Church appeal to ban book fails

The Times Law Report, Oct 23 1987

Church of Scientology of California v Miller and Another

Before Lord Justice Fox and Sir George Waller

[Judgement October 22]

The public interest in publication of a book concerning assertions of fact in relation to the founder of the Church of Scientology far outweighed any duty of confidence owed by the author to the founder.

The Court of Appeal so held dismissing an appeal by the Church of Scientology of California from the refusal by Mr Justice Vinelott (The Times October 15) of an application by the church for an interlocutory 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 letters written by or to him

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

LORD JUSTICE FOX said that the Church of Scientology was founded by Mr. Hubbard, who died in 1986. Mr Miller had written his biography due to be published by Penguin on October 26.

Pursuant to an order of Lord Justice Nicholls, pending an appeal from Mr :Justice Vinelott's decision, Penguin were at liberty to distribute the book to wholesalers and retailers upon terms that the books were not to be sold before October 26.

The grounds on which the church sought to restrain publication of the book were, inter alia:

1. The church was the owner of the copyright in two photographs, one on the dust cover of the book and the other contained therein and publication would be a breach of the copyright.

2. The book contained quotations and materials from diaries and documents of confidential nature communicated to an employee of the church, which was therefore entitled to restrain their use by Mr Miller.

The judge, however, refused the application, on the ground of the church's delay in seeking relief. He was right.

By May 1987 the church was aware of Penguin's intention to publish: the book. The proof copies were available to it on August 5. But the application was not made until September 29, when the preparations for the publication were far advanced and disturbance of the arrangements was likely to cause the author and publishers the maximum embarrassment.

A plaintiff seeking interlocutory relief had to act with speed. As the judge remarked, a cursory glance at the book would have shown the church that substantial use was being made of Mr Hubbard's diaries and other archival material.

Although it was sufficient to dismiss the appeal on the ground of delay, his Lordship went on to consider the other grounds.

If the church had an arguable case on breach of copyright and breach of confidence and would not be adequately compensated by damages, would the church be able to meet any undertaking in damages if the defendants won at the trial?

If publication was restrained until trial, the publishers would be exposed to substantial and unquantifiable losses in sales and reputation as reliable publishers.

The damages to which they would be entitled if the church lost its claim would be substantial. On the evidence, those losses might exceed the church's resources.

In any event, the duty of confidence alleged had to be balanced against the public interest in the church.

The church was an active proselytising church with several million members The public had an interest that assertions of fact should be exposed to public criticism. The founder was dead and the material was not alleged to be untrue.

In all the circumstances, the balance of convenience was decisively in favour of refusing an injunction for a right of confidence.

Sir George Waller agreed.

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