12.11.03

Has Prince Charles breached his own Confidence?

As Prince Charles leaves the Karma of India for the controversy of his courtiers his troubles seem to go from bad to worse.

Whether supper at Highgrove with Camilla and William will help his resolve remains to be seen but the lawyers he has supposedly instructed in relation to bringing a Breach of Confidence action will have their work cut out.

Never mind Michael Douglas’ and Zeta Jones’ disappointment at their damages but Breach of Confidence is not a litigants best friend. From 1977 when Lord Denning dismissed Tom Jones' action against disclosures by his agent through to the Court of Appeal ruling on Naomi Campbell and Mirror Group this year, if your life is not private then protecting confidence in its privacy may not be that simple.

On the face of it you would think Prince Charles should have a clear cut case. His courtiers and employees are employed in a role that involves a necessary quality of confidence and receive and impart information that comes with an obligation of confidence. In spilling the beans to third parties or the press any employee would be engaging in an unauthorised use of information to the detriment of the person (Prince Charles) to whom that information belongs.

So de facto the legal requirements for confidence and proof of breach appear to be there. So how come the only injunction flying around is that belonging to Michael Fawcett?

What's Prince Charles waiting for? Well, he may have inadvertently sabotaged his own case. There are two qualifications to being able to call upon ones right to confidence:
First, one has not put the private or confidential details in question into the public or media domain (Jamie Theakston's attempt to suppress reports of his antics in a Mayfair brothel failed on this account). Second there is not a competing public right to know or freedom of expression issue that can compete with the confidentiality right.

Aside from what the PR gurus are saying, let's analyse Prince Charles' actions from a lawyers point of view:
1: He goes on record discussing the breakdown of his marriage on prime time television (before Diana makes it 1:1 in an interview with Martin Bashir)
2: Previous gay rape allegations involving St James' palace are denied and investigated but the surrounding media frenzy is very well documented publicly.
3: The Burrell trial dramatically collapses after top level Royal intervention.
4: Burrell is not injuncted or issued with proceedings for breach of confidence before or after publishing his book.
5. Charles put himself in the frame last week by going on record as saying he is the person at the centre of allegations but he denies it all.
6: Former press adviser Mark Bolland discloses details of a conversation with Sir Michael Peat about whether Charles is bi-sexual - he is not injuncted or issued with a writ.

So, were Prince Charles to bring an action for breach of confidence he could well find himself being estopped from bringing it on the basis that he has put himself in the frame of that being discussed and importantly, not acted against existing infringers.
Even if he obtained an injunction against George Smith (who is making the various lurid claims) he may not be able to persuade a court that suppressing publication of the story behind the claims is in the public interest and the media's freedom of expression may win over. The media are of course being assisted in this latter point by their foreign counterparts who are free to print the allegations and surrounding stories (Italian papers that were destroyed this weekend are now back on sale in London!)

So Prince Charles may find that Max Clifford will be able to help him more than his legal team with this one.

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