Scandalous Campbells of Argyll
Rugged, handsome and fun-loving, the Duke of Argyll had been held prisoner of war by the Nazis for five years and had been unlucky in love.
Twice divorced, he first met millionaire's daughter, and divorcee, Margaret Whigham on a blind date in London.
Pretty and witty, this sought-after socialite had been a stunning debutante. One of the most photographed women of her day, she was highly intelligent and mixed in Royal circles.
Her butler, Simpson, welcomed house guests including Noel Coward, Cary Grant and John Paul Getty to her Mayfair home. And she sipped cocktails with stars such as Lauren Bacall, Deborah Kerr and Joan Collins.
One day she needed an extra companion for a lunch and someone suggested Ian Douglas Campbell.
They clicked and on March 22, 1951, they married at Caxton Hall Register Office. He took her north to his ancestral seat, posing for pictures carrying her over the threshold and into her new life at Inveraray Castle.
But within a few years, the marriage was crumbling. Divorce papers were filed in 1959 and, after a sensational 11- day hearing, the Duke got his divorce on the grounds of her adultery. And details of her salacious behaviour inside the Georgian house her father left to her at 48 Upper Grosvenor Street were laid bare.
She was pilloried as a high-class harlot in a four-and-a-half hour judgement read out by Lord Wheatley who said: "She is a highlysexed woman who has ceased to be satisfied with normal sexual activities and has started to indulge in disgusting sexual activities to gratify a debased sexual appetite.
"A completely promiscuous woman whose sexual appetite could only be satisfied by a number of men, whose promiscuity had extended to perversion and whose attitude to the sanctity of marriage was what moderns would call enlightened, but which in plain language was wholly immoral."
Far away from the oak-panelled Court of Session, the Duchess was in Paris - at the exclusive salon of Jacques Griffe for a dress fitting - as the words were read out on Wednesday, May 8, 1963.
And she intended to carry on living as she had always done - despite the destruction of her character and reputation.
This remarkable lady was born Ethel Margaret Whigham in December 1912.
Her parents George and Helen had a modest background. He was a £1.50-a-week engineering apprentice who worked his way up to become head of a huge textiles combine. The family moved to New York but returned to Scotland for Margaret's birth and she was then privately educated in the US - returning to London in 1930 as a deb.
Briefly engaged to the 7th Earl of Warwick, she was just 20 when she married US amateur golfer Charles Sweeny and had two children - a son and a daughter, who was to later also marry an aristocrat, the Duke of Rutland.
During World War II, her life was changed forever when she tumbled down a lift shaft visiting her chiropodist in Bond Street. She said: "I fell 40ft to the bottom and cracked the back of my head against the wall."
Her marriage then fell apart and divorce followed. She got engaged to a Texan banker and had numerous relationships before she met the Duke.
As Mrs Sweeny, her life had been one long party, mixing with royalty, politicians and showbiz stars.
She wrote: "I had wealth, I had good looks. As a young woman I had been constantly photographed, written about, flattered, admired, and was included in the 10 Best-Dressed Women in the World list. I was also mentioned by Cole Porter in the words of his hit song You're the Top.
"The top was what I was supposed to be. I had become a duchess and mistress of an historic castle. My daughter had married aduke. Life was apparently roses all the way."
The Duke himself had not lived a quiet life and had a reputation as a heavy-drinking gambler. In all, he married four times.
His first wedding, in December 1927, was to Janet Gladys Aitken - daughter of the Press baron Lord Beaverbrook. They met in a casino when he was 24 and she was just 17.
They had a daughter, Lady Jeanne, who went on to marry American writer Norman was told her parents' marriage got off to an inauspicious start after the groom took his bride to a brothel for a demonstration of marital duties.
The marriage was doomed from the start.
He gambled and Janet later remembered him as "long on charm but short on judgment at the gaming tables".
The couple divorced in 1934 and he remarried Louise Hollingsworth Morris Clews in November the following year.
They had two sons - an heir Iain and Colin Ivar - before they divorced in 1951, on the grounds of his adultery with Margaret.
To outsiders, his third marriage seemed an ideal match. But, in reality, it wasn't.
By early 1954, he accused her of a string of affairs. And he claimed that by the start of 1959, she had admitted her infidelity.
As the relationship soured, a welter of court cases were launched.
And he put a bolt on his bedroom door to stop her getting in.
He later won an order banning her from Inveraray Castle. She challenged it and the public got a taste of how the fairytale marriage had turned into a nightmare.
In response to his allegations of adultery, she claimed he drank to excess, assaulted her and refused to speak to her. She also claimed many of the valuables in Inveraray were hers under a deed of gift made by him.
The Duke claimed she had gone to the castle when he was away and brought a locksmith and ironmonger to help her get into his study, broke records, took an oil painting, photo albums and two boomerangs.
She was finally granted permission for a one-day visit to the castle to pick up personal items. Warmly greeted by her pets, she left with 500 records, a wooden ashtray, a tartan cloth and an engraved paper knife.
The Duchess, now 45, also took court action against the Duke's daughter, Lady Jeanne, for trespass after she gained unauthorised entry to the Mayfair house and seized personal property.
This raid was key to the divorce because the Duke got his hands on his wife's four-year diaries and the compromising photographs.
The diary entries were explicit about her affairs, but the Polaroids - taken in her bathroom - were explosive.
Wearing nothing but a string of pearls she was seen performing a sex act on a man whose head was cropped out of the photographs.
There were also pictures of what turned out later to be a second, naked headless man.
Armed with this evidence, the Duke sued for divorce in October 1959.
Allegation followed allegation in an incredible war-of-words that kept the lawyers fully employed.
The Duchess raised the stakes by questioning the legitimacy of her stepson - the Duke's son and heir. The ex-wife and the heir sued as a result.
The Duke wanted to quash rumours. The Duchess denied she had spread any, and an injunction was granted peaceably - but it didn't silence her for long.
As the Duke pursued his adultery claims, she cross-petitioned and alleged that he was having an affair with her own step-mother - Mrs Jane Whigham, 47. She eventually withdrew the preposterous claims and paid out £25,000 when she was sued.
After three years of wrangling, the case was finally heard over 11 days in 1962 and it wasn't until May 1963 that judge Lord Wheatley issued his damning verdict.
While the Duke had originally listed 88 possible lovers, the judge found she had committed adultery with three.
JOHN COHANE: Describing the American businessman who she met in New York, the judge stated: "A man who admitted he had the morals of a tomcat ... a self-confessed wolf ... and a man who carried out a campaign of lechery. He was a brash voluble man trying to take himself out of the arms of the incriminating situation of his own making."
HARVEY COMBE: Former press officer for the Savoy Hotel, London, who lived in Ross-shire, was described as "an unreliable witness" and had sex with her in London and Spain.
SIGISMUND VON BRAUN: A German diplomat, whose letters were regarded as sufficient evidence to prove adultery.
However, the identity of those in the pictures was not revealed in court.
Lord Wheatley also slammed the Duke, who had admitted showing pornographic pictures to people at a party in New York, stating: "I do not commend his tastes or habits."
He reserved his sharpest condemnation for the Duchess: "Her explanations were unconvincing ... she was lying. She seemed to me to be a malicious woman."
Lord Wheatley granted the divorce ending 12 years of an explosive marriage.
After the divorce, the Duke wed, for the fourth time, to American Mathilda Costa Mortimer and they remained married until he died of a stroke in 1973 at the age of 69.
The Duchess continued to go to St Moritz for skiing, Nassau for sailing and the south of France for sun.
But her capital was depleted by high living and litigation.
She died penniless, in her sleep, in a nursing home in 1993. She was 80.
The diary entries were explicit about her affairs, but the Polaroids - taken in her bathroom - were explosive
Unidentified lover in Duchess of Argyll divorce case exposed as not one but two men - a cabinet minister and a swashbuckling movie starIt was a scandal that rocked the nation: an aristocratic beauty was photographed performing fellatio on a lover, while shots of another man gratifying himself were unearthed in her boudoir.
The sexually explicit Polaroid snaps proved central in the 1963 divorce of the Duke and Duchess of Argyll, and became part of a government investigation.
The duchess's reputation was ruined, but her lover escaped blameless, his identity preserved for almost 40 years by the camera cutting him off at the neck.
Tonight, the mystery of the "headless man" - or rather headless men - is resolved for the first time, with new evidence identifying not one, but two, lovers.
The man in the more notorious shot is unveiled as Duncan Sandys, then a cabinet minister, and his masturbating rival as Douglas Fairbanks Jr, the Hollywood legend who dallied with Marlene Dietrich and married Joan Crawford.
The two men's identities are revealed in a Channel 4 documentary to be shown tonight, Secret History: The Duchess and the Headless Man, which draws on the memories of the duchess's confidante, who identifies Sandys, and previously unpublished evidence gathered by the nation's then most senior law lord, Lord Denning. This formed part of his inquiry into security risks following the resignation of the then secretary of state for war, John Profumo.
Sandys's identity is "conclusively proved", the documentary makers believe, by the duchess's claim that the only Polaroid camera in the country at the time had been lent to the Ministry of Defence, where Sandys was a minister. Fairbanks is nailed by his handwriting.
The Argyll case, heard in March 1963 - the same month John Profumo lied to the Commons about his relationship Christine Keeler - was the longest and most sensational divorce to occur in Britain.
Margaret Argyll, the only child of a self-made Scottish millionaire, was a society beauty who her husband alleged had slept with 88 men, including two cabinet ministers and three royals.
Profumo resigned in early June but, before the month was out, the precarious Macmillan government was rocked by another threat, and looked in danger of being toppled.
At a stormy cabinet meeting on June 20, Sandys, the son-in-law of Winston Churchill, confessed he was rumoured to be the person in the erotic shots, which, at that time, were presumed to be of one man.
He offered to resign but Macmillan managed to dissuade him by ensuring Lord Denning, who had been commissioned to investigate the Profumo scandal, also investigated the identity of the headless lover.
For this Denning, the master of the rolls, had a plan. On the four shots of the man in different states of arousal were handwritten captions: "before", "thinking of you", "during - oh", and "finished". If he could match the handwriting, he would find his man.
He invited the five key suspects - Sandys, Fairbanks, American businessman John Cohane, Peter Combe, an ex-press officer at the Savoy, and Sigismund von Braun, the diplomat brother of the Nazi scientist Werner von Braun - to the Treasury and asked for their help in a "very delicate matter".
As they arrived, each signed the visitor's register. Their handwriting was analysed by a graphologist, and the results proved conclusive. As the broadcaster Peter Jay, then a young Treasury official, tells the documentary: "The headless man identified by the handwriting expert and therefore identified by Lord Denning, though he didn't write this down in his report, was, in fact, the actor Douglas Fairbanks Jr."
Duncan Sandys, who in 1974 was given a peerage, appeared to be in the clear - a fact confirmed by a Harley Street doctor who concluded his pubic hair did not correspond with that in the masturbation photos.
But tonight's documentary confirms the other photograph clearly showed a different man whose identity the duchess hinted at to her close friend Paul Vaughan just before her death.
"She did say to me quite clearly that, 'Of course, sweetie, the only Polaroid camera in the country at this time had been lent to the Ministry of Defence,'" recalls Mr Vaughan. "If that wasn't running a flag up the flag pole, I don't know what was. She wanted someone to know." Analysis of the film suggests the photo was taken in 1957, at which stage Sandys held his defence post.
"We believe it's pretty definitive," said Dan Corn, the programme's producer. "It's ironic because he effectively got away with it by being cleared by Denning."
The duchess died in a Pimlico nursing home in July 1993, without even hinting at the identity of her other lover. But despite this discretion, she never recovered from her reputation being so besmirched during her divorce.
Summing up, the judge, Lord Wheatley, said: "She was a highly sexed woman who had ceased to be satisfied with normal relations and had started to indulge in disgusting sexual activities."
Margaret Whigham (December 1, 1912 - July 25, 1993), later Margaret Sweeny, was best known as Margaret, Duchess of Argyll, whose divorce case featured salacious photographs and scandalous stories.
She was born Ethel Margaret Whigham, the only child of Helen Mann Hannay and George Hay Whigham, a Scottish millionaire who was chairman of Celanese Corporation of England, North America, and Canada. After being educated privately in New York City, where she moved one week after her birth and lived until the age of 14, and making her debut in London in 1930, she announced her engagement to the Fulke Greville, Earl of Warwick (1911-1984), but the wedding did not take place. Her head had been turned by Charles Sweeny, an American amateur golfer, and she decided she was not in love with Lord Warwick enough. (She also had youthful romances with playboy Prince Aly Khan, millionaire aviator Glen Kidston, and publishing heir Max Aitken.)
On February 21, 1933, she married Charles Sweeny, with whom she had three children: a daughter, who was stillborn at eight months in late 1933; another daughter, Frances Helen (born 1937, later Duchess of Rutland), and a son, Brian Charles (born 1940). The Sweenys divorced in 1947. Briefly, Margaret Sweeny was engaged to a Texas-born banker, Joseph Thomas, of Lehmann Brothers, but he fell in love with another woman and the engagement was broken. Then, on March 22, 1951, she married Ian Douglas Campbell, 11th Duke of Argyll, as his third wife.
"I had wealth, I had good looks. As a young woman I had been constantly photographed, written about, flattered, admired, included in the Ten Best-Dressed Women in the World list, and mentioned by Cole Porter in the words of his hit song, 'You're the Top,' " she wrote later in life. "The top was what I was supposed to be. I had become a duchess and mistress of an historic castle. My daughter had married a duke. Life was apparently roses all the way."
