that there

was never the faintest chink in the window seems to me

flimsy.

Category B

This comprises documents, which were never

exhibited, and which, it is said, were throughout sealed.

 

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There are two subcategories. The first is a letter written

by Mr. Hubbard to his first wife, Polly. The second

comprises three letters written by Mr. Hubbard to one Helen

O'Brien in 1953. The defendants founded an argument on Judge

Breckenridge's order. The argument, as I understand it, is

this. It is said that the first pert of the order related to

exhibits - and there were of course exhibits other than those

derived from archival material - and declared them to be

available for inspection, save only for certain specified

exhibits put in evidence and sealed by specific orders made

in the course of the proceedings. Then it is said that the

next sentence: "The inventory list and description shall not

be considered or deemed to be confidential," relates to all

the archival material. On that view the remainder of the

decision, "all other documents or objects shall be retained

by the clerk, subject to the same order as are presently in

force," apply to other documents put in evidence in the

proceedings, and not the archival material.

That seems to me a strained construction. I would

construe the first paragraph as dealing with exhibits, and

the last sentence of that part as referring to the list of

the archival material and not to the archival material

itself.

The next paragraph, "All other documents ..." then

catches the archival material other than that put in

evidence. Any other construction seems to me to give rise to

wholly capricious results.

However, that is not the end of the story.

Mr. Miller says that he did not in any event obtain these

documents from Mr. Armstrong or his attorney, or anyone

connected with them. His evidence is that he obtained the

letter to Polly from a source which he is reluctant to

disclose and that he obtained the documents in the second

subcategory from a Mr. Ronald Newman. That is all I need say

about the factual background.

The conclusion I reach is that as regards the first

category, the plaintiffs claim that the defendants could not

 

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properly have obtained the documents under do order which

specifically released them into the public domain is flimsy.

There is a triable issue whether the defendants obtained the

second category of documents directly or indirectly from

Mr. Armstrong or Mr. Flynn or, as Mr. Miller claims, from

another source unaffected by any duty of confidence to the

plaintiff. The decision of the judge who hears that issue

may well turn on the view he takes of the credibility of

Mr. Millers evidence.

With that in mind, I turn to the two grounds

advanced to restrain publication or use of these documents

and the information contained in them.

Confidentiality

The plaintiffs' case is that Mr. Armstrong owed it

a duty to keep the archival material confidential and that

the plaintiffs' correlative right to prevent disclosure by

Mr. Armstrong is binding on any person who comes into

possession of the archival material directly or indirectly

through a breach of that duty by Mr. Armstrong. The first

difficulty which confronts the plaintiffs is that it is well

settled that the only person who can complain of a breach of

confidence is the person to whom the duty of confidence is

owed (see Fraser v. Evans (1969] 1 Q.B. 349). The plaintiffs

cannot rely on the duty of confidence, if any, in respect of

the diaries which was owed to Mr. Hubbard. Similarly, the

plaintiffs cannot rely on the duty of confidence, if any,

owed to the writers or recipients of the letters (the letter

to Mr. Hubbard from his mother, or the letters written by Mr.

Hubbard in category B). Prima facie the writer or the

recipient of each of the letters is the only person who could

assert confidentiality.

Mr. Newman had two answers to this difficulty. The

first was that the material in respect of which a duty of

confidence was owed by Mr. Hubbard was entrusted at his

direction or with his consent to a Church of which he was the

founder and which is in substance the living embodiment of

his beliefs and teaching. In the unusual circumstances of

 

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this case, it is said, the Church can claim to enforce the duty

of confidence owed to Mr Hubbard in his place. The second was

that apart from any duty of confidence owed to Mr Hubbard, Mr

Armstrong owed a duty to the Church as his employer on whose

behalf he collected material to be stored in the archives. In

considering these submissions it is, I think, important to bear

in mind that the duty of confidentiality owed to Mr Hubbard and

the duty of confidentiality owed by Mr Armstrong to the

plaintiffs as his employer are separate and distinct. Prima

facie the maker of a diary intends the contents to be kept

confidential, and if he entrusts it to another a duty of

confidentiality arises.

An employee may also in the course of his employment come

into possession of material (for instance a list of customers and

their requirements) which the employer has a legitimate interest

in keeping confidential. It does not follow from the fact that

Mr Hubbard had or may have had an interest in keeping

confidential the contents of his diary that Mr Armstrong owed a

similar duty to the plaintiffs. The plaintiffs must be able to

show that there is something in the nature of the material

gathered together by Mr Armstrong or in the terms of his

employment which give rise to a duty not to divulge that material

to anyone outside the Church. It can hardly be said that that

duty extended to every part of the vast mass of material

collected by Mr Armstrong from a wide variety of sources -- in

part, at least, for the purpose of preserving it for Mr Hubbard's

biographer.

