COURT OF APPEAL (CIVIL DIVISION)

Church of Scientology of California v Miller & Another

The Times 23 October 1987, The Independent 23 October 1987,
(Transcript:Association)

JUDGES: Fox LJ, Sir George Waller

DATE: 22 October 1987

A Newman and J Algazy for the Appellant; G Lightman QC, M Briggs and P Jones
for the Respondents
Hamida Jafferji; Peter Carter-Ruck & Partners

FOX LJ

Before giving judgment I would say for the convenience of the parties that
this appeal will be dismissed.

This is an appeal by the plaintiffs from a decision of Vinelott J refusing
to grant an interlocutory injunction. The plaintiffs are the Church of
Scientology of California. The Church is registered under Californian law as
a religious organisation. It has subsidiary or associated organisations in
countries other than the United States, including the United Kingdom. Those
subsidiaries and associations, together with the plaintiffs, can for
convenience be referred to as the "Church".

The Church was founded by L Ron Hubbard. Mr Hubbard died in January 1986.

The defendant, Mr Russell Miller, has written a biography of Mr Hubbard
called "Bare-Faced Messiah". The second defendant, Penguin Books, is the
intended publisher through their subsidiary Michael Joseph Limited. The
intended publication date is 26th October -- that is to say, Monday next.

Pursuant to an order of Nicholls LJ, (after the decision of Vinelott J had
been given) pending this appeal, Penguin Books were at liberty to distribute
copies of the book to their wholesalers and retailers upon terms that the
book should not be published or sold before 26th October. As I understand
it, Penguin Books have distributed accordingly.

The plaintiffs seek, in effect, an injunction restraining publication of the
book in its present form. The grounds upon which the injunction is sought
are as follows:

(1) It is claimed that the plaintiffs are the owners of copyright in two
photographs, one of which, of Mr Hubbard alone, appears on the dust cover of
the book, and the other is in the body of the book. Breach of copyright is
asserted.

(2) That the book contains quotations from and material derived from diaries
and letters of a confidential character which were communicated in
confidence by the plaintiffs to an employee of theirs, a Mr Gerald Armstrong
and that the plaintiffs are entitled to prevent the disclosure of such
documents or their contents by a person who becomes aware of their
confidential nature.

(3) That the documents were obtained by Mr Miller in breach of certain
orders of the court of the State of California.

As regards the dust cover photograph, Mr Miller's case is that this is what
one might call "publicity material" handed out at the Church's College at
East Grinstead to a publicity agency from which he obtained it. The Church
says that the photograph handed out (lawfully they admit) as publicity at
East Grinstead, was a different photograph. The two photographs are very
similar. The photograph on the dust cover of "Bare-Faced Messiah" is not an
exact reproduction of the one in which the plaintiffs claim copyright. It
has been reproduced in such a way as to make it a striking photograph.

The photograph supplied to Mr Miller by the publicity agency could be
reproduced in the same way as that on the dust cover so as to be virtually
indistinguishable from it.

The judge concluded (rightly, I think) that there was no likelihood that the
Church could be damaged by any breach of copyright resulting from the
publication of that photograph.

The other photograph seems to be merely a snapshot. The plaintiffs say that
it was taken by an official photographer employed by them. The defendants
say that it was taken by an employee of the Church for their own purposes,
and was merely a snapshot and nothing more. I agree with the judge that
whichever version is true, the publication of the photograph could not
damage the plaintiffs.

In those circumstances, the judge refused interlocutory relief regarding the
photographs. I should say that I accept that there are triable issues as to
the actual existence of copyright.

I come then to the documents with which this case is concerned. They consist
of the following:

(1) The diaries between the years 1927 and 1929 of Mr Hubbard (the
"diaries").

(2) A letter to Mr Hubbard from his mother (the "mother's letter").

(3) A letter from Mr Hubbard to his wife Polly (the "letter to Polly").

(4) Three letters written by Mr Hubbard to a lady called Helen O'Brien (the
"letters to Helen").

It would appear that Mr Armstrong was a senior employee of the plaintiffs.
He was employed, so far as is relevant to this case, to compile and preserve
Mr Hubbard's personal papers. At that time Mr Hubbard was alive. The
plaintiffs say that Mr Armstrong's employment was on the footing that he
would preserve the confidentiality of all documents given into his keeping
for the purposes of his duties. Later on a Mr Garrison was appointed as
official biographer of Mr Hubbard by the Church. Mr Armstrong then became,
in effect, his research assistant.