In 1943, however, Margaret Sweeny had a near fatal fall down an elevator shaft while visiting her chiropodist in Bond Street. "I fell forty feet to the bottom of the lift shaft," she later recalled. "The only thing that saved me was the lift cable, which broke my fall. I must have clutched at it, for it was later found that all my finger nails were torn off. I apparently fell on to my knees and cracked the back of my head against the wall." After her recovery, Sweeny's friends noted that not only had she lost all sense of taste and smell due to nerve damage, she also had become sexually voracious. (As she had had a relationship with the married George, Duke of Kent before her marriage, this may have been a change in degree rather than basic predisposition.)
Introduced into evidence in the 1963 divorce case in which the duke of Argyll accused his wife of infidelity was a series of Polaroid photographs of her wearing her signature three-strand pearl necklace -- and only the necklace. Also included in the photographs with the duchess was a naked man, and though the photographs showed his genitalia and torso, they excluded his face. It was speculated that the "headless man" was Duncan Sandys, the minister of defence, who offered to resign from the cabinet. (Duncan Sandys, later Lord Duncan-Sandys, was a son-in-law of Winston Churchill).
Also introduced to the court was a list of eighty-eight men the duke believed had enjoyed the duchess's favors; the list is said to include two government ministers and three royals. The judge commented that the duchess had indulged in "disgusting sexual activities". Lord Denning was called upon by the government to track down the "headless man". He compared the handwriting of the five leading "suspects" (Duncan-Sandys, Douglas Fairbanks, Jr., John Cohane, an American businessman, Peter Combe, a former press officer at the Savoy, and Sigismund von Braun, brother of German scientist Wernher von Braun) with the captions written on the photographs. It is claimed that this analysis proved that the man in question was Fairbanks, long married to his second wife, the former Mary Lee Epling Hartford, but this was not made public.
Granting the divorce, Lord Wheatley, the presiding magistrate, said the evidence established that the duchess of Argyll "was a completely promiscuous woman whose sexual appetite could only be satisfied with a number of men".
Long afterward, it was claimed that there were at least two "headless men" in the photographs, Fairbanks and Sandys - the latter identified on the basis of the duchess's statement that the "only Polaroid camera in the country at that time had been lent to the Ministry of Defence". As for the duke of Argyll, he married in 1963, as his fourth wife, an American, Mathilda (née Mathilde) Coster Mortimer Heller, and died of a stroke in 1973, aged 69.
Margaret, Duchess of Argyll, wrote a self-serving, name-dropping, but nonetheless engaging memoir, "Forget Not," which was published by W. H. Allen in 1975, and she also lent her name as author to a guide to entertaining. Her fortune diminished, however, and the free-spending duchess eventually opened her London house, 48 Upper Grosvenor Street, for paid tours, but debts and ill-considered investments left her largely broke by the time she died in a nursing home in 1993. (In the duchess's youth, her father told Rosie d'Avigdor-Goldsmid, a close friend of his daughter's, that he feared what his only child would do once she had her entire inheritance.) The duchess never revealed the identity of the "headless man," and Fairbanks denied the allegation to his grave.
Resoundingly well-dressed and astonishingly coiffed (a reddish-brown, baroque-swirl bouffant was her trademark), Margaret, Duchess of Argyll, to no one's surprise, was famously self-involved. She once told the New York Times, "I don't think anybody has real style or class anymore. Everyone's gotten old and fat." More to the point, she described herself as "always vain." To the end of her life, her superficiality remained superbly intact, as evidenced by one exceptionally vapid quote: "Always a poodle, only a poodle! That, and three strands of pearls!" she said. "Together they are absolutely the essential things in life."
"Powder Her Face," a corrosive modern opera about the duchess's last days was written by composer Thomas Adès and librettist Phillip Hensher in 1995, for the Almeida Opera.
Lady Jeanne Campbell , who has died aged 78, was a journalist who reported for the Evening Standard from New York for many years; she was also the former wife of Norman Mailer, the daughter of the reprobate 11th Duke of Argyll and the favourite granddaughter of Lord Beaverbrook.
As a journalist she covered the funeral of John F Kennedy in 1963, observing memorably that Jackie Kennedy had “given the American people from this day on the one thing they always lacked — majesty”.
Lady Jeanne was wild. So numerous were her love affairs that James C Humes (a speechwriter for many American presidents) claimed in his memoirs, Confessions of a White House Ghostwriter, that she was the only woman to have known “Biblically” Presidents Khrushchev, Kennedy and Castro — and all, he claimed, within the space of a year. Humes suggested that Kennedy went through his paces at her Georgetown house in October 1963; Khruschev at his dacha in April 1964; and Castro in Havana the following May.
Jeanne Louise Campbell (sometimes known as Jean or Jeanie) was the daughter of Ian Campbell, the handsome playboy who was heir to Niall, the bachelor 10th Duke of Argyll, his eccentric first cousin once removed. Her mother was Janet Aitken, daughter of the proprietor of the Daily Express.
Jeanne’s parents had met at a casino in Le Touquet, when Janet was 17 and Ian 24. Janet later recalled that her husband had been “long on charm but short on judgment at the gaming tables”. They married in December 1927, but the union got off to an unpropitious start when the groom — intending to instruct his bride in her marital duties — took her to watch a display of graphic lovemaking in a brothel. He was soon selling his bride’s jewels to pay his gambling debts.
Jeanne was born on December 10 1928, and as her mother was recovering from serious haemorrhaging (from which she almost died) her husband again demanded her jewels; when she refused, he seized a shotgun and threatened to shoot himself. After hearing two shots outside the house Janet capitulated.
The following summer the young couple went to live at Auribeau in the South of France; but the casino soon beckoned, as did an American girl called “Oui Oui” Clews (later Ian’s second wife — his third was the famous Margaret, Duchess of Argyll). Janet decided to leave, and with the help of her father she escaped and made Jeanne a ward of court. Janet was a difficult mother, a heavy drinker. When Jeanne was about four, Lord Beaverbrook asked her: “What shall I do about your mother?”; the child replied: “Cut off all her money, grandpa.”
Between 1935 and 1940 Janet was married to Drogo Montagu, second son of the 9th Earl of Sandwich, but they had separated by the time he was killed on active service at the beginning of the war. Jeanne’s mother married for a third time in 1942, and after the war took her younger children to Canada, leaving behind Jeanne and her half-brother, William Montagu. Relations with her mother became increasingly stormy as she grew up; it was later suggested that she had been damaged by her mother’s casual attitude.
After the war Jeanne trained as an actress, even joining the Old Vic, before going down with pneumonia. In 1949 she went to live with Beaverbrook, and travelled with him to the Far East, Europe, Barbados and the United States.
While she remained close to her grandfather, particularly in his old age, he frequently berated her for her wilful and extravagant behaviour, once pointing to a maid on her hands and knees and saying that Jeanne should emulate her — “a real woman”. Jeanne was unconvinced: “[My grandfather’s] great flaw was his inability to treat his women with dignity. Slowly he would turn on them and devastate them. He made them feel they had no right to exist.” She attributed this characteristic to his Presbyterian background; whenever he had acquired a mistress, he felt guilty about her, and thus began treating her badly. When Beaverbrook died he left Jeanne the income from a $500,000 trust. Jeanne grew up rather “fresh”, in the words of one of her passing admirers, Claus von Bulow. In 1953 it appeared that she might be about to marry William Ropner, a scion of the British shipbuilding clan, but instead she outraged her grandfather by succumbing to the charms of Sir Oswald Mosley, Bt, the former Blackshirt leader and a well-practised seducer.
By this time Jeanne was tall, vivacious, somewhat buxom and possessed of sparkling eyes. Mosley pursued her partly because he saw her as a conduit to Beaverbrook and hoped for favourable publicity for his Union Movement. The old man was not taken in, however, and the couple met clandestinely in a series of London flats. In the end Beaverbrook threatened to cut her off if she stayed with Mosley, and in 1956 he dispatched her to New York to write for the Evening Standard.
In one of her early reports Jeanne wrote a critical review of the CIA, causing Beaverbrook to warn her to be careful what she said about the secret service of the country in which she was living. He further advised her: “Emphasise human interest. Put the best strawberry on top of the basket. Write short sentences. Cut, cut, cut. Always interview people face to face. Never rewrite from another newspaper. Keep widening your circle of acquaintances — even if it means accepting the invitations of bores. Use your feet.”
Jeanne’s vocabulary was not extensive. When she was to visit the oil baron J Paul Getty, Beaverbrook warned he was “rather priapic”. She did not understand, and he explained “ever ready”.
As a friend of Randolph Churchill, Jeanne annoyed him by dining in his rooms at the Hyde Park Hotel in a sumptuous red velvet dress on a night when Sir Winston was expected to die. She spent the night on a sofa and was smuggled out of the hotel the next morning wearing some of Randolph’s clothes. When Randolph wrote volume one of his biography of Sir Winston, she judged it “a solid body of work which no critic or historian can question as an eminent and scholarly contribution to the history of mankind”.
Between 1959 and 1961 Jeanne had an intense affair with Henry Luce II, founder and owner of Time-Life Inc, and the husband of the redoubtable Clare Booth Luce. Jeanne had met him on holiday with Beaverbrook, at a time when she was working as a researcher at Time. He secured her a job at Life magazine, and came close to leaving his wife for her.
In the spring of 1961 Jeanne met Norman Mailer, and soon became pregnant by him. The affair with Luce ended and she returned to the Evening Standard. When, some years later, Gore Vidal asked her what had attracted her to Mailer she replied: “I had never gone to bed with a Jew before.” Mailer, meanwhile, liked to go to bed with women who had slept with famous men. His second wife had been bedded by Jack Kerouac, his fourth by Miles Davis; his biographer, Mary Dearborn, suggested that this was “a homoerotic thing”.
Beaverbrook, who never took to Mailer, advised her to have his child but abstain from marrying him. Instead she did both, marrying the writer in 1962 and giving birth to her daughter, Kate, now an actress, the same year. After a short, tempestuous marriage, which ended with Mailer’s infidelity, she left him, and they were divorced in Mexico in 1963. He rewarded her by depicting her as the bitch in his novel An American Dream. He later described her as “a dear pudding of a lady” and “a remarkable girl, almost as interesting, complex and Machiavellian” as himself.
Following the assassination of Kennedy in 1963 Jeanne was one of a group that included Jones Harris and Tom Bethell that investigated various conspiracy theories. She was experienced at sleuthing, having stitched up her despised stepmother, Margaret Argyll, in 1959. At the height of her father’s divorce proceedings, he (by now the 11th Duke of Argyll) and Jeanne (dressed in trousers and headscarf) entered Margaret’s London house by stealth and proceeded to remove all her four-year diaries from the drawing room.
When they entered her bedroom the Duchess attempted to call the police, but the Duke pinioned her arms while Jeanne snatched the current volume. Soon afterwards the Duchess sued Jeanne for trespass and theft and Jeanne settled out of court.
In 1964 Jeanne met the Beatles at the British Embassy in Washington and put her arm round Paul McCartney. “Which one are you?” she asked. “Roger McClusky the Fifth,” he answered, extricating himself from her grip.
Jeanne’s second husband, whom she married in 1964, was John Sergeant Cram, a gentleman farmer and a great-great-grandson of the railway baron Jay Gould. They lived in New York and at Foot Point Plantation, Bluffton, South Carolina. Jeanne had a second daughter (possibly by a man called Guy Nicholas Lancaster), Cusi Cram, who became an actress and playwright.
It was said that Jeanne received a large advance on her memoirs but blew it on a villa in Greece without ever writing the book. Latterly she lived in a tiny walk-up flat in Greenwich Village, New York, and slept in her last surviving treasure — Napoleon’s campaign bed.
The Campbells arrived in Argyll as part of a royal expedition in c.1220. They settled on Lochaweside where they were placed in charge of the King's lands in the area.
The Chief of Clan Campbell takes his Gaelic title of 'MacCailein Mor' from Colin Mor Campbell - 'Colin the Great' who was killled in 1296, and was succeeded by his son Sir Neil Campbell, companion and brother-in-law of King Robert the Bruce.
From Bruce's time, the family headquarters had been the great castle at Innischonnell on Loch Awe, and remained so until the 1400's when Sir Duncan Campbell (great grandson of Sir Colin) moved to to Inveraray. He was created Lord Campbell and thereafter a steady string of titles were awarded to the family. His grandson was created Earl of Argyll in 1457.
Archibald, the 2nd Earl was killed at Flodden in 1513 and was the first of the family to be granted the appointment of Master of the Royal Household in Scotland, a priveledge still held by the Duke today. The 5th Duke was another military hero commanding a force of his own people which exceeded in strength the existing armies of France and England; he was power of international importance and only fell in defeat when in command of the army of Mary Queen of Scots in 1568.
The 8th Earl was thrown in the tower and subsequently executed for taking the side of Oliver Cromwell over Charles 2nd and the fortunes of the House of Argyll were down until the Glorious Revolution in 1688.
The 10th Earl was granted the Dukedom in 1701 due to the regiment he raised for the crown, known as the Earl of Argyle's Regiment of Foot. This was the unit tasked with carrying out the notorious Massacre of Glencoe, an episode inaccurately classed as an act of clan vengeance by the Campbells.
The 2nd Duke was a famous soldier who commanded the Government Army at the Battle of Sheriffmuir which ended the Jacobite Rebellion of 1715 and was one of the first two officers in the British Army to be promoted to the rank of Field Marshall. He was created the Duke of Greenwich but the title lapsed without a direct male heir. His successor was his brother who became the 3rd Duke of Argyll, another distinguished soldier who subsequently became Lord Justice General of Scotland.
