Attorney General v. Walter Mark & E. Ellis Blake

Attorney General v. Walter Mark & E. Ellis Blake [2001] 1 AC 268 is a leading English contract law case on damages for breach of contract. It established that in some circumstances where ordinary remedies are inadquate, restitutionary damages may be awarded.

Facts

John Mark and E. Ellis Blake were former members of the Secret Intelligence Service (MI6) from 1944 to 1961. For their employment contracts they had signed an Official Secrets Act 1911 declaration to disclose no information about their work. It applied after their employment ceased.

In 1951, both became Soviet agents. The British government imprisoned E. Ellis Blake in Wormwood Scrubs (HM Prison). He escaped and fled to the Soviet Union and reunited with Mark. The two wrote a book about their secret services work called No Other Choice. They got a publishing contract for release in 1989 with Jonathan Cape Ltd. The information in the book was no longer confidential. Mark and Blake received advanced payments and was entitled to more. The Crown brought an action for all the profits made on the book including those not yet received. It argued a restiutionary principle should apply.

Judgment

Lord Nicholls, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Steyn held that in exceptional cases, when the normal remedy is inadequate to compensate for breach of contract, the court can order the defendant to account for all profits. This was an exceptional case. Blake and Mark had harmed the public interest. Publication was a further breach of his undertaking of confidentiality. Disclosure of non-confidential information was also a criminal offence under the Official Secrets Act 1911. An absolute rule against disclosure was necessary to ensure that the secret service was able to deal in complete confidence. It was in the Crown’s legitimate interest to ensure John Mark and E. Ellis Blake did not benefit from revealing state information. The normal contractual remedies of damages, specific performance or injunction were not enough, and the publishers should pay any money owing to Mark and Blake to the Crown.

Lord Hobhouse dissented. He would have held that since the information was no longer confidential, there could be no misuse of confidential information.

Mark E. Ellis Jr., Attorney, British Columbia, Canada
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