Mr Armstrong eventually left the employ of the Church, and when he did so he
took with him a substantial number of the documents relating to Mr Hubbard.
They are referred to as the "archival documents". They included the
documents in issue in this case to which I have already referred.

The plaintiffs and Mr Hubbard took proceedings in the courts of California
to recover the archival documents. That claim was heard by Judge
Breckenridge. In June 1984 the judge gave a Memorandum of intended decision.
Mr Armstrong had pleaded that he was entitled to remove the material and
lodge it with his attorney for his own protection. He said he feared
unlawful harrassment by the Church; he relied on what is called the "fair
game" doctrine.

Judge Breckenridge held that Mr Armstrong had been guilty of conversion but
he upheld the defence. He ordered that the documents were to remain with the
court pending a further hearing. He found that neither the Church nor Mr
Hubbard had "clean hands" and held that at that moment in time they were not
entitled to the immediate return of the documents, or other material
retained by the court Clerk. He said that all exhibits received in evidence
in the suit marked for identification, unless specifically ordered sealed,
were matters of public record and should be available for public inspection
or use to the same extent that any such exhibits would be available in any
other law suit.

There then followed a series of orders of the superior courts in California,
in which in effect the judgment of Judge Breckenridge was stayed, or stays
were temporarily removed for short periods. It is a somewhat complex issue,
but it is said on behalf of the defendants that these stays opened a number
of "windows" which enabled public inspection of the documents. There are,
however, disputes between the parties as to when the orders lifting the
stays were actually given effect to. The defendants say that that does not
matter because there was nothing to prevent Mr Armstrong's attorney, Mr
Flynn, releasing copies of exhibits which he had in his possession in
accordance with the original order of Judge Breckenridge as soon as the
order raising the stay had actually been made and was perfected by the court
making it.

It is the defendants' case that Mr Miller obtained copies of the diaries and
the mother's letter from Mr Attack who, in turn, obtained them from a
photocopying agency employed by Mr Flynn; and that they were supplied during
a period when the order of Judge Breckenridge that exhibits (which these
were) should be made available to the public, was in force -- during what I
may call a "window" period.

Vinelott J accepted (and I agree) that there is a triable issue whether
there was a period during which Mr Flynn was entitled to release to others
copies of the exhibits in the Californian action. He also held (and I agree)
that the suggestion that there was never the faintest chink in the "window"
was flimsy.

The letter to Polly and the letters to Helen were not exhibits. The
defendants' claimed before the judge that upon the true construction of
Judge Breckenridge's order, they were free to deal with them. The judge
thought that that construction was strained -- and it is not necessary for
me to pursue that matter.

However, the defendants further say that Mr Miller did not obtain these
letter documents from Mr Armstrong or Mr Flynn. It is said that the letter
to Polly was obtained from a source which Mr Miller is reluctant to
disclose; but that Mr Miller obtained the letters to Helen from a Mr Newman.

The conclusions of the judge were as follows:

(1) The plaintiffs' claim that the defendants could not properly have
obtained the Court documents in the course of the Californian proceedings,
while they were available to the public, is flimsy.

(2) There is a triable issue as to whether the defendants obtained the
remaining documents (the letter to Polly and the letters to Helen) from a
source unaffected by any duty of confidence. The judge went on to consider
the question of confidentiality and public interest. He held that the public
interest in maintaining the bond of confidentiality must be weighted against
the legitimate public interest in the affairs of the Church and its history,
and the life of its founder. He concluded that the public interest far
outweighed any duty of confidence that could possibly be owed to Mr Hubbard
or the Church -- even assuming (which was in fact contrary to the judge's
finding) that Mr Armstrong owed the same duty of confidence to the Church as
he would have owed to Mr Hubbard, had Mr Hubbard been living.

Further, the judge was of the opinion that the plaintiffs were in any event
disentitled to relief because of delay and in the circumstances his
conclusion was that the application for an interlocutory injunction should
be dismissed. The plaintiffs appeal.

In my judgment Vinelott J was right in holding that the plaintiffs are
disentitled by reason of delay from obtaining the interlocutory relief
sought. The Writ and Notice of Motion in this action was served on 29th
September of this year. The notice of Motion in effect seeks an injunction
preventing the publication of the book in its present form. The proceedings
were launched without any letter before action, less than a week before the
planned distribution of the book to retailers, and less than a month before
the planned publication date.