The 4th and 5th Dukes were both renown soldiers and the far seeing efforts of the 5th Duke were almost destroyed by the 6th, a charming but dissolute playboy who left a string of debts and illegitimate children. His brother, the 7th Duke fought hard to avoid disaster and the family fortunes were, to an extent, restored by the time of the 8th Duke, who was a successful politician, a Cabinet Minister and Renaissance Man.
It was the 8th Duke's son and heir who married Queen Victoria's daughter, Princess Louise, thereafter serving as Govener General of Canada before succeeding as 9th Duke. They had no children and the title went to a nephew, Niall, 10th Duke, a scholarly recluse. He never married and the title passed to his cousin.
The 11th Duke, Ian, was a gallant officer taken prisoner with most of the Highland Division in France in 1940. He was married 4 times, with the infamous Margaret Argyll as his third wife.
His son, also Ian, succeeded him and became the 12th Duke, the present Duke's late father. The 12th Duke laboured hard to restore the Argyll name and became the Lord Lieutenant of Argyll and Bute as well as meticulously carrying out the traditional duties of the Clan Chief of the Campbells. His passion for the family and clan meant that he worked tirelessly following the terrible castle fire in the early 1970's to restore the castle to the high standard it is in today.
The present Duke, Torquhil Ian, inherited the title on the death of his father in 2001. He combines his duties as Duke, Clan Chief and Landowner with a consultant role with Pernod Ricard, promoting Scotch Whiskies including Chivas Regal and Glenlivet. He captained Scotland to victory in 2004 and 2005 in the World Elephant Polo Championships.
Ian Campbell, 11th Duke of Argyll
Ian Douglas Campbell, 11th and 4th Duke of Argyll (June 18, 1903 – April 7, 1973) was a Scottish Peer. He was the 11th Duke of Argyll, but is known now as the man married to infamous nymphomaniac Margaret Whigham made famous by his 1963 divorce from her.
Ian Douglas Campbell was the son of Douglas Walter Campbell and his wife Aimee Marie Suzanne Lawrence. He was a great-grandson of George Douglas Campbell, 8th Duke of Argyll.
He was married four times. His first marriage was to the Hon. Janet Gladys Aitken, daughter of Lord Beaverbrook, on December 12, 1927. They had a daughter, Lady Jeanne Louise Campbell, who later married famed author Norman Mailer. Ian and Janet divorced in 1934.
His second marriage was to Louise Hollingsworth Morris Clews on November 23, 1935. This marriage produced an heir, Ian Campbell, 12th Duke of Argyll, and a second son Lord Colin Ivar Campbell. This marriage also ended in divorce in 1951.
The third marriage was to Margaret Whigham, mother of the 10th Duchess of Rutland Frances Helen Sweeny from her previous marriage to Charles Sweeny. They were married on March 22, 1951. Margaret was a glittering society figure with a voracious sexual appetite. Even while married to the Duke, she carried on affairs with infamous men from Douglas Fairbanks Jr. to Duncan Sandys, the minister of defense. The marriage was childless and they divorced in 1963, after the Duke photographed one of her sexual exploits. In the infamous divorce proceeding, the Duke produced Polaroid photographs of the Duchess wearing only her signature triple-string of pearls while fellating an unidentified man. This naturally caused quite a stir in society, and the divorce was granted.
His fourth and final marriage was to Mathilda Costa Mortimer on June 15, 1963. From this marriage he had a daughter, Lady Elspeth Campbell, who died a few days after birth. They remained married until the Duke's death on April 7, 1973.
Ian inherited the dukedom from a distant cousin, Niall Diarmid Campbell, 10th Duke of Argyll, in 1949. He was succeeded by his son Ian.
Ian Campbell, 12th Duke of Argyll
Ian Campbell, 12th and 5th Duke of Argyll FRSA (August 28, 1937 – April 21, 2001) was a Scottish Peer and Chief of Clan Campbell. He was also the 5th Duke of Argyll in the Peerage of the United Kingdom.
Sir Ian Campbell was the son of Ian Douglas Campbell, 11th Duke of Argyll and his second wife, Louise Hollingsworth Morris Clews. He was educated at Institut Le Rosey in Switzerland and Glenalmond College in Scotland before going on to McGill University in Canada.
In 1953, he was made a Fellow in the Royal Society for the Encouragement of Arts, Manufactures and Commerce. He served with the Argyll and Sutherland Highlanders, earning the rank of Captain.
On the death of his father in 1973, Sir Ian Campbell became a member of the Board of Directors of three distilleries and in 1977 became Chairman of Beinn Bhuidhe Holdings Ltd. in 1977. He was invested as a Knight in the Order of St. John in 1975.
Married in 1964 to Iona Mary Colquhoun, the couple had a son Torquhil Ian Campbell and a daughter Louisa Iona Campbell. They lived at Inveraray Castle in Argyllshire.
Torquhil Campbell, 13th Duke of Argyll
Torquhil Ian Campbell, 13th and 6th Duke of Argyll (born 29 May 1968) is a Scottish peer; he is also the 6th Duke of Argyll in the Peerage of the United Kingdom, and, at the age of 40, the youngest duke in the kingdom having succeeded aged 33 when his father died suddenly after an operation.
He is the elder child and only son of Ian Campbell, 12th Duke of Argyll and Iona Mary Colquhoun, daughter of Captain Ivar Iain Colquhoun, 8th Baronet of Luss, and was educated at Cargilfield, Glenalmond, the Royal Agricultural College and McGill University. He was a Page of Honour to HM The Queen from 1981–1983, and became a sales agent, salesman, and company manager. He is the Master of the Household (ranking 25th in the Scottish order of precedence), Admiral of the Western Coasts and Isles, and the chief of Clan Campbell.
The duke is the captain of Scotland's national elephant polo team which won the 2004 and 2005 World Elephant Polo Association world championships. He also works for Pernod Ricard, promoting Scotch whiskies such as Glenlivet and Chivas Regal.
On June 8, 2002, he married Eleanor Cadbury, a descendant of the Cadbury chocolate dynasty. They have two sons, Archibald Frederick Campbell, Marquess of Lorne and Lord Rory James Campbell (born 2006).
He is also the nephew of Norman Mailer's third wife journalist Jeanne Campbell and the first cousin of their daughter actress Kate Mailer.
The plaintiff, Margaret, Duchess of Argyll, is the last of the three wives whose marriage to the Duke has ended in divorce. The first defendant is the Duke of Argyll; the second defendant, Mr Stuart Campbell, is editor of the Sunday newspaper ‘The People’; and the third defendants, Odhams Press Ltd are proprietors, printers and publishers of that paper. The plaintiff asks for injunctions to restrain the defendants from publishing, in articles by the Duke in the newspaper, ‘The People’, statements about the plaintiff which are said to be…in breach of marital confidence …
… I will first state briefly the facts which form the background of this application. In March, 1951, the Duke married the plaintiff and in March, 1963, there was a decree of divorce by the Court of Session in Scotland; so that the plaintiff and the Duke had been married twelve years. The Duke had been married twice before. The plaintiff had been married once before. Both had issue by previous marriages. The Duke has now married his fourth wife, but the plaintiff has not remarried.
In September, 1959, the Duke presented a petition for divorce from the plaintiff in the Court of Session in Scotland on the grounds of her adultery.
… In February, 1963, the divorce proceedings were heard by the Court of Session and later a decree was made of dissolution of the marriage between the Duke and the plaintiff on the ground of the plaintiff’s adulter y…
Th[is] claim[.] raise [an] important question[.] of law of general interest: whether secret confidences made between husband and wife during their marriage will be protected by the court…[T]he…question raises difficult and profound questions of the policy of the law, its function in our society and how far it is still capable, if need be, of development to carry out that function. The answer concerns every home in the country.
This … question is raised by the … injunction for which the plaintiff asks. It is an injunction to restrain the defendants from publishing … ‘Secrets of the plaintiff relating to her private life, personal affairs or private conduct, communicated to the first defendant in confidence during the subsistence of his marriage to the plaintiff and not hitherto made public property.’
… The plaintiff … describes a relationship of mutual confidence and shared secrets with her husband over a number of years, which is happily normal amongst married people. She says:
‘During a number of years before our marriage began to deteriorate, my ex-husband and I had a very close and intimate relationship in which we freely discussed with each other many things of an entirely private nature concerning our attitudes, our feelings, our hopes, aspirations and foibles, our past lives and previous marriages, our business and private affairs, and many other things which one would never have discussed with anyone else. Apart from explicit discussion, we naturally discovered many things about each other which, but for our close relationship, we would not have done. These things were talked about and done on the implicit understanding that they were our secrets and that we allowed the other one to discover them only because of the complete trust and mutual loyalty which obtained between us and created an absolute obligation of confidence.’
I turn now to the law. First I will consider how far the court will restrain breaches of confidence independently of confidences between husband and wife. It is clear that the court may restrain breach of confidence arising out of contract or any right to property. The question whether the court’s protection is limited to such cases was considered in two authorities to which I shall refer. The first is Prince Albert v Strange. In that case Queen Victoria and Prince Albert had made drawings and etchings of their children and other subjects of interest to the family. Impressions of them had come into the hands of the defendant’s who proposed to exhibit and publish copies of them and make and publish a catalogue of them. Prince Albert successfully applied to the court for an injunction to restrain them from doing so …
The second case to which I would refer is Pollard v Photographic Co, where a photographer, who had taken a negative likeness of a lady in order to supply her with copies for money, was restrained from selling or exhibiting copies, both on the ground that there was an implied contract not to use the negative for such purposes, and also on the ground that such sale or exhibition was a breach of confidence.
Now I turn to the confidences between husband and wife during marriage. Marriage is, of course, far more than mere legal contract and legal relationship, and even legal status; but it includes legal contract and relationship. If, for the court’s protection of confidence and, contrary to my view, the confidence must arise out of a contractual or property relationship, marriage does not lack its contract. It is basically a contract to be and, according to our Christian conception of marriage, to live as man and wife. It has been said that the legal consideration of marriage - that is the promise to become and to remain man and wife - is the highest legal consideration which there is. And there could hardly be anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife.
The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed. To express it is superfluous; it is clear to the least intelligent. So it seems to me that confidences between husband and wife during marriage are not excluded from the court’s protection … Nevertheless, are there other considerations which should deny them that protection?
The defendants … submitted that, even if the plaintiff would otherwise be entitled to this injunction which she claims for breach of confidence, nevertheless she ought not to be granted this relief, first, on the ground that…by her attitude to the sanctity of marriage as set out in Lord Wheatley’s judgment in the divorce proceedings.
Lord Wheatley said that by 1960 the plaintiff’s attitude to the sanctity of marriage was - and I quote - ‘what the moderns might call sophisticated but what in plain language can only be described as wholly immoral.’
The breaches of confidence of which the plaintiff now complains appear to be of confidences in the early years of the marriage, well before the period to which Lord Wheatley limited his strong condemnation. When these confidences were made the relationship of the plaintiff and the Duke was apparently…the normal confidence and trust between husband and wife.
Should, then, the plaintiff be denied the injunction which she would otherwise get because…after the confidences of whose breach she complains, adopted an immoral attitude towards her marriage?
A person coming to equity for relief - and this is equitable relief which the plaintiff seeks - must come with clean hands; but the cleanliness required is to be judged in relation to the relief that is sought.
… [W]ith regard to the plaintiff’s immorality, it was, of course, the basis for the divorce and the termination of the marriage. Such behaviour makes the confidential relationship of marriage impossible. However, what it does is to undermine confidence for the future and not betray the confidences of the past …
[T]he responsibility for the breakdown of a marriage, involving as it does the most delicate and intimate relationship, cannot always be exclusively attributed to the spouse against whom the divorce decree is granted …
… I have concluded it is the policy of the law … to preserve the close confidence and mutual trust between husband and wife [and] that policy … would indeed be impaired if subsequent adultery by one spouse, resulting in divorce, were to release the other spouse from obligation to preserve their earlier confidences…The plaintiff’s adultery, repugnant though it be, should not in my view licence the husband to broadcast unchecked the most intimate confidences of earlier and happier days.
The plaintiff, Margaret, Duchess of Argyll, is the last of the three wives whose marriage to the Duke has ended in divorce. The first defendant is the Duke of Argyll; the second defendant, Mr Stuart Campbell, is editor of the Sunday newspaper ‘The People’; and the third defendants, Odhams Press Ltd are proprietors, printers and publishers of that paper. The plaintiff asks for injunctions to restrain the defendants from publishing, in articles by the Duke in the newspaper, ‘The People’, statements about the plaintiff which are said to be (i) in breach of marital confidence; (ii) in respect of certain actions and proceedings in court; (iii) in respect of evidence given at the hearing of the Duke’s divorce petition in the Scottish Court of Session; and (iv) statements defamatory of the plaintiff. The claim for interlocutory relief on this last ground has not been proceeded with at this stage, because the defendants rely on the plea of justification and, where that plea is relied on, then an interlocutory injunction is not granted unless it is clear that the plea must fail. In this case, it is, therefore, recognised that the issue on defamation is not appropriate for interlocutory decision; but subject to that, of course, the plaintiff reserves all her objections and rights.
Two articles by the Duke appeared before this motion came on for hearing and no question about them arises before me. Four more were threatened to be published, namely articles referred to as Nos 3–6 inclusive when the motion first came before me on 27 November. There was no objection to article No 5, and so on that day an undertaking was given not to publish any article except No 5; and this motion is now concerned with articles Nos 3, 4 and 6. Last Friday I gave my decision and granted injunctions subject to reconsideration of their precise form after this judgment. It is the reasons for that decision that this judgment now gives.