Mr Newman's answer to this difficulty was that in the

circumstances of this case the Church can be regarded as standing

in Mr Hubbard's shoes and can avail itself of the same rights of

confidentiality which he had. Alternatively, it is said, the

material gathered together by Mr Armstrong dealing, as it does,

with the development of Mr Hubbard's personality and with the

 

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discoveries or revelation which lead to the foundation of the

Church is part of the arcanum of the Church and should not be

divulged to those outside the Church. These are novel arguments

and seem to me to invite an extension of law which the court

should be cautious of making in interlocutory proceedings.

Moreover the argument leads Mr Newman into a further difficulty.

Public interest

The affairs, the doctrines and activities of the Church

are a matter of legitimate public interest and concern. An

official investigation into these matters was carried out by the

late Sir John Foster many years ago and following his report

entry by alien scientologists into the United Kingdom was barred.

I should add that this bar was lifted in 1980. The doctrines and

activities of the Church have been considered by the courts in a

number of cases, in particular Re B & G Minors [1985] Family Law

Reports 134, where Latey J. deprived a father and stepmother of

the custody of infants which he would otherwise have given them

on the grounds that they were members of the English branch of

the Church. That decision was affirmed by the Court of Appeal.

Of course the Church was not a party to those proceedings, but

that point was not overlooked and indeed was dealt with

specifically by Dunn L.J., who said at p.502:

"In this case it was in the interests of the children that
the judge should not only hear evidence about scientology
but should make definitive findings upon it, otherwise he
could not assess the risk to the children if they
continued to be brought into contact with the father. In
any event, no application was made to the judge for the
Church to be joined as a party and there has been no
appeal against the refusal of the Registrar to allow an
application for the Church to be joined in this court."

In the Court of Appeal the decision of the trial judge was

attacked on the ground that he had made observations critical of

Mr Hubbard and that these were matters which ought not to have

been taken into account. As to that Dunn L.J. said, also on

p.502:

 

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"It seems to me, with respect, that it was unnecessary for
the judge to have gone into the detail in which he did,
but when one is considering a set of beliefs it is, I
should have thought, relevant to know the sort of person
who is the original proponent of those beliefs."

Purchas L.J. similarly observed on p.508:

"The behaviour of Mr Hubbard was an integral part of the
whole context of mainline scientology, an examination of
which the judge had a duty to make and which he was
entitled to announce as part of the background
justification for his findings."

As I have said, the doctrines and activities of the Church

are matters of legitimate public concern. Mr Hubbard is, as Mr

Newman himself forcefully expressed it, the revered founder of

the Church. He is believed by members of the Church to be

someone whose appearance on this earth was an event of cosmic

significance. Mr Hubbard's life history and the story of the

psychological discoveries made by him and of his revelations are

matters in respect of which large claims are made in Mr Hubbard's

writings and by the Church. In these circumstances the life of

Mr Hubbard, his relationship to the Church and the circumstances

in which the Church was founded are also matters in which the

public has a legitimate interest. Of course that does not mean

that everyone has carte blanche to disregard every bond of

confidence affecting any matter communicated to them and

concerning Mr Hubbard. The public interest in maintaining the

bonds of confidentiality must be weighed against the legitimate

public interest in the affairs of the Church and its history and

the history of its founder.

However, I have read Mr Miller's biography, or the larger

part of it, and it is to my mind clear that the public interest

in the affairs of the Church and in the life of its founder far

outweigh any duty of confidence that could possibly be owed to Mr

Hubbard or the Church. The diaries covering the years when Mr

Hubbard was between 16 and 18 years old contain direct

contemporaneous evidence of his activities and thoughts at the

 

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time are essential if his early development and

achievements, for which, as I have said, large claims are made by

the Church, are to be properly evaluated. The letter to his

mother is a letter of the kind that an affectionate and

responsible parent would write to a son starting at a new school.

It is of importance in understanding his relationship to his

parents. It is evident from reading the letter to his wife that

it was written at a time which was critical in the development of

ideas and beliefs that later became the doctrines of the Church.

The letters to Helen O'Brien similarly relate to Mr Hubbard's

relationship to someone who had given financial backing to an

earlier movement called Dianetics founded by Mr Hubbard, which

later evolved or was subsumed into the Church. Mr Miller

interviewed Helen O'Brien or had telephone conversations with her

and the letters form a natural part of the narrative of his

account.

It is in my judgment plain beyond question that the

legitimate public interest in Mr Hubbard as the founder of the

Church in the circumstances in which it was founded and in

motives which led to its foundation far outweigh any duty of

confidence that could conceivably attach to any of the documents

in issue, even assuming -- contrary to my view -that Mr

Armstrong owed the same duty of confidence to the Church which he

owed or would have owed to Mr Hubbard if living.