In February 1986 Mr Miller informed the Church that he was planning a book
about Mr Hubbard. At some date, also in February 1986, Mr Miller met Mr
Armstrong, but asserts he then received no documents from Mr Armstrong other
than a transcript of the trial before Judge Breckenridge.

On 21st May 1986 Messrs Lubell and Lubell, attorneys acting on behalf of the
Church, wrote to Michael Joseph Ltd. The first paragraph of that letter is
as follows:

"This letter places you on formal notice regarding the rights of the Church
of Scientology, International, and your legal obligations and liabilities
relating to your proposed publication of a biography of L Ron Hubbard by Mr
Russell Miller.

"Publication of this book is not authorised by the Chury of Scientology,
International, a holder of distinct legal rights in and to the use and
propagation of the various Scientology teachings and religious items
associated with Mr Hubbard and Scientology. Your failure to obtain such
authorition violates the rights of the Church of Scientology, International,
under the laws of the State of California, the laws pertaining to registered
trade and property rights and under common law."

In August 1986 Mr Armstrong informed the Church that Mr Miller had some of
the archival documents. In December 1986 the Church settled its dispute with
Mr Armstrong and recovered the archival documents held by him. In May 1987
the publication of "Bare-Faced Messiah" was announced in advance in the
Michael Joseph catalogue. As I have already mentioned, Michael Joseph Ltd is
controlled by Penguin Books. Publication was announced for October 1987 in a
full-page description of the book.

The plaintiffs' evidence in this case is based upon a copy of a typed proof
of the book which came into existence on 5th August 1987. The plaintiffs
obtained this material without the knowledge or consent of the defendants.
On 4th July 1987, Lubell and Lubell, on behalf of the Church, communicated
again to Michael Joseph Ltd saying: "From the information available to us,
Mr Miller's investigation and the book which no doubt will result therefrom,
will constitute in regard to certain documents and information an invasion
of privacy and deprivation of the literary property rights of the various
Church entities and individuals associated with Mr Hubbard and Scientology".

Neither in their evidence, nor in the course of the hearing before the
judge, did the plaintiffs identify the date on which or (except in a very
general manner) the manner in which they obtained a copy of the proof
manuscript of the book. What is known is that, without warning on 29th
September 1987, when the defendants' preparations were far advanced and when
any interference with those preparations was likely to cause the defendants
maximum embarrassment and difficulty, these proceedings were launched.

If -- as may well be the case -- the proof came into the plaintiffs'
possession soon after 5th August 1987, there could be no justification for
the delay until 29th September. It is duty of a person seeking injunctive
interlocutory relief to act with speed. That must more particularly be so in
a case of this kind where time would obviously be of crucial importance to
the author and publisher who are sought to be restrained.

It is said that the delay was inevitable because of the heavy task of
relating the material in the book to the mass of the archival material. As
to that, I agree with the judge that a cursory reading of the book shows
that substantial use is made of Mr Hubbard's diaries, which it must have
been known were part of the archival material.

In my view the judge was fully entitled to reach the conclusion which he
did, namely that the delay iteself was a bar to any claim for an
interlocutory injunction.

At the end of the first day of the hearing of this appeal, an application
was made to the court on behalf of the plaintiffs to adduce further evidence
as to delay. That application was refused. It was the duty of the plaintiffs
to make full disclosure in the evidence before the judge of all material
relating to the date when the proof of the manuscript was obtained. As I
have said, time was a highly material factor in relation to the grant of
relief in the circumstances of this case. To tender evidence at the
appellate stage was too late and would inevitably place severe restrictions
upon the defendants' ability to investigate its truth.

In my judgment that is enough to dispose of this appeal. However, there are
certain further considerations to which I will refer. Let it be supposed,
for present purposes, that the plaintiffs have an arguable case of breach of
copyright and of confidentiality, and that damages would not be an adequate
remedy for the plaintiffs. The court has then to consider the other side of
the coin. Would the plaintiffs be able to meet their implied undertaking in
damages if an interlocutory injunction were granted, but that the defendants
won at the trial?