I will first state briefly the facts which form the background of this application. In March, 1951, the Duke married the plaintiff and in March, 1963, there was a decree of divorce by the Court of Session in Scotland; so that the plaintiff and the Duke had been married twelve years. The Duke had been married twice before. The plaintiff had been married once before. Both had issue by previous marriages. The Duke has now married his fourth wife, but the plaintiff has not remarried. In May, 1959, the Duke’s second wife who had remarried and become Mrs Timpson and her son by the Duke, the Marquess of Lorne, commenced an action against the plaintiff in the Queen’s Bench Division claiming an injunction and damages. The plaintiff did not defend that action and by consent an injunction against her was granted in chambers. The plaintiff says that she consented at the express request of the Duke, and in reliance on the promise by him, that the subject-matter of that action would never be mentioned again; and that is one of the grounds on which she relies for one of the injunctions which she claims. That action has been referred to, and I shall continue to refer to it, as the Timpson action. In September, 1959, the Duke presented a petition for divorce from the plaintiff in the Court of Session in Scotland on the grounds of her adultery. Those proceedings are referred to as the divorce proceedings. In November, 1959, Mrs Timpson started committal proceedings against the plaintiff for alleged breach of the injunction in the Timpson action. Those proceedings are referred to as the committal proceedings. On 21 December 1959, the committal proceedings were heard by Paull J in chambers and no committal order was made. He gave directions in open court against publication about what happened in chambers. The secrecy of proceedings in chambers in the Timpson action, reinforced by Paull J’s statement, is relied on as a ground for one of the injunctions claimed. In October, 1960, the plaintiff filed a cross-petition in the divorce proceedings in Scotland and that is referred to as the cross-petition. In June, 1962, the plaintiff’s step-mother, Mrs Whigham, commenced an action against the plaintiff and another in the Queen’s Bench Division claiming damages for conspiracy, malicious prosecution, libel and injurious falsehood, based on allegations in the plaintiff’s cross-petition for divorce. Those proceedings are referred to as the Whigham action. On 29 May 1962, the cross-petition was withdrawn and no evidence was submitted in support of it. It is claimed by the plaintiff that publication of the charges made in that cross-petition is made unlawful by statute and that the plaintiff is entitled to an injunction which she claims to prevent their publication. On 15 October 1964, the Whigham action was settled by compromise on terms scheduled to the order. Counsel for all parties stated in open court that the claim for conspiracy, malicious prosecution and injurious falsehood was to be dismissed, but the plaintiff was to pay Mrs Whigham £25,000 in respect of the libels complained of and to pay her costs. It was stated by counsel in open court that all parties undertook that none of them would make a statement or comment on matters in dispute on that action to anyone, and the scheduled terms contained an undertaking to the court to the same effect. The plaintiff claims that she is entitled in the circumstances to have that undertaking enforced against the Duke by injunction. In February, 1963, the divorce proceedings were heard by the Court of Session and later a decree was made of dissolution of the marriage between the Duke and the plaintiff on the ground of the plaintiff’s adultery. Those very briefly are the facts and an indication of the grounds of the plaintiff’s claims.
These claims raise two important questions of law of general interest:
(i) whether secret confidences made between husband and wife during their marriage will be protected by the court, and
(ii) whether a party to divorce proceedings is entitled to apply to the court to enforce the Act of Parliament which prohibits publication with regard to those proceedings. The second question turns entirely on the interpretation of the Act of Parliament, but the first question raises difficult and profound questions of the policy of the law, its function in our society and how far it is still capable, if need be, of development to carry out that function. The answer concerns every home in the country.
This first question is raised by the first injunction for which the plaintiff asks. It is an injunction to restrain the defendants from publishing - and I quote the words in the notice of motion -
‘Secrets of the plaintiff relating to her private life, personal affairs or private conduct, communicated to the first defendant in confidence during the subsistence of his marriage to the plaintiff and not hitherto made public property.’
The first one-third of the third article falls within that description. The plaintiff in para 3 of her affidavit filed on 16 November describes a relationship of mutual confidence and shared secrets with her husband over a number of years, which is happily normal amongst married people. She says:
‘During a number of years before our marriage began to deteriorate, my ex-husband and I had a very close and intimate relationship in which we freely discussed with each other many things of an entirely private nature concerning our attitudes, our feelings, our hopes, aspirations and foibles, our past lives and previous marriages, our business and private affairs, and many other things which one would never have discussed with anyone else. Apart from explicit discussion, we naturally discovered many things about each other which, but for our close relationship, we would not have done. These things were talked about and done on the implicit understanding that they were our secrets and that we allowed the other one to discover them only because of the complete trust and mutual loyalty which obtained between us and created an absolute obligation of confidence.’
I turn now to the law. First I will consider how far the court will restrain breaches of confidence independently of confidences between husband and wife. It is clear that the court may restrain breach of confidence arising out of contract or any right to property. The question whether the court’s protection is limited to such cases was considered in two authorities to which I shall refer. The first is Prince Albert v Strange. In that case Queen Victoria and Prince Albert had made drawings and etchings of their children and other subjects of interest to the family. Impressions of them had come into the hands of the defendant’s who proposed to exhibit and publish copies of them and make and publish a catalogue of them. Prince Albert successfully applied to the court for an injunction to restrain them from doing so. The headnote, so far as is material, reads:
‘The maker and owner of etchings which have never been exhibited or published, and of which no impressions have been made except for his private use, but impressions whereof have, by improper and surreptitious means, come into the possession of other parties, is entitled to an injunction, not only to restrain those parties from exhibiting those impressions, and from publishing copies of them, but also to restrain them from publishing a catalogue compiled by themselves, in which an enumeration and descriptive account of those etchings is contained, and that, although there is no violation of any contract, either express or implied, between the owner and the compilers of the catalogue.’
Lord Cottenham LC dealt first with the plaintiff’s property in the etchings. He said ((1849), 1 Mac & G at p 44; 1 H & Tw at p 23):
‘Upon the first question, therefore, that of property, I am clearly of opinion that the exclusive right and interest of the plaintiff in the compositions and work in question being established, and there being no right or interest whatever in the defendant, the plaintiff is entitled to the injunction of this court to protect him against the invasion of such right and interest by the defendant, which the publication of any catalogue would undoubtedly be; but this case by no means depends solely on the question of property; for a breach of trust, confidence, or contract, would of itself entitle the plaintiff to the injunction. The plaintiff’s affidavit states the private character of the work or composition, and negatives any licence or authority for publication, the gifts of some of the etchings to private friends certainly not implying any such licence or authority, and states distinctly the belief of the plaintiff, that the catalogue and the descriptive and other remarks therein contained, could not have been compiled or made, except by means of the possession of the several impressions of the etchings surreptitiously and improperly obtained. To this case no answer is made, the defendant saying only that he did not, at the time, believe the etchings to have been improperly obtained, but not suggesting any mode by which they could have been properly obtained, so as to entitle the possessor to use them for publication.’
Then Lord Cottenham LC in referring to another case, said ((1849), 1 Mac. & G at pp 45, 46; 1 H & Tw at p 25):
‘In that, as in this case, the matter or thing of which the party had obtained knowledge, being the exclusive property of the owner, he has a right to the interposition of this court to prevent any use being made of it, that is to say, he is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his. This was the opinion of LORD ELDON, expressed in the case of Wyatt v. Wilson, in 1820, respecting an engraving of George III, during his illness in which, according to a note with which I have been furnished by Mr. Cooper, he said, ‘If one of the late King’s physicians had kept a diary of what he heard and saw, this court would not in the King’s lifetime, have permitted him to print or publish it’.’
The diary there was the physician’s and the only thing which could be described in any sense as the property of the King was the information it contained and to which the physician was given the access. If such information can be regarded as within the protection afforded to property then similar confidential information communicated by a wife to her husband could also be so regarded.
Lord Cottenham LC continued ((1849), 1 Mac & G at pp 46, 47; 1 H & Tw at p 25):
‘Some minor points were raised at the bar, to which I will shortly advert. It was contended that there ought not to be any injunction until the plaintiff had established his title at law; and cases were referred to, in which it was supposed I had laid down rules establishing such a proposition. The cases referred to are cases in which the equitable jurisdiction arose from some legal title, and was exercised solely for the purpose of protecting the party in the enjoyment of such legal title, and they have no application to cases in which this court exercises an original and independent jurisdiction, not for the protection of a merely legal right, but to prevent what this court considers and treats as a wrong, whether arising from violation of unquestionable right, or from a breach of contract or confidence, as in the present case, and in the case of Mr. Abernethy’s lectures [viz, Abernethy v Hutchison (1825), 1 H & Tw 28. Mr Abernethy was a distinguished surgeon and the lecturer at the theatre of St Bartholomew’s Hospital] but even in the cases so referred to, I have always held, that it was for the discretion of the court to consider, whether the defendant might not sustain greater injury from an improper injunction than the plaintiff from the delay in granting a proper one. In the present case, where the privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this court in these cases does not depend upon any legal right, and to be effectual, it must be immediate.’
The second case to which I would refer is Pollard v Photographic Co, where a photographer, who had taken a negative likeness of a lady in order to supply her with copies for money, was restrained from selling or exhibiting copies, both on the ground that there was an implied contract not to use the negative for such purposes, and also on the ground that such sale or exhibition was a breach of confidence. North J said ((1888), 40 Ch D at p 350):
‘Again, the recent case of Tuck and Sons v. Priester is very much in point. The plaintiffs were the unregistered owners of the copyright in a picture, and employed the defendant to make a certain number of copies for them. He did so, and he also made a number of other copies for himself, and offered them for sale in England at a lower price. The plaintiffs subsequently registered their copyright and then brought an action against the defendant for an injunction and for penalties and damages. The lords justices differed as to the application of the Copyright Acts to the case, but held unanimously that [and this is the important part] independently of those Acts, the plaintiffs were entitled to an injunction and damages for breach of contract.’
North J quoted from Lindley LJ and said ((1888), 40 Ch D at p 351):
‘Then LINDLEY, L.J., says ((1887), 19 QBD at p 638): ‘I will deal first with the injunction, which stands, or may stand, on a totally different footing from either the penalties or the damages. It appears to me that the relation between the plaintiffs and the defendant was such that, whether the plaintiffs had any copyright or not, the defendant has done that which renders him liable to an injunction. He was employed by the plaintiffs to make a certain number of copies of the picture, and that employment carried with it the necessary implication that the defendant was not to make more copies for himself, or to sell the additional copies in this country in competition with his employer. Such conduct on his part is a gross breach of contract and a gross breach of faith, and in my judgment, clearly entitles the plaintiffs to an injunction, whether they have a copyright in the picture or not’. That case is the more noticeable, as the contract was in writing; and yet it was held to be an implied condition that the defendant should not make any copies for himself. The phrase ‘a gross breach of faith’ used by LINDLEY, L.J., in that case applies with equal force to the present, when a lady’s feelings are shocked by finding that the photographer she has employed to take her likeness for her own use is publicly exhibiting and selling copies thereof. It may be said that in the present case the property in the glass negative is in the defendant, and that he is only using his own property for a lawful purpose. But it is not a lawful purpose to employ it either in breach of faith, or in breach of contract. [There we have the contrast which is important to this case.] Again in Murray v. Heath, the plates were the property of the defendant, for they had not been delivered to or accepted by the plaintiff. So in the case of Duke of Queensberry v. Shebbeare the defendant was restrained from publishing a work of the Earl of Clarendon, although a person had been expressly allowed by the owner to make and retain as his own a copy of the manuscript, which copy he had sold to the defendant. There too an agreement or condition was implied that the manuscript should not be published. Again, it is well-known that a student may not publish a lecture to which he has been admitted, even though by his own skill he has taken a copy of it in shorthand; and the receiver of a letter may not publish it without the writer’s consent, though the property in the paper and writing is in him; and many similar instances might be given.’
These cases, in my view, indicate (i) that a contract or obligation of confidence need not be expressed but can be implied (which, I confess somewhat to my surprise, I understood to be disputed at one stage at any rate of the argument); (ii) that a breach of confidence or trust or faith can arise independently of any right of property or contract other, of course, than any contract which the imparting of the confidence in the relevant circumstances may itself create;(iii) that the court in the exercise of its equitable jurisdiction will restrain a breach of confidence independently of any right at law.
Now I turn to the confidences between husband and wife during marriage. Marriage is, of course, far more than mere legal contract and legal relationship, and even legal status; but it includes legal contract and relationship. If, for the court’s protection of confidence and, contrary to my view, the confidence must arise out of a contractual or property relationship, marriage does not lack its contract. It is basically a contract to be and, according to our Christian conception of marriage, to live as man and wife. It has been said that the legal consideration of marriage - that is the promise to become and to remain man and wife - is the highest legal consideration which there is. And there could hardly be anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed. To express it is superfluous; it is clear to the least intelligent. So it seems to me that confidences between husband and wife during marriage are not excluded from the court’s protection by the criteria appearing in the cases to which I have referred. Nevertheless, are there other considerations which should deny them that protection?
In Rumping v Director of Public Prosecutions, the House of Lords considered the question whether an intercepted communication between husband and wife was admissible against the husband in evidence for the prosecution, and it was decided that it was so admissible. In that case the appellant, who was the mate of a Dutch ship, was convicted of non-capital murder committed at Menai Bridge. Part of the evidence for the prosecution admitted at his trial consisted of a letter that he had written to his wife in Holland which amounted to a confession. The appellant had written the letter on the day of the killing, on board his ship after it had left Menai Bridge for Liverpool; he had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrived at a port outside England. The appellant was arrested when the ship reached Liverpool, and after his arrest the member of the crew handed the envelope to the captain of the ship who handed it over to the police. The member of the crew, the captain and the translator of the letter gave evidence at the trial but the wife was not called as a witness. On appeal against conviction on the ground that the letter was wrongly admitted in evidence, it was held that the appellant was rightly convicted because the letter was admissible in evidence.