Shortly stated, the Church is an active proselytising

church and in its efforts to obtain converts the personality,

qualifications, history and intellectual and moral development of

its founder are matters on which the Church itself relies. The

public equally has an interest in evaluating the image of Mr

Hubbard so projected. The Church having collected this material

cannot claim a monopoly in it and release to the public only that

information which it chooses to make available.

 

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The order of the Californian court

I can deal with this point shortly. Mr Newman referred me

to Dicey and Morris and the well-settled principle that the

judgment of a foreign court may be enforced if and to the extent

to which it creates an obligation and is recognised by English

courts as made by a court having jurisdiction and is not tainted

by fraud and if the enforcement is not contrary to English public

policy or in breach of the rules of natural justice.

I do not find it necessary to examine the foundations or

limits of this doctrine or the circumstances in which the English

courts will grant injunctive relief. As I understand the

position, while the Superior Court has decided that the archival

material was the property of the plaintiffs and that Mr Armstrong

was guilty of conversion, it has not finally decided that in

respect of all its archival material Mr Armstrong owes a duty to

the plaintiffs to keep the archival material and all information

derived from it confidential which is enforceable against him and

all other persons who have come into possession of copies of any

of this archival material and of information derived from it.

The sealing orders and all the orders of the Superior Court were

interlocutory and cannot be relied on as founding such a duty.

Moreover, in so far as considerations of comity have to be

considered, they must be weighed against -- and in my judgment

are plainly outweighed by -- the public interest to which I have

already referred.

Delay

The plaintiffs became aware of Penguin Books' intention to

publish a biography of Mr Hubbard written by Mr Miller at latest

in May of this year. They had been aware that Mr Miller was

writing a biography and that he had been in contact with Mr

Armstrong for some time. They were told by Mr Armstrong in the

Summer of 1986 that Mr Miller might well have some archival

material. Nothing was done to obtain any undertaking by Mr

 

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Miller that this material would not be used. The proof copies

were available and were circulated in confidence to persons

concerned by Penguin Books on August 5th. The plaintiff obtained

a copy of the proofs and exhibited it -- wrongly described as a

manuscript -- to the affidavit in support of the application. No

explanation has been given as to how or more importantly when

they obtained a copy of the proofs. This application was made on

29th September, by which time the plaintiffs must have known that

the printing of the first run was complete and that the book was

ready for distribution to wholesalers and retailers. The

application was thus made at a time, whether calculated or not,

when it would give rise to the greatest possible damage and

inconvenience to Penguin Books.

In the absence of any evidence as to when the plaintiffs

obtained a copy of the proofs and of the reasons for delaying

thereafter in instituting proceedings, if there was delay, the

apparent delay is, in my judgment, in itself sufficient to bar

any claim for interlocutory relief.

Mr Newman submitted that the plaintiffs could not be

criticised for delay, which could not on any view exceed the two

months since 5th August, bearing in mind the huge task of

relating the material in the book to the thousands of documents

in the archival material. The short answer to that submission is

that it is plain on a cursory reading of the book that

substantial use is made of Mr Hubbard's diaries which they must

have known were part of the archival material.

Clean hands

Mr Lightman submitted that the plaintiffs do not come to

this court with clean hands. He relied upon the fact that the

plaintiffs obtained a copy of the proof, said to have been

circulated within a narrow circle and which was plainly the

subject of confidence, in circumstances which are unexplained.

He also relied upon the doctrines of the Church which have been

 

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frequently commented on, in particular in Hubbard v. Vesper

[19721 2 Q.B. 84.

On this last point Mr Newman submitted that unlike the

Vesper case no link exists between the doctrines and conduct

complained of and the matters in issue in this action. He

reminded me of the often cited passage in the judgment of Lord

Chief Baron Eyre in Derry v. Winchelsea 1 Cox 318 that:

"The principle that a litigant must come to court with
clean hands does not mean a general depravity, it must
have an immediate and necessary relation to the equity
sued for. It must be a depravity in a legal as well a
moral sense."

I do not propose to go into this aspect of the case, save only to

observe that one statement of policy to be found in the writings

of the Church is in substance that litigation may be resorted to

in order to stifle criticism. This litigation to my mind

precisely answers the description of oppressive litigation, that

is, litigation (which the authors equally clearly had in mind)

which is not bona fide launched to protect any legitimate

interest of the church in preserving confidentiality in

information contained in Mr Miller's biography.

For these reasons I have reached the conclusion that this

application is both mischievous and misconceived and must be

dismissed and in my judgment dismissed with costs to be taxed and

paid forthwith.

Anything else, Mr Lightman?

MR LIGHTMAN: On the costs I would ask your Lordship to direct that
the costs should be paid on an idemnity basis.

