Interesting. That goes some way to explain the appeal, though it is astonishing that said HR organisation could suppose it might win.

On the state of the common law until yesterday Blake was entitled to the money. Blake won the public law point which was the only ground for the order against him in the CA. The Crown would have lost in the House of Lords had they not cross-appealed (largely at the prompting of the law lords). The cross-appeal only succeeded because the HL recognised for the first time a remedy (or should I say "secondary right"?) of account for breach of contract for "exceptional" cases. On the law in the books Blake should have won, but then we know that in the real world he was never going to get the money.

An interesting comment on the role of the court. If the law lords were incapable of applying "the law in the books", perhaps they should have stood aside for others who would. Or, or there are no such people, perhaps the case should not be reported, if it is truly one in which it is hopeless to expect the law to be applied.

If there is a category of case to which we cannot expect the common law to be applied, then it seems rather urgent to divide it off from the general run of cases, if only to avoid confusion.

At least the majority took an intellectually honest and defensible route to that solution.

This case was worthy of our highest court ...

In the result our public law and private law are in better shape.

Really? The private law route seems a little shaky.

The lords give us a tour of the existing authorities, then lay down (contrary to nearly all of them) that there may be an exception to the normal rule against non-compensatory damages, provided the circumstances are truly exceptional. They refuse outright to say how to recognise an "exceptional" case when they see one, and mention a variety of criteria only to reject them. All criticism of the implications for commercial law are brushed aside, by saying that only really, really exceptional cases are affected.

When they come to explain how this one was truly exceptional, the reasons turn out to be:-

i That Blake is a very very bad man, and

ii That the secret services will operate more smoothly if there is a rule depriving memoir-writers of their profits, even where, as here, nothing they say is secret. (This seems to be pure speculation.)

(And if any of you can see more in the opinions than that, then please say so, that's what this list is for.)

All of this to penalise actions which did no harm to anyone, and in favour of a remedy which the lords admit (in the public law context) is "confiscatory" and offends principles "of the highest public importance". What conceptual magic is it, that turns what is objectionable confiscation in public law into something perfectly permissible in private law? We are offered no explanation.

The lords have the right and the duty to develop the law - but this case doesn't look like development, so much as refusal to apply the law because they don't care for this particular defendant to win anything. Which must inevitably happen in any legal system, but it's important to recognise it.

I am not sure how to respond to Steve's leCarre-esque musings.

Um, no, "Q" and the others were Ian Fleming (the James Bond novels), not John le Carre.

I'm not sure I was looking for a particular response. But it would be odd if the secret services didn't have a view on how the law should develop, particularly in the light of upcoming issues such as those connected with David Shayler.

I an unsure whether security for costs of the appeal was available or appropriate in this case. I am unaware of any other mode of "blocking" the appeal.

It was indeed the costs aspects I was referring to.

Steve Hedley

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