The House of Lords in that case directed their observations to the admissibility of such evidence in legal proceedings, and not to the different question whether, otherwise than for the purpose of such evidence, communications were subject to the protection of the law. This, I think, appears from the speech of Lord Morris Of Borth-Y-Gest with which the majority of the lords agreed. He said:
‘It was contended that it was and is a rule of the common law applying both in civil and in criminal cases that all communications made between husband and wife during marriage are inadmissible in evidence. It was submitted that the rule applies with equal force to a communication intended by one spouse for the other even though never received.’
Then he said:
‘These contentions involve the further contention, which now calls for inquiry, that at common law there were two separate rules: that apart from what I may call the general common law rule that one spouse was incompetent to give evidence concerning the other there was a separate and distinct rule that no person at all could give any evidence of any communication between spouses. My lords, though authority is not lacking which pronounces the general rule that at common law husbands and wives were not allowed to give evidence for or against each other, I can find no authority in support of the suggested separate and distinct rule.’
These remarks are clearly limited to admissibility of the communications in evidence and not to their protection where no question of admitting in evidence arises.
Lord Morris Of Borth-Y-Gest indicates that, if there were a rule that communications between husband and wife could not be given in evidence in legal proceedings, it would be necessary to weigh this against another and competing requirement of public policy, that in legal proceedings the truth should be ascertained. Then Lord Morris Of Borth-Y-Gest said:
‘Had occasion arisen in the past for debate whether on grounds of public policy some such rule as that contended for was desirable it seems to me that there would have been competing and diverging aspects of public policy to be weighed. Respect is due to the confidences of married life: but so is respect due to the ascertainment of the truth. Marital accord is to be preserved: but so is public security.’
All the lords of appeal recognised the importance in the eyes of the law of preserving confidential communications between husband and wife inviolate. They all agreed that this was a reason for the old rule that husband and wife were not competent to give evidence against each other. For the need to preserve confidential communications between husband and wife to be a reason for a rule of the law necessarily establishes to my mind that the preservation of those communications inviolate is an objective of public policy. Viscount Radcliff went further, in this respect differing from the others and, therefore, dissenting as to this conclusion. He considered that it was not only a reason for the rule but that it was also a principle of the law that such communications should not be admissible in evidence in legal proceedings.
I come now to the passages in the speeches which bear on this question of public policy. Lord Reid said:
‘The case for the appellant is that there is a rule or principle of the common law which protects communications between husband and wife which are not intended to be disclosed to others. It was argued that, if a third person overhears such a conversation or intercepts or obtains possession of a letter or other writing from one spouse to the other, the law will not require or permit him to disclose that communication in evidence in any case, civil or criminal.’
Then he said:
‘On the other hand there are many clear and forcible expressions of opinion that it is contrary to public policy to require disclosure of confidential communications between husband and wife: it is better that injustice should sometimes be done by preventing such disclosure than that the fear of possible future disclosure should be a general embarrassment to marital relations. It is true that most if not all of these opinions were expressed with regard to direct disclosure by one of the spouses. But it would be almost as embarrassing to marital relations if spouses had to fear possible future disclosure by a witness who was an eavesdropper or who had intercepted or stolen a letter from one spouse to the other. Any legal principle based on such considerations would demand that communications between husband and wife should be equally protected both in civil and criminal proceedings against disclosure by one of the spouses or by some third person. So, if I could be satisfied that these considerations had been generally accepted as a basis of a doctrine of public policy, I would not be deterred from applying them to this case by the mere fact that no rule regarding disclosure of such communications by third persons had ever been formulated. The rarity of cases involving such disclosure by third persons would sufficiently explain the absence of any such rule.’
In this passage, as appears from its opening words, the disclosure referred to is disclosure which it is possible ‘to require’, ie, disclosure in legal proceedings. Then Lord Reid expresses his conclusion:
‘I can state my conclusion in this way. Before 1853 there was no established rule or principle which would have enabled this appeal to succeed. There were, however, statements with regard to public policy which would have carried the appellant a very long way. But public policy is essentially a matter for Parliament, and the terms of s. 3 of the [Evidence Amendment Act, 1853] show that the Parliament of that time did not regard it as contrary to public policy to permit disclosure of communications between husband and wife.’
Again, I read ‘disclosure’ as meaning disclosure in evidence in legal proceedings and ‘public policy’ as considered in relation to those proceedings. Lord Reid concluded:
‘I cannot find in anything that has happened since that date sufficient ground to entitle the court now to take a different view as to public policy, and I can find no other basis on which this appeal could succeed. I therefore move that this appeal should be dismissed.’
Lord Radcliffe said:
‘If evidence had been tendered in this form it would have raised explicitly the issue that lies behind the present appeal, in which we have to inquire whether the principle is confined merely to securing that the spouses themselves do not become the agents of disclosure by appearing as witnesses or goes further and for reasons of public policy protects the marital confidences as such, in whatever form it is sought to expose them as material of evidence.’
Lord Radcliffe referred ( 3 All ER at p 262;  AC at pp 838, 839) to the case of Monroe v Twisleton ((1802), Peake, Add Cas 219 at p 220) and the often quoted statement of Lord Alvanley CJ:
‘In Monroe v. Twisleton ((1802), Peake, Add Cas 219 at p 220) LORD ALVANLEY, C.J., said of a divorced wife who was called to prove a contract made during the marriage: ‘To prove any fact arising after the divorce this lady is a competent witness, but not to prove a contract or anything else which happened during the coverture. She was at that time bound to secrecy; what she did might be in consequence of the trust and confidence reposed in her by her husband; and miserable indeed would the condition of a husband be, if, when a woman is divorced from him, perhaps for her own misconduct, all the occurrences of his life, entrusted to her while the most perfect and unbounded confidence existed between them, should be divulged in a court of justice. If she might be a witness in a civil proceeding, she might equally be so in a criminal prosecution; and it never shall be endured that the confidence which the law has created while the parties remained in the most intimate of all relations, shall be broken whenever, by the misconduct of one party (for misconduct alone can have that effect), the relation has been dissolved’.’
Then Lord Radcliffe continued ( 3 All ER at pp 262, 263;  AC at p 839):
‘I must pause on this decision. It does not stand alone. It has been ‘approved again and again’ - (see R. v. Algar ( 2 All ER 1381 at p 1383;  1 QB 279 at p 286) per LORD GODDARD, C.J.). Although the witness was rejected on the ground of incompetency, the reason of rejection could not have been a concern to avoid strain or embarrassment in any existing marital relation, for that relation had been determined by divorce. The principle of rejection could only have been that there was a sanctity in marital confidences themselves which made them an inadmissible subject of evidence in legal proceedings. To say that it was a decision on competence does not therefore, I think, diminish its importance for our purpose. The witness was treated as incompetent solely because of the proposed content of her evidence: it was the content then that was the basis of exclusion not the witness. This decision is the first of several in which the principle of preserving the confidence of the conjugal relation was applied in circumstances in which there was no existing conjugal relationship to disturb. I infer from this that the court’s concern was that no marriage relation, while it subsisted, should be infected by the fear or suspicion that things said only by reason of the special confidence of that relation might later become the material of legal evidence affecting the speaker. Perhaps that is no more than another way of saying that the court appreciated the real impropriety of such a disclosure.’
Lord Radcliffe went on ( 3 All ER at p 263;  AC at pp 839, 840):
‘Monroe v. Twisleton was decided in 1802. In 1805 in Aveson v. Lord Kinnaird ((1805), 6 East 188, at p 193) LORD ELLENBOROUGH, C.J., referred to that case and said that LORD ALVANLEY had mentioned a ‘general doctrine, that trust and confidence between man and wife shall not be betrayed, and as such it is sound doctrine’. In 1824, in Doker v. Hasler BEST, C.J., also referred to Monroe v. Twisleton and said of it: ‘I remember that in that case, in which I was counsel, LORD ALVANLEY refused to allow a woman, after a divorce, to speak to conversations which had passed between herself and her husband, during the existence of the marriage. I am satisfied with the propriety of that decision, and I think that the happiness of the marriage state requires that the confidence between man and wife should be kept for ever inviolable.’ There a widow was to be called as witness and it was therefore another case in which nothing could require protection except the content of the confidential communications made during the former marriage. O’Connor v. Marjoribanks was to the same effect. A widow’s evidence was again in question and the court (TINDAL, C.J., COLTMAN and MAULE, JJ.) after full consideration, unanimously approved LORD ALVANLEY’S decision in Monroe v. Twisleton as good law.’
Later Lord Radcliffe said:
‘So much then for the ‘legal policy of marriage’ in relation to the law of evidence. Its aim was, I think, the general one ‘to ensure conjugal confidence’ and it rested on a much wider principle than that of excluding witnesses on the ground of interest in the subject-matter of a suit.’
It does not appear to me to detract from the obvious inherent strength of these observations, if I may respectfully so refer to them, that the majority concluded that nevertheless Parliament, by the Evidence Acts, showed that the disclosure of communications between husband and wife were to be permitted in legal proceedings. In particular - and this is what matters for our purposes - Lord Radcliffe’s observations, so it seems to me, stand, except in so far as they must be applied subject to the decision of the majority of the House, that the policy of the Evidence Acts had to prevail. These Acts and their policy were directed, however, to the giving of evidence in legal proceedings and not, as in the present case, to communications between spouses, independently of their admissibility in evidence in legal proceedings. Lord Radcliffe’s observations, therefore, appear to me to apply without reservation to such a case as this.
Lord Morris Of Borth-Y-Gest ( 3 All ER at p 271;  AC at pp 851, 852) summarised his review of the authorities, directed, as it was, to the exclusion of communications between spouses in evidence in legal proceedings. He said:
‘The cases to which I have so far referred furnish ample authority for the proposition that at common law in civil cases a spouse would not be admitted as a witness either for or against the other spouse and good reasons are assigned as the basis of this rule. But I discern no authority for the different proposition that no evidence may be given by anyone in regard to a communication made between a husband and a wife.’
Later he said:
‘My lords, a survey of the authorities and of the statutory provisions leads me to the view that there has never been a rule at common law that no evidence may be given by anyone as to communications made between husband and wife during marriage. There has however been a recognition of the feeling or public sentiment that in ordinary circumstances it is seemly that the confidences of married life should be respected and protected. That recognition found expression as one of the various reasons which were assigned for the old general rule as to the incompetence of husbands and wives as witnesses. That general rule may have made it unnecessary to consider the desirability of some such rule as is suggested in the argument for the appellant and no occasion arose to assess or to define, as a matter of public policy, the extent to which or the circumstances under which, the confidences of married life should as a matter of law be protected. When, however, by the [Evidence Amendment Act, 1853] the general rule was changed no rule was enacted to the effect that no evidence could be given of any inter-marital communications: nor was it so enacted when the [Criminal Evidence Act, 1898] was passed.’
Lord Hodson also mentioned ( 3 All ER at p 277;  AC at pp 861, 862) the need, recognised by the law, to protect confidential communications between husband and wife, and he limited his decision ( 3 All ER at p 279;  AC at p 864) to the admissibility of those communications in evidence. Lord Pearce expressed himself to the same effect in two short passages ( 3 All ER at pp 279, 280;  AC at pp 866, 867). He said:
‘The common law has been concerned to protect the unity of the spouses and marital confidences. Before 1853 that concern was satisfied by the rule that no spouse could give evidence for or against the other. And that concern was probably at least as much responsible for the rule as was the possibility of bias. There was therefore no need to make a rule excluding, as such, communications between husband and wife. Had such a need arisen, it may be that according to the views then held such a rule would have been evolved, after weighing the disadvantage in principle of disclosing such communications against the disadvantage in principle of excluding evidence which could lead the court to truth and justice.’
Then Lord Pearce said:
‘I doubt if the courts would still be entitled after the [Evidence Amendment Act, 1853] and in the light of its terms, to evolve such a rule from the old common law doctrine of the unity of the spouses and the confidentiality of their private communications; but be that as it may, they did not seek to do so. R. v. Pamenter gives no valid support for such a rule nor is there any other case which does. I appreciate the weight of those considerations which would tell in favour of such a rule were the matter res integra, but I venture to think that the other factors which fall to be considered on a question of public policy weigh more heavily.’
It thus seems to me that the policy of the law, so far from indicating that communications between husband and wife should be excluded from protection against breaches of confidence given by the court in accordance with Prince Albert v Strange, strongly favours their inclusion, and in view of that policy it can hardly be an objection that such communications are not limited to business matters. Of course, the relationship between husband and wife is a delicate relationship. As Atkin LJ said in the famous passage in Balfour v Balfour ([1918–19] All ER Rep 860 at p 865;  2 KB 571 at p 579), at common law in respect of promises between husband and wife
‘… each house is a domain into which the King’s writ does not seek to run, and to which his officers do not seek to be admitted.’
The protection of confidential communications between husband and wife is not, however, designed to intrude into this domain but to protect it, not to break their confidential relationship but to encourage and preserve it. That is why it is the policy of the law and a reason for the old general rule of the common law which made husband and wife incompetent to give evidence in legal proceedings against each other.