MR JUSTICE VINELOTT: Well, Mr Lightman, these are interloctury
proceedings. What I can do is to order that the costs be taxed
and paid forthwith on a common fund basis, but to reserve for a
future argument, in the light of any evidence adduced at the
trial, the question whether they should be taxed again upon some
other basis.

MR LIGHTMAN: If your Lordship pleases.

 

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MR JUSTICE VINELOTT: I do not think on an interlocutory
application I really would be justified in making an order -----

MR LIGHTMAN: One other small matter on costs I would like to mention
to your Lordship. I do ask your Lordship to ask for a
certificate for three counsel. Can I explain to your Lordship
the special circumstances?

MR JUSTICE VINELOTT: Yes.

MR LIGHTMAN: Your Lordship will have in mind the time scale when
this matter came and the immense amount of work that has had to
be expended throughout the period on preparing our evidence to
get this matter proceeding, in those very special circumstances
I do ask your Lordship for certificate for three counsel.

MR JUSTICE VINELOTT: Yes. Mr Newman?

MR NEWMAN: My Lord, there are two matters relating to costs. Your
Lordship has ordered standard costs rather than indemnity costs,
but I would submit that your Lordship should reconsider that part
of the order which says to be taxed and paid forthwith for this
reason, my Lord: that at the trial all sorts of evidence may
emerge which would put a different complexion or may put a
different complexion on matters, and I would submit that this is
an example of an application where your Lordship ought to make
what is the usual order which is defendant's costs (inaudible)
and then if at the trial matters emerge which put a different
complexion -- and the plaintiffs were to win despite, I
appreciate, your Lordship's observations today -- they would not
have to pay the costs of this application. On the other hand, if
they lose then they would. That, in my respectful submission, is
the fair balance which I ask your Lordship to make.

MR JUSTICE VINELOTT: Mr Newman, I hid of course considered before I
came into court whether I should make that form of order which is
-- I will not say the usual order -- but the one most frequently
made or order payment of costs to be taxed forthwith. I have
come to the conclusion, for reasons which I think will be
apparent when reading my judgment, that this application made in
the circumstances in which it was made and at the time when it
was made was one which ought not to have been made, at least
without further evidence of the kind which I have already
explained. In the circumstances I think that the costs should be
taxed and paid forthwith.

MR NEWMAN: If your Lordship pleases. I would resist my learned
friend's application for certificate for three counsel. Of
course I would not dream of opposing a submission on the basis
that it was appropriate to have leading counsel and one junior

 

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counsel, but whilst it may be wholly appropriate on a "solicitor
and a client basis for those instructing my learned friends to
have briefed three counsel, on a party and party basis of
taxation it would not, in my respectful submission, be reasonable
to order a certificate for three counsel.

MR JUSTICE VINELOTT: Mr Newman, I am mindful of the fact that you
have not had the advantage of leading counsel and that you have
had to manage with the assistance of one junior, but I think the
volume and complexity of the evidence in this case and the
shortness of the time scale was such that the defendants were
entitled to have that additional assistance.

MR NEWMAN: If your Lordship pleases. The only other matter is this:
arrangements are in hand -- I am not quite sure how advanced they
are -- to move to the Court of Appeal hopefully this afternoon.
Even appreciating the findings of your Lordship and the way in
which your Lordship has expressed them, may I ask this: that your
Lordship will in fact request my learned friend to give an
undertaking until the end of today. Now, that cannot make any
difference in terms of distribution.

MR JUSTICE VINELOTT: Yes, I cannot believe that anything else is
going to be done today. What I would like ideally is for an
undertaking to be given for a period which will suffice to enable
the matter to be brought to the Court of Appeal and for the Court
of Appeal then to decide, having regard to its other commitments
and to the nature of the case and the urgency, when the case will
be heard and whether any interloctury orders should be continued
in the meantime. As I understand it, arrangements are in hand
for the matter at least to be mentioned in the Court of Appeal
today and I hope that an undertaking will be forthcoming to cover
today.

MR LIGHTMAN: Might I take instructions? (After a pause) Can I give
an undertaking until the hearing before the Court of Appeal or,
say, four o'clock today.

MR JUSTICE VINELOTT: Let us say 4.30.

MR LIGHTMAN: Can I explain, it is not a matter that any time is
unimportant.

MR JUSTICE VINELOTT: Of course, I am very well aware of
the ---

MR LIGHTMAN: If I can give an undertaking until 4.30 or the hearing
before the Court of Appeal, whichever is the earlier, I shall be
grateful.

 

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MR JUSTICE VINELOTT: For my part, if it becomes necessary to make a
further application because the Court of Appeal cannot even have
the matter mentioned then I will be available to hear it.


 

 

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