Public interest outweighs private duty

The Times Law Report, Oct 15 1987

Church of Scientology of California v Miller and another

Before Mr. Justice Vinelott
[Judgement October 9]

Public interest in the affairs of the Church of Scientology outweighed any private duty of confidence Mr Justice Vinelott held in dismissing in the Chancery Division an application by the church for an interim injunction, pending trial of an action against Mr Russell Miller and Penguin Books Ltd, to restrain them from distributing and publishing in connection with a biography entitled Bare-Faced Messiah, two photographs of Mr L. Ron Hubbard, the founder of the church, and extracts from his diaries and from certain letter written by or to him. Publication of those was intended to be effected on October 26, in connection with a biography of the late Mr Hubbard written by Mr Miller.

Later in the Court of Appeal Penguin Books gave an undertaking that the book would not be published, sold or displayed to the public until after judgement in the plaintiff church's appeal, which is to be heard on October 19. But distribution of the book was allowed to proceed, wholesalers and retailers being notified of the terms of the undertaking.

Mr Alan Newman and Mr Jacques Algazy for the church; Mr Gavin Lightman. QC, Mr Michael Briggs and Mr Philip Jones for Mr Miller and Penguin.

MR JUSTICE VINELOT said that the Church of Scientology of California was registered under Californian law as a religious organisation, but its subsidiary or associated organisation in the United Kingdom was a company which had not been registered as a charity, and it should therefore not be assumed that it would he recognised in England as established for the advancement of religion.

Mr Miller was an author with a reputation for investigative journalism. Proof copies of his biography of Mr Hubbard became available within a limited circle on August 5. The plaintiffs obtained a copy, but precisely how or when was not clear from the evidence. The intended date of publication was October 86, and serialised extracts from the book were intended to appear in successive editions of The Sunday Times.

Distribution could not be delayed much longer if the intended date was to be adhered to. The plaintiffs' writ and notice of motion seeking interim injunctions were served on September 29.

The injunctions were sought on three grounds:

First, it was said that the plaintiffs owned the copyright of two photographs, one of which, of the head and shoulders of Mr Hubbard, was to be used on the dust jacket and the other of Mr Hubbard with members of the plaintiff's staff, as an insert in the book.

Second, it was said, the book contained quotations and information derived from confidential letters which came in confidence to a Mr Armstrong while an employee of the plaintiffs and that they were entitled to protect that confidence.

Third, it was said that the documents in question wore obtained by Mr Miller in breach of a scaling order made by the Superior Court of California in litigation to recover the documents from Mr Armstrong who had ceased to be employed by the plaintiffs.

Having considered the evidence as to the photographs, his lordship concluded that, even if the plaintiffs owned the copyright in them, their use in breach of copyright could not possibly harm them, whereas the defendants' plans for launching the book would be grievously impaired if they could not be used and held that the plaintiffs were not entitled to interlocutory relief in respect of them.

The position as to the documents was that Mr Armstrong, a senior employee of the plaintiffs, had been engaged to protect and preserve Mr Hubbard's personal papers while Mr Hubbard was still alive.

When Mr Armstrong left the church, he took with him a substantial amount of the archival material, which the plaintiffs then took proceedings to recover. In those proceedings the plaintiffs obtained a sealing order.

The documents included diaries kept by Mr Hubbard during the years 1927 to 1929, when he was 18 years old, a letter from his mother also in 1929, a letter to his first wife, and another letter from a Miss O'Brien.

The plaintiffs' case was that Mr Armstrong owed them a duty to keep the archival material confidential, and that their right to prevent disclosure by Mr Armstrong was binding on any person who came into possession of it directly or indirectly through Mr Armstrong.

The first difficulty confronting that argument was that the only person who could complain of a breach of confidence was the person to whom that duty was owed: see Fraser v Evans ([1969] I QB 349). The plaintiffs could not rely on the duty of confidence owed to Mr Hubbard.

It was argued that the material had been entrusted to the church of which he was the founder and which was the living embodiment of his belief and teaching and that in the unusual circumstances of this case the church could claim the duty of confidence in his place.

The affairs, doctrines and activities of the church were a matter of legitimate public interest and concern. An investigation into those matters was carried out by the late Sir John Foster many years ago, and following his report, entry into the United Kingdom by alien scientologists was barred.

The doctrines and activities of the church wore also considered in a case where the parents of infants were deprived of their custody. because they were members of the church, which custody would otherwise have been given to them.

Mr Hubbard was the revered founder of the church, and his appearance on the Earth was treated by church members as an event of cosmic significance. It must follow that his life, his relationship to the church stud the circumstances in which the church was founded were clearly matters in which the public had a legitimate interest.

That did not mean that anyone had carte blanche to disregard a duty of confidence. But the public interest in maintaining the bond of confidence must be weighed against the legitimate public interest in the church's affairs and in the history of its founder.

His Lordship had read Mr Miller's biography and it was clear that the public interest far outweighed any duty of confidence that could conceivably be owed to Mr Hubbard or to the Church.

The materials in question were essential if his early development and achievements were to be properly evaluated.

Shortly stated, the church was active and proselytising, and in its efforts to obtain converts, the personality, qualities, history and character of its founder were matters which the church itself relied upon, and the public had an interest in evaluating the image on which the church relied.

As to the order of the Californian court, his Lordship did not think it necessary to examine the foundation and limits of the principle on which the judgements of a foreign court could he enforced in this country.

The principle could have no application to an interlocutory decision of a foreign court sealing documents pending the hearing of an action. Public interest clearly also outweighed the order in the Californian proceedings.

The plaintiffs had become aware in May of Penguin's intention to publish the biography, but haul taken no action until September 29 to seek to prevent publication. Their application was made at a time whether calculated or not, when the greatest possible damage and inconvenience would be caused to Penguin Books.

In the absence of any sufficient reasons for the delay. the delay itself would operate as a bar to any claim to interlocutory relief. In his Lordship's view the application was oppressive. and was not brought to protect any legitimate interest. It was both mischievous and misconceived

[On a later application to the Court of Appeal, Penguin Books gave an undertaking that the book would not be published, sold or displayed to the public until after judgement in the plaintiffs' appeal, to be heard on October 19. Distribution, however, could go ahead, the wholesalers and retailers being notified of the terms of the undertaking.]

Solicitors: Hamida Jafferji; Peter Carter-Ruck & Partners.