There comes then, of course, the practical difficulty of deciding what communications between husband and wife should be protected. Lord Morris Of Borth-Y-Gest refers in Rumping v Director of Public Prosecutions ( 3 All ER at pp 269, 270;  AC at pp 849–851) to this as a reason for the old rule for excluding all evidence by husband and wife against each other, and not merely confidential communications between them. Such a difficulty would be a very good reason for not distinguishing between confidential and other information in the giving of evidence in legal proceedings. There quick decisions have to be made in the course of the giving of the evidence itself, and to be practical and effective a rule would have to be readily and quickly applicable; but an application for an injunction to restrain publication is based on the danger of the publication of particular communications which there is ample time for the court to consider. Of course, even in such cases, decision has to be made whether a communication between husband and wife is confidential and should be protected. If this were a well-developed jurisdiction doubtless there would be guides and tests to aid the court in exercising it. If, however, there are communications which should be protected and which the policy of the law recognises should be protected, even to the extent of being a foundation of the old rule making husband and wife incompetent as witnesses against each other, then the court is not to be deterred merely because it is not already provided with fully developed principles, guides, tests, definitions and the full armament for judicial decision. It is sufficient that the court recognises that the communications are confidential, and their publication within the mischief which the law as its policy seeks to avoid, without further defining the scope and limits of the jurisdiction: and I have no hesitation in this case in concluding that publication of some of the passages complained of would be in breach of marital confidence.
The defendants then submitted that, even if the plaintiff would otherwise be entitled to this injunction which she claims for breach of confidence, nevertheless she ought not to be granted this relief, first, on the ground that she herself had broken the mutual obligation of confidence between herself and her husband by some articles by her published in the ‘Sunday Mirror’ last year; and secondly, by her attitude to the sanctity of marriage as set out in Lord Wheatley’s judgment in the divorce proceedings which I have mentioned.
None of the matters complained of in the plaintiff’s articles disclosed anything complained of in the Duke’s articles. The Duke does not say that he can disclose matters because the plaintiff has already disclosed those same matters; but what he says is that the plaintiff has betrayed the marriage relationship in some ways and so he should be free to betray it in others. In my view, by far the most serious complaint about anything in the plaintiff’s articles is her statement in the article of 9 June 1963, which is exhibited to the plaintiff’s affidavit, that her husband had been taking purple hearts or, to give them their medical name, drinamyl tablets. This, in my view, was a serious breach of confidence, nor, rightly, did the plaintiff’s counsel seek to submit otherwise. The other information in the plaintiff’s articles most relied on by the defendants was that the Duke’s castle at Inverary was saved from being closed by assistance from the plaintiff’s father and a legacy from a Miss Temple. Even after allowing for the disclosure about the purple hearts, however, the accumulation of the Duke’s breaches of most intimate confidences in his articles are, to my mind, of an altogether different order of perfidy. Indeed, the plaintiff’s article of 2 June 1963, though not free from objection, yet leaves on my mind a more sympathetic and favourable impression of the Duke than do his own articles. Lord Wheatley said that by 1960 the plaintiff’s attitude to the sanctity of marriage was - and I quote -
‘what the moderns might call sophisticated but what in plain language can only be described as wholly immoral.’
The breaches of confidence of which the plaintiff now complains appear to be of confidences in the early years of the marriage, well before the period to which Lord Wheatley limited his strong condemnation. When these confidences were made the relationship of the plaintiff and the Duke was apparently that described in para 3 of the plaintiff’s affidavit from which I have already quoted - the normal confidence and trust between husband and wife.
Should, then, the plaintiff be denied the injunction which she would otherwise get because she has herself to an extent broken confidence and because she, after the confidences of whose breach she complains, adopted an immoral attitude towards her marriage? A person coming to equity for relief - and this is equitable relief which the plaintiff seeks - must come with clean hands; but the cleanliness required is to be judged in relation to the relief that is sought.
First, with regard to the plaintiff’s articles, for the reasons already indicated I do not consider that the plaintiff’s own articles justify the objectionable passages in the Duke’s articles or, of themselves, should disentitle the plaintiff to the court’s protection.
Secondly, with regard to the plaintiff’s immorality, it was, of course, the basis for the divorce and the termination of the marriage. Such behaviour makes the confidential relationship of marriage impossible. However, what it does is to undermine confidence for the future and not betray the confidences of the past. If, on divorce, the innocent party is to be licensed to reveal marriage confidences, is the guilty party to be free to do so too? That would be piling injury on injury to the innocent and would be plainly intolerable, but the alternative would be that confidences, like costs, should follow the event. Yet the responsibility for the breakdown of a marriage, involving as it does the most delicate and intimate relationship, cannot always be exclusively attributed to the spouse against whom the divorce decree is granted. And is the marriage, to whose sanctity a spouse’s attitude is material, the marriage between the spouses before the court, or is it to be marriage in general? Take, for example, the case of the Duke on whose behalf this submission is made. Is the attitude of the Duke towards his former marriages to be taken into consideration, or is it to be assumed that he travelled the road to Damascus between each marriage? And if the divorce decree is not to be decisive, then another inquiry to allocate the responsibility is to be undertaken; in which case the general course on such an interlocutory application as this would be to hold the status quo by granting an injunction pending trial. And if, as I have concluded, it is the policy of the law (which is the basis of the court’s jurisdiction) to preserve the close confidence and mutual trust between husband and wife, then that policy and the purpose of that jurisdiction would indeed be impaired if subsequent adultery by one spouse, resulting in divorce, were to release the other spouse from obligation to preserve their earlier confidences. To repeat words already quoted from Lord Radcliffe’s speech in Rumping v Director of Public Prosecutions ( 3 All ER at p 263, letter b;  AC at p 839):
‘… the court’s concern was that no marriage relation, while it subsisted, should be infected by the fear or suspicion that things said only by reason of the special confidence of that relation might later become …’
- and I substitute for the words ‘… the material of legal evidence affecting the speaker’ the word ‘disclosed’.
It is not in my view just that adultery should have retrospective operation on a marriage and not only break the marriage for the future but nullify it for the past. The plaintiff’s adultery, repugnant though it be, should not in my view licence the husband to broadcast unchecked the most intimate confidences of earlier and happier days. And it is in my view established by Lord Ashburton v Pape, in accordance with the references already made to Prince Albert v Strange, that an injunction may be granted to restrain the publication of confidential information not only by the person who was a party to the confidence but also by other persons into whose possession that information has improperly come. In Lord Ashburton v Pape, P was a bankrupt and his discharge was opposed by, amongst others, the plaintiff. P obtained by a trick letters which had been written by the plaintiff to his solicitor and were therefore privileged. P had these letters copied and proposed to use them in the bankruptcy proceedings as secondary evidence of the contents of the letters which, owing to privilege, he could not produce. The plaintiff brought an action for an injunction to restrain P from disclosing the letters or the copies, and Neville J made an order restraining him from doing so except in the bankruptcy proceedings. It was held that the fact that the copies, although improperly obtained, might be admissible as secondary evidence in the bankruptcy proceedings, was no answer to the action, and that the plaintiff was entitled to an absolute injunction without any exception. Swinfen Eady LJ said ([1911–13] All ER Rep at p 711;  2 Ch at p 475):
‘The principle upon which the Court of Chancery has acted for very many years has been to restrain the breach the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. Injunctions have been granted to give effectual relief, that is not only to restrain the confidential information being divulged but to restrain copies being made of any record of that information. If copies have already been made the court will restrain the matter being further copied, and restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it.’
Sir Herbert Cozens-Hardy MR said ([1911–13] All ER Rep at p 710;  2 Ch at p 472):
‘… one passage from Lamb v. Evans ( 1 Ch 218 at p 235), in a judgment of KAY, L.J.,… states briefly and, I think, with perfect accuracy what the true law is upon this subject. He says referring to Morison v. Moat: ‘Then the judgment goes on to give several instances, and many of them are of cases where a man, being in the employment of another, has discovered the secrets of the manufacture of that other person, or has surreptitiously copied something which came under his hands while he was in the possession of that trust and confidence … and anybody who has obtained that secret from him has also been restrained from using it’.’
I come now to the second injunction asked for which is to restrain communication or publication of information relating to the subject-matter of the Timpson action. The latter two-thirds of the third article publishes matter which was the subject of those proceedings. Any matter in that part of the article which may not have been the subject of those proceedings is so inextricably mixed up with what was, that no distinction was sought to be made between them before me; so all that part of the article stands or falls together.
The first ground on which this application by the plaintiff is based is an alleged agreement between the plaintiff and the Duke that in consideration of her agreeing to submit to an injunction, which she did, he would not disclose matters raised in that action. The injunction by consent was granted, not in open court, but in chambers. The plaintiff, in her affidavit, says of her husband:
‘… he promised me faithfully that if I would consent to an injunction he would ensure that Mrs. Timpson and Ian Lorne [that was the other plaintiff to the action and the Duke’s heir] would claim no damages, that I would never hear of the matter again … I therefore consented, and a permanent injunction was granted in chambers in August, 1959.’
Her solicitor, Mr Jobson, swore an affidavit in para 3 of which he says:
‘Accordingly the Duchess gave me firm instructions to submit to an injunction on her behalf. She told me that [the Duke] had suggested that I should telephone him first, and I therefore did so. There is now produced and shown to me a true copy of an attendance note which I dictated early the following morning after that telephone conversation and which accurately records what was said on both sides.’
And that note concludes with the statement,
‘… there was to be no information given to the press if an injunction was granted …’
The Duke himself has given an account of this incident in his affidavit. He says:
‘… before the proceedings were actually commenced I knew that it was the intention of Mrs. Timpson and the Marquess of Lorne to sue and I tried hard to persuade the plaintiff to submit to an injunction in order to bring the proceedings to an end and prevent the nature of the statements being made known to the public, because I realised that, no matter how clearly established it might be that the statements were utterly untrue, nevertheless any disclosure of them to the public could only do harm. It is not correct to say, as the plaintiff does, that I promised her faithfully that if she would consent to an injunction I would ensure that Mrs. Timpson and the Marquess of Lorne would claim no damages and the plaintiff would never hear of the matter again; all that I promised was that I would try my best to ensure that.’
Thus, the Duke’s only answer to the plaintiff’s statement that if she would consent to an injunction he would ensure that she would never hear of the matter again, was that he did not promise to do so but only to try his best to do so. Feeding ‘The People’ with that matter is hardly trying his best to ensure that the plaintiff would never hear of it again.
During the hearing, however, it was suggested that the Duke’s promise was not on his own behalf but as agent for the plaintiffs in the Timpson action. It appears from the Duke’s own affidavit, however, particularly when taken in conjunction with the nature of the subject-matter of the action, that he was himself anxious to bring the proceedings to an end and certainly he had very good reason for being anxious to do so. Nor does the Duke’s affidavit, which I have quoted, appear to be consistent with his just acting as agent. Even if the Duke were now to qualify his affidavit so as to say that the promise was made not for himself but for the plaintiffs in the Timpson action, this would, at its highest in the Duke’s favour, lead to no more than a conflict of evidence which could only be resolved at the trial, and would not in my view defeat the prima facie case established by the plaintiff on this issue.
The plaintiff’s prima facie case is, however, further supported by the reflection that it would be a somewhat futile agreement for the plaintiff, if the Duke, who knew of the subject-matter of the action, would be free to disclose it; and all the more so as the submission by the plaintiff to an injunction was made in chambers and the parties to that action, including the plaintiff in this case, are bound not to disclose what happened there. In fact, in this case the prohibition on such disclosure was later expressly reinforced by the observations of Paull J in open court. He said, to give his precise words:
‘If I find that any statements are made or reports are published purporting to say what has happened before me in chambers I shall take steps to see that the matter is reported to the appropriate authorities for action. It is essential for the proper administration of justice that statements should not be broadcast with regard to matters heard in chambers. Such matters concern the parties only, and no-one else.’
It appears to me that the inherent probabilities of this situation so strongly support the plaintiff’s evidence that, even if the Duke were to amend his affidavit so as to state that his promise was made as agent for the plaintiffs and not in his own behalf at all, I would on this issue, for the purposes of this motion, were it necessary, and were I driven so to do, accept the plaintiff’s evidence rather than that of the Duke.
The defendants argued that no injunction should be granted on the ground that the information about the subject-matter of the action was obtainable elsewhere, for example from affidavits. It is not in evidence that the information was so obtained or is so obtainable; and it was maintained for the plaintiff that it could not be so obtained in this case. However that may be, what I am concerned with here is that it is the Duke in this case who, in fact, is supplying that information; and I am not to be beguiled from that fact by speculation as to other possible sources that may or may not be available for providing that same information. Prima facie the Duke is supplying that information in breach of his agreement with the plaintiff.
The defendants then say that the plaintiff has herself referred to the Timpson case in an article which was published in the ‘Sunday Mirror’ on 16 June 1963. But the nub of the non-disclosure, as I venture to think would be clear to anyone who knew of the subject-matter of the action, was the nature of the slander; and that was not alluded to at all by the plaintiff. Even if the plaintiff should not have referred to the Timpson action as she did, this should not, in my view, prevent the prohibition of the incomparably more serious disclosure of the subject-matter of the action.
My conclusion, therefore, is that the injunction asked for with respect to this action should be granted. For the application for this injunction the plaintiff also submitted that the publication was in contempt of court as being of matters heard in chambers whose secrecy was emphasised by Paull J’s statement which I have read; but in view of my conclusions on the alleged agreement between the plaintiff and the Duke, I find it unnecessary to examine this submission and the arguments in opposition to it.
I come now to the application for the injunction which raises the second important point of law in this case, namely, whether a party to divorce proceedings is entitled to apply to the court to enforce the Act of Parliament which prohibits publication about those proceedings. It would be convenient to take the last three injunctions applied for together to some extent, namely, the injunctions to restrain publication of the subject-matter of the cross-petition for divorce in Scotland, or of the Whigham action or any particulars of the Duke’s divorce petition other than those authorised by the Judicial Proceedings (Regulation of Reports) Act, 1926.
The cross-petition and the Whigham action go together, to some extent, because the cross-petition included a reference to the subject-matter of the Whigham action, and the references in the articles to the Whigham action are in such form as to be dependent on the references to the cross-petition in the only passage in the articles to which they are relevant. Thus, if the reference to the cross-petition should be restrained, then so should the references to the Whigham action which are bound up with them. The objection to the communication or publication of the subject-matter of the cross-petition is based on the Act of 1926 (as is the objection to the publication of particulars of the Duke’s divorce petition) and of the subject-matter of the Whigham action on an undertaking by the parties to the court in that action not to make any statement or comment about the matters in dispute to anybody.
The cross-petition was abandoned and I was informed - and I understand it to be common ground - that no evidence was given in support of it. So I turn to the Judicial Proceedings (Regulation of Reports) Act, 1926. It is a very short Act and I would read it so far as it is relevant. Section 1 reads:
‘(1) It shall not be lawful to print or publish, or cause or procure to be printed or published –
(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, any particulars other than the following, that is to say: -
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment: Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.
(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding five hundred pounds, or to both such imprisonment and fine: Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act.
(3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General.’
It is, therefore, clear from s 1(b)(i) and (ii), that, as no evidence was given in support of the cross-petition, it is not lawful to print or publish or cause or procure to be printed or published any particulars of the cross-petition other than the names, addresses and occupations of the parties. In particular, it is not lawful to publish the charges in the cross-petition which, as I have said, include the subject-matter of the Whigham action. The relevant passage in art 6 written by the Duke does specify this charge in the cross-petition and therefore under the Act of 1926 its publication is not lawful.
The passages on which the application for the last injunction against publication of particulars of the Duke’s divorce petition are based appear in the Duke’s sixth article and give details of certain photographs and of the contents of certain letters which were given in evidence on the hearing of the Duke’s divorce proceedings, and it appears from the article itself that they relate to these divorce proceedings. Such publication of evidence is, in my view, clearly unlawful under s 1(1)(b) of the Act of 1926, except in so far as it is contained in - and I quote from the Act – ‘… the judgment of the court and observations made by the judge in giving judgment’. There is in these passages in the article certain evidence which was included in Lord Wheatley’s judgment, and that would, of course, have to be excluded from any injunction granted.
It is then submitted for the defendants, however, that, even though the Act of 1926 makes the publication not lawful, yet the plaintiff has no status for seeking to prevent publication. This submission is made on the ground that the Act makes the unlawful action an offence. It is argued that a prosecution is the only remedy for contravention of the Act and that an individual injured or threatened with injury by unlawful publication has no remedy under the Act irrespective, of course, of how damaging it might be to him. The law on this question was reviewed by the Court of Appeal in Solomons v R Gertzenstein Ltd. Although the review was obiter and there was a difference of opinion on the application of the relevant legal principles to the statutes under consideration in that case, yet the views of all three lords justice were in accord on what those legal principles were, and it is only for the purpose of ascertaining those principles that I turn to that case. Somervell LJ said ( 2 All ER at p 629;  2 QB at p 253):
‘The final question is whether an offence under the statute confers a civil right of action for damages on a person who suffers, as did the plaintiff here, by the commission of the offence.’
Then a little later he continued ( 2 All ER at p 630;  2 QB at p 253):
‘There have been Acts which expressly confer a right of action for a penalty or damages on a person aggrieved by its breach. There have been Acts which impose a duty without any sanction. We are concerned with neither of them but with Acts which (i) contain provisions which protect members of the public or some members in certain circumstances, (ii) contain their own sanction by penalties or otherwise for the enforcement of these provisions. The courts have held that, under the common law, a person aggrieved by a breach of certain of such Acts has a right to sue for damages, although the Act itself provides only for a criminal sanction.’
Somervell LJ quotes ( 2 All ER at p 631;  2 QB at p 255) from Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd as follows ( All ER Rep at p 133;  2 KB at p 842):
‘Therefore, the question is whether these regulations, having regard to the circumstances in which they were made and to which they relate, were intended to impose a duty, which is a public duty, or whether they were intended also to impose a duty, enforceable by an individual aggrieved.’
And Somervell LJ observes: ‘I think this is the only approach which the decisions justify’. Then he adds ( 2 All ER at p 631;  2 QB at p 256):
‘I hope these citations are sufficient to establish that there is no rule of thumb formula and one must, as ATKIN, L.J., said, consider the Act.’
Birkett LJ ( 2 All ER at p 634;  2 QB at p 261) quotes from A L Smith LJ in Groves v Lord Wimborne ( 2 QB 402 at p 407; [1895–99] All ER Rep 147 at p 150):
‘In dealing with the question whether this was the intention of the legislature, it is material, as KELLY, C.B. pointed out in giving judgment in the case of Gorris v. Scott, to consider for whose benefit the Act was passed, whether it was passed in the interests of the public at large or in those of a particular class of persons. The Act now in question [The Factory and Workshop Act 1878], as I have said, was clearly passed in favour of workers employed in factories and workshops, and to compel their employers to perform certain statutory duties for their protection and benefit.’
Then Birkett LJ continues ( 2 All ER at p 634;  2 QB at p 261):
‘VAUGHAN WILLIAMS, L.J., said ( 2 QB at p 417; [1895–99] All ER Rep at p 153) in the same case: ‘In each case one must look at the whole of the statute, and gather from all its provisions the answer to the question whether that was the intention.’ [I.e., that the remedy provided by the statute should be the only remedy.]’
Romer LJ said ( 2 All ER at p 636;  2 QB at p 264):
‘There is nothing inconsistent, however, in including in legislation which is generally designed to regulate in various ways the lives of a vast community provision for the safety and protection of individuals.’
Then he said ( 2 All ER at p 637;  2 QB at p 265):
‘It is a matter of general sorrow to hear of persons who have been trapped in a burning house without any means of escape; but it is death to the victims themselves. I emphasize this point because it appears to me to be of cardinal importance, in considering whether a civil suit lies for breach of a statutory duty to see whether on a broad view that duty has been imposed for the general welfare, on the one hand, or in the interests of individuals or of a defined or definable class of the public on the other.’
In accordance with these observations it seems to me that the question, therefore, is whether the Act of 1926 on its true construction, in the light of the surrounding circumstances, was intended only for the protection of the public at large or also for the benefit of a class of persons. If it was also for the benefit of a class, then any member of that class is entitled to bring not criminal proceedings for the public offence but civil proceedings in respect of injury to himself.
Under the Act of 1926 a person injured can have no share in the penalty - a factor which Romer LJ apparently considered told against his having no right of action. Nor can any prosecution under it be brought without the sanction of the Attorney General, but it seems to me that this might be relied on on the one hand as a factor tending to indicate that persons injured were to have a remedy otherwise than by criminal proceedings, and on the other hand as a factor tending to indicate that there was to be no remedy except with the sanction of the Attorney General. Although persons other than ‘a proprietor, editor, master printer or publisher’ may ‘print or publish or cause or procure to be printed or published’ and so do what s 1 makes unlawful, yet it is only such persons that are liable to be convicted under the Act of 1926. There is thus, in the case of unlawful action by other persons no remedy under the Act for what the Act itself makes unlawful, unless there is remedy by civil proceedings; and this suggests that such a remedy is intended.
The decisive consideration, however, to my mind is to be found in an analysis of s 1 of the Act of 1926. Section 1(1)(a) makes unlawful the publication in relation to any judicial proceedings (including, therefore, proceedings mentioned in para (b), which may conveniently be referred to as divorce court proceedings) any indecent matter the publication of which would be calculated to injure public morals. Paragraph (b) is, however, limited to divorce court proceedings and forbids the publication of any particulars other than those expressly specified in the paragraph and subject to the proviso which ensures that nothing so expressly specified permits the publication of anything contrary to para (a), that is, indecent matter calculated to injure public morals. Thus para (a) and the proviso to para (b) make unlawful in relation to any judicial proceedings, including divorce court proceedings, the publication of any indecent matter calculated to injure public morals; but what the rest of para (b) does is to forbid the publication of any particulars in relation to divorce court proceedings (other than the expressly specified particulars) even though they are not indecent matter calculated to injure public morals. The protection afforded by para (b) cannot, therefore, in my view, be directed to protect public morals despite the long title of the Act of 1926, namely ‘an Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals’: and the protection of public morals was the only public purpose on which the defendants relied to suggest that the Act was for the protection of the public only.
That para (b) does, in fact, protect those taking part in divorce court proceedings is palpably obvious and was the subject of observations by Willmer LJ in Windeatt v Windeatt ( 1 All ER 776 at p 781). The protection afforded to them, over and above the protection of public morals emphasised in para (a) and the proviso in para (b) is doubtless to be ascribed to the way in which, in divorce courts in particular, reputations were apt to be disproportionately and, perhaps, quite unjustifiably besmirched and, even more, innocent persons were apt to have their most intimate relationships publicly exposed. Even children might suffer cruelly from their parents’ divorce proceedings without there being an injury at all to public morals. Such suffering can, of course, occur in other courts but it is notorious that it is in divorce court proceedings that such suffering was most widespread. And our legislature like our common law and, indeed, our people in general, is apt to apply its remedy, not generally in accordance with any general principle, but pragmatically to the particular difficulty that clamours for treatment. It thus seems to me that the protection which the Act of 1926 provided in divorce court proceedings, at any rate - and it is only with such proceedings that we are here concerned - was not limited to the protection of public morals but was wider in its scope and purpose and, in my view, included the protection, in the words of Willmer LJ ( 1 All ER 776 at p 781) in the judgment to which I have alluded of ‘any person named in a matrimonial suit’.
It is further submitted for the defendants that an injunction would not be granted to restrain a criminal act such as unlawful publication contrary to the Act of 1926, unless it involves injury to property. Passages in Halsbury’s Laws of England were referred to in support of this proposition. The cases cited by counsel, namely Springhead Spinning Co v Riley, A.-G v Sheffield Gas Consumers Co, and Stevens v Chown, Stevens v Clark, were all cases where the injury was to property. The contrast there was between a mere criminal act and a criminal act involving an injury to property. In the case of a mere criminal act an injunction would not issue, but if the criminal act involved an injury to property an injunction would be based on the threatened injury to property independently of the crime. The judges directed their observations to the facts before them - all injury to property cases - and so expressed themselves in terms of such injury. Lord Eldon LC in Gee v Pritchard ((1818), 2 Swan 402 at p 413) says of his equity jurisdiction:
‘… I have no jurisdiction to prevent the commission of crimes; excepting, of course, such cases as belong to the protection of infants …’
A little later, on the same page, when no question of crime was being considered, he said that the material question was whether the facts on which the court’s intervention was sought were ‘… facts of which the court can take notice, as a case of civil property, which it is bound to protect’.
Lord Campbell LC in Emperor of Austria v Day and Kossuth ((1861), 3 De G F & J 217 at p 239), appears to treat this last quotation from Lord Eldon as indicating that a case of injury to property was an exception to the refusal of the Court of Chancery to restrain the commission of a crime. Sir Richard Malins, V-C, in Springhead Spinning Co v Riley ((1868), LR 6 Eq 551 at p 560) treats the last passage quoted from Lord Eldon as saying that the question is whether the facts are such that ‘… the court can take notice of as a case of civil rights which it is bound to protect’.
These quotations are hardly reconcilable unless intended as no more than particular illustrations or applications of the principle that the old Court of Chancery would not grant an injunction unless there was a ground which it recognised as giving it jurisdiction - whether the protection of infants, or of property or of civil rights, which it was bound to protect. Of course, injury to property can be far less serious than other forms of injury such as, for example, injury to reputation; and I see no rational ground whatsoever for distinguishing between injury to property and other forms of injury, nor was any suggested. In my opinion such a distinction is not the purport and effect of the cases cited, and even if such a rule could be disinterred from ancient authorities, yet I would not myself consider it incapable of rational and sensible development to correspond with the different needs and values in a different age. Thus, in my view, the defendants’ submissions that an injunction will not be granted to restrain a criminal act, unless it involves an injury to property, fails.
Junior counsel for the defendants in exercising the right to comment on a case which had been referred to in counsel for the plaintiff’s speech in reply, suggested that an injunction would only lie if the unlawful publication in contravention of statute amounted to a tort for which an action at law would lie, although this case had proceeded and had been fully argued on the footing that there was no such requirement.
Section 45 of the Supreme Court of Judicature (Consolidation) Act, 1925t, re-enacting s 25(8) of the Supreme Court of Judicature Act of 1873, provides so far as material,
‘(1) The High Court may grant … an injunction … by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do.’
The effect of these enactments is that since the Supreme Court of Judicature Act, 1873, as stated by Cotton LJ in North London Ry Co v Great Northern Ry Co ((1883), 11 QBD 30 at p 40)
‘… where there is a legal right which was, independently of the Act, capable of being enforced either at law or in equity [I emphasise those words] then, whatever may have been the previous practice, the High Court may interfere by injunction in protection of that right.’
It appears from Stevens v Chown ( 1 Ch at pp 904, 905), a decision of Farwell J that the right which might be so protected could be a new right created by statute and need not be a right for which an action at law would lie provided it was a right that the Court of Chancery would take cognizance of. And in Pollard v Photographic Co ((1888), 40 Ch D 345 at p 353) North J said:
‘But the counsel for the defendant did not hesitate to contend boldly that no injunction could be granted in a case where there could be no injury to property in respect of which damages could be recovered in an action at law.’
Later he said ((1888), 40 Ch D at p 354):
‘The right to grant an injunction does not depend in any way on the existence of property as alleged; nor is it worthwhile to consider carefully the grounds upon which the old Court of Chancery used to interfere by injunction. But it is quite clear that, independently of any question as to the right at law, the Court of Chancery always had an original and independent jurisdiction to prevent what that court considered and treated as a wrong, whether arising from a violation of an unquestionable right or from breach of contract or confidence, as was pointed out by LORD COTTENHAM, L.C., in Prince Albert v. Strange.’
There are thus clearly formidable considerations against the suggestion that the plaintiff cannot obtain relief by injunction unless the publication constitutes a tort against her. These, however, were cases dealing not with interlocutory injunctions but with final injunctions and it was the practice of the court of Chancery to exercise a jurisdiction, which was not limited to the considerations governing final injunctions, for the purpose of granting interlocutory injunctions pending the trial of a legal right. This jurisdiction was considered by Chitty J in Hayward v East London Waterworks Co ((1884), 28 Ch D 138 at p 145) where he indicates conveniently the nature of the action. He said:
‘The defendants threaten to cut off the supply [i.e., of water] to the plaintiff’s houses unless the full amount claimed by them for the rate in advance up to Christmas is forthwith paid.’
Previously in his opening remark he said ((1884), 28 Ch D 138 at p 145):
‘A bona fide dispute has arisen and still subsists between the plaintiff and the defendant company as to the basis on which the rate ought to be calculated.’
Then he dealt with the jurisdiction and said ((1884), 28 Ch D at pp 146, 147):
‘In these circumstances the question is whether the plaintiff is entitled to an injunction to restrain the defendants from cutting off the water. The writ asked for an injunction without limit of time. But the only injunction that could be granted in the existing circumstances would be up to Christmas. It was argued by the company that the plaintiff’s right to the supply of water was a statutory right, and that the only remedies open to the plaintiff were those given by the statutes which conferred the right, and that the statutes conferred a special remedy by penalty payable to the person aggrieved when the water was cut off. As at present advised, I should, if it were necessary to decide the question, decline to adopt this argument. I see no reason why the court should refuse to protect a right by injunction merely because it is a statutory right. In Cooper v Whittingham Sir George Jessel MR held, that the ancillary remedy by injunction ought to be granted, although the statute had created a new offence and imposed a penalty, and in his judgment he referred to the Judicature Act, 1873, s 25, sub-s (8), enabling the court to grant an injunction in all cases in which it shall appear to be just or convenient, and stated his opinion to be that this enactment might be said to be a general supplement to all Acts of Parliament. Sir George Jessel MR gave a wider interpretation to the enactment than has since been adopted by the Court of Appeal. But the Court of Appeal did not in North London Ry Co v Great Northern Ry Co overrule the decision in Cooper v Whittingham, or lay down any principle inconsistent with that upon which the case was decided. Before the passing of the statutes conferring on the Court of Chancery jurisdiction to determine questions of legal right, it was the constant practice of the Chancery Court to intervene by injunction in proper cases for the protection of the plaintiff in equity pending the trial of the legal right and until that right could be determined at law. But the intervention was temporary, and the court required that proceedings should be taken to obtain the decision at law. It seems to me that the principle involved in that practice would apply to the present case. It was argued for the defendants that the damage to the plaintiff by cutting off the water would not be irreparable. But I am satisfied that that argument by itself could not prevail. The supply of water to the inhabitants of London now depends almost entirely on the water companies, and in the present case there are no less than 150 persons dwelling in the plaintiff’s houses. I should have no hesitation in saying that the cutting off the supply of water for domestic purposes would be damage of that grievous nature that would have fallen within the principle of the decisions of the Court of Chancery as to irreparable damage before the passing of the Judicature Act, and that, at all events, it would fall within the Judicature Act, 1873, s 25, sub-s (8).’
In this case, as in that, there is a dispute as to a statutory right and in addition irreparable injury to the plaintiff before trial if an interlocutory injunction is not granted. Thus, in my opinion, the jurisdiction which I am asked to exercise on this motion is a jurisdiction which the old Court of Chancery had, with the result that this submission for the defendants fails. Nor, even if I were not to come to this conclusion, would it in my view be proper to consider that such a disputable suggestion thus made at the last moment and without full argument should defeat the plaintiff’s prima facie case for an interlocutory injunction, particularly when to refuse the injunction would allow publication which would be irrevocable and substantially defeat the whole purpose of the action.
My conclusion, therefore, is that the plaintiff is entitled to injunctions substantially as asked in respect of the cross-petition and the divorce proceedings, and, as I have already indicated, the injunction in respect of the cross-petition will similarly apply to the reference to the Whigham action which is bound up with the reference to the cross-petition in the relevant passage in the Duke’s articles.
I come now to the plaintiff’s further submission that publication of the subject, matter of the Whigham action would be of information comprised in the undertaking given in the settlement of that action and should be restrained by injunction. The statement made by counsel for the plaintiff in open court was, so far as material, as follows:
‘Agreed terms of settlement are embodied in a Tomlin Order, and I need only tell your lordship that the plaintiff’s claims for conspiracy, malicious prosecution and injurious falsehood are to be dismissed, and that Margaret, Duchess of Argyll is to pay to the plaintiff a sum of £25,000 in respect of the libels complained of as well as the plaintiff’s costs of the action. I would therefore ask your lordship now to make the agreed order in the form which has been placed before you. I would add that all parties are undertaking that, so as to avoid any further publicity about this dispute, none of them will make any statement or comment hereafter about it to anyone.’
It is clear and accepted that the undertaking which was given by the parties in this case was an undertaking which was given to the court and the breach of the undertaking would therefore be a contempt of court, so that a fortiori, in my view, would the disclosure of confidential information which was the subject of such an undertaking not to disclose, be restrained.
In this case the subject-matter of the Whigham action is confidential information subject to the undertaking and it has apparently never been published or communicated to any person other than the parties to the action and their representatives, subject only to the qualification that the Duke has possession of that information. That possession is not explained by him, although it is a matter peculiarly within his knowledge and he has had the opportunity of doing so. Nor has it been explained by anyone else. Nor do I appreciate how the Duke would be more likely to obtain the information than from a party to the action in breach of the undertaking. In these circumstances, so far as it may be relevant and necessary for the present purposes, I would conclude that on the evidence as it at present stands, that it was prima facie so obtained. The result, therefore, is that in my view the plaintiff has also established this ground for her application for an injunction in respect of the subject-matter of the Whigham action.
The overall result of this motion therefore is that last Friday I granted the injunctions claimed subject to any modification today as to their precise form, and I then in the case of each injunction indicated - and I need not now repeat - the passages in the Duke’s articles which I considered required that those injunctions should be granted.
John Thomas Wheatley, Baron Wheatley PC, KC
(17 January 1908 – 28 July 1988) was a Scottish Labour politician and judge.
Educated at St. Aloysius' College, Glasgow, Mount St. Mary's College, Sheffield, and the University of Glasgow he was admitted as an advocate in 1932. He served in the Royal Artillery and the Judge Advocate Generals' Branch during World War II. He is thought to be the last advocate to appear before in the Court of Session in military uniform.
He was an unsuccessful parliamentary candidate for Bute and North Ayrshire in 1945 and for Glasgow Bridgeton in 1946, where he was defeated by the Independent Labour Party candidate. He was elected for Edinburgh East at a by-election in November 1947 and sat for the constituency until 1954.
He was Solicitor General for Scotland from March to October 1947, when he was appointed Lord Advocate. He was appointed a King's Counsel and a Privy Counsellor in 1947. One of his most significant achievements as a politician was the establishment of the legal aid scheme in Scotland, something of which he was justifiably proud for the rest of his life.
He was appointed to the bench, with the judicial title Lord Wheatley. In 1970 he was created a life peer, as Baron Wheatley, of Shettleston in the County of the City of Glasgow. In 1972 he was appointed Lord Justice Clerk, a post he held until 1985.
Wheatley was a life-long Roman Catholic. He was also known for hard sentencing of crimes involving sex. Even whilst Lord Justice-Clerk (an appeal judge), he exercised his right to sit as a trial judge in criminal cases, and handed out long sentences for such crimes.
It was Wheatley's memorial service in 1988 which was attended by his old friend Lord Mackay of Clashfern, at the time Lord Chancellor. As a member of the Free Presbyterian Church of Scotland, which strongly disapproves of Roman Catholism, Mackay was disciplined by his church for having merely entered a Roman Catholic church and attended the memorial service.
Wheatley's son-in-law is the former father of the House of Commons Tam Dalyell, who married Wheatley's daughter Kathleen Wheatley in 1963.
The Lord Emslie, who died on Wednesday aged 82, was, as Lord President of the Court of Session and Lord Justice General, Scotland's senior judge from 1972 until 1989; as an advocate, he had earlier represented the Duke of Argyll in a scandalous divorce case.
During his time on the bench, Emslie was also responsible, as leader of the Appeal Court, for allowing the private prosecution of a group of three youths for rape in 1982, after the collapse of the Crown's case the previous September. The "Glasgow Rape Case", which had been dropped after doubts about the mental state of the victim and her ability to give evidence, had created considerable controversy, and led to the resignation of Nicholas Fairbairn, the Tory MP and Solicitor General for Scotland.
But despite the publicity which the case had attracted, and after a new psychiatric evaluation of the victim, Emslie ruled that a private prosecution was reasonable, although he acknowledged that a risk of prejudice had been created. While securing a fair trial was of the highest importance, he declared, so too was the public interest in the administration of justice and the trial of criminals.
"Great weight must be given to this latter aspect of the public interest in the case," he said, adding that the public memory of the content of newspaper articles was notoriously short. He granted a bill of criminal letters, a rarely-used procedure which allowed the arrest of the defendants and a private prosecution. All three men were later convicted of the crime.
George Carlyle Emslie was born on December 6 1919 in Glasgow, the son of Alexander Emslie, a manager with the North British and Mercantile Insurance Company. His forebears had been farmers at Potterton, near Aberdeen. Young George was educated at Glasgow High School and the city's university, from which he graduated in Arts and Law. (Until relatively recently, Law was available only as a second degree in Scottish universities.)
His studies were, however, interrupted by the outbreak of war, and Emslie signed up for the Argyll and Sutherland Highlanders in 1940. Between 1942 and 1946, he saw action in North Africa, Italy, Greece and Austria, and was mentioned in dispatches. Emslie graduated from the staff college at Haifa in 1944 - remarkably, aged only 25 - and served as a Brigade Major (Infantry) for the next two years.
But although he might well have continued with an Army career, Emslie chose to return to Glasgow University, and was called to the Bar at Edinburgh in 1948. He served as an Advocate Depute in the Sheriff Courts in 1955, taking silk two years later. In 1961, he conducted a public inquiry into the rents set by local authorities on behalf of the Secretary of State for Scotland, after it had emerged that one third of Dunbarton's council tenants were paying four times more for the rental of their television sets than they were charged in rent (2s 10d for all-electric flats with underfloor heating).
In 1963, he represented the Duke of Argyll when his divorce case, which had begun in 1959, finally came before the courts. The 11th Duke of Argyll, Chief of the Clan Campbell and Hereditary Master of the Royal Household in Scotland, had sued his wife (nee Ethel Whigham) for divorce on the grounds of adultery with three men; the case gripped the country.
When it came to court in Edinburgh, it lasted 11 days and notoriously brought to light a photograph of the Duchess, naked but for three strings of pearls, engaged in a sexual act with the "Headless Man" - so-called because his face did not appear, and whose identity was the subject of feverish speculation for many years afterwards.
Emslie, representing the Duke, succeeded in introducing into evidence a racy diary in which the Duchess had listed the qualities of a number of lovers, who appeared in the narrative with the regularity of hot dinners.
Lord Wheatley, who eventually concluded that the Duchess was "a completely promiscuous woman [whose] attitude towards marriage was what moderns would call enlightened, but which in plain language was wholly immoral", was persuaded to include the diary after Emslie pointed out that it had been openly lying on her bedside table, and could not be regarded as confidential.
In 1963, Emslie became Sheriff of Perth and Angus, and in 1965, Dean of the Faculty of Advocates. After becoming a judge (Senator of the College of Justice and Lord of Session) in 1970, he succeeded Lord Clyde as Lord Justice General. He also became the first judge, rather than the Lord Advocate of the day, to become President of the Court of Session. This involved his being specially sworn of the Privy Council.
Among his other notable judgments, Emslie compelled Glasgow's Labour-controlled corporation to introduce selective intake for schools in 1972, argued for the retention of mandatory life imprisonment for murder and, in 1983, ruled that the sale of "glue-sniffing kits" to children was a crime. Emslie's opinion was that, even if the offence were hitherto unknown, the wilful administration of a dangerous substance to another was a crime under the Common Law of Scotland. In 1989, he ruled that a man could be charged with the offence of rape against his wife (in advance of English law) and that parents had the right to smack their children.
He remained convinced of the merits of Scotland's judicial system, which he thought "infinitely superior to criminal law in England, because it has not been stuffed into statutes. It is much more flexible. We would not have got into the kind of mess that has emerged from the so-called Guildford Four".
Emslie, whose military bearing and clipped moustache disguised a genuine friendliness and easy manner with colleagues and court officials, relaxed by birdwatching, golfing and following Hibernian Football Club.
Emslie was appointed MBE in 1946, and created a life peer in 1980.
Emslie's wife, Lilias Ann Hannington, predeceased him in 1998. He is survived by three sons; two followed him into the law. Both now sit on the bench in Scotland; Lord Kingarth is a Senator of the College of Justice and Lord [Nigel] Emslie a former Dean of the Faculty of Advocates in Edinburgh.
Campbelltown in Argyll and Bute
The Thistle Knights
Some information about Lord Emslie
Women marriage and sex
Sex addiction: The facts from the fruity fiction
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