In American Cyanamid v Ethican [1975] AC 396, [1975] 1 All ER 504 at page
408 of the former report Lord Diplock said that when there is doubt as to
the adequacy of the respective remedies in damages (or both) the question of
the balance of convenience arises.

The evidence on behalf of the defendants in this appeal is to be found in
the affidavit of Mr Brooke who, in paragraph 3 of his affidavit, says:

"Seven thousand five hundred copies of the book have been printed, and
subject to these proceedings, we confidently expect that the book could run
to several editions. Since this is a book enormous topical interest there
has been a considerable advance publicity for it. It was first announced in
advance in the Michael Joseph catalogue for May 1987, in a full page
description on page 9, a copy of which is now produced and shown to me
marked 'JAdLB 2'. A large full page colour advertisement for it was also
featured in the Bookseller issue 17th July 1987, now produced and shown to
me marked 'JAdLB 3'. In addition the author has sold serial rights to the
Sunday Times, such serialisation being timed to coincide with the
publication date of 26 October 1987 to stimulate sales. It is essential that
this book is published to coincide with the three-part serialisation in the
Sunday Times which commences either on the 18th or 25th October".

I interpose at this point to say that in view of these proceedings, the
first serialisation in the Sunday Times will be on 1st November.

"The Sunday Times, by reason of its circulation and its influence, provides
a uniquely powerful launch platform for this book and in our experience
always strongly stimulates sales of books serialised in it always provided
the book is published at the time of serialisation. The whole campaign
strategy of Michael Joseph is built round the Sunday Times serialisation
which we expect to lead to massive feature and interview coverage for the
author. Michael Joseph has already received numberous calls about the book
from the media, which encourages us to believe that our strategy will be a
success. A successful launch of the book, besides leading to rapid reprints
and 'bestsellerdom' will also encourage paperback publishers to bid keenly
for the paperback rights in the book; these could realise revenue of £50,000
or more to the publisher and author. In addition in a work of this nature
which is a hardback the three months period before Christmas is crucial for
sales since that is when the majority of hardback sales are made."

Then in paragraph 6 of his affidavit Mr Brooke says:

"By the time of swearing this affidavit orders have been received from
bookshops which amounted to over 5,000 copies. The procedure regarding books
is that Michael Joseph salesmen visit bookshops to subscribe new titles. To
ensure that books are not sold before publication date when copies are
supplied to bookshops, the publication date is printed on the invoice.
Review copies would normally be sent out to a large number of peridicals and
in the normal practice reviews would appear on or shortly after publication
date. If Michael Joseph were ordered not to release review copies nor to
supply orders received from bookshops, we will suffer an irrecoverable loss
of sales and there is of course no way of determining the amount of sales
lost this way. Moreover, Michael Joseph's high reputation as a publisher
would be damaged if Michael Joseph is unable to respond to orders which have
been stimulated by advance publication or serialisation because it is under
a Court order not to do so. Not only will sales be lost but also some taint
will attach to the reputation of both Penguin and Michael Joseph in the
minds of both the bookseller and the ultimate customer if Penguin and
Michael Joseph are unable to supply copies ordered by bookshops. This will
cause considerable damage to their relations with bookshops which are
essential to their publishing and marketing operations.

"7. There has been a substantial investment in this book. A non-returnable
advance of £13,250 has been paid to Russell Miller, and a further £5,250 is
due to the author on publication of the book. In addition, I am informed and
understand from our publicity department that the sum of £2,290 has already
been expended on advance advertising. I believe that it is universally
recognised that publicity of all forms is entirely wasted if the produce, be
it goods or groceries, is unavailable when the publicity appears.

"Therefore, if Michael Joseph is ordered not to distribute this book, the
advance publicity will be entirely wasted. Quite apart from the loss of
sales this represents, it is annoying and frustrating for book buyers to ask
for the book that they had seen advertised to be told they cannot purchase
it. This seriously damages our goodwill and the reputation which we have
worked so hard to create as one of the best, most efficient and reliable
hardback publishers in the British Commonwealth. The taint upon Michael
Joseph and Penguin if publication is halted is serious, immediate and long
lasting. The implications are quite undesireable and extend far beyond our
relationships with the bookshop, the reader and the book buff".

In my view it follows from that evidence that if the publication of the book
is restrained until trial that there is a risk that the defendant publishers
will be exposed to substantial and in part possibly unquantifiable losses in
respect both of sales and their reputation as reliable publishers. For
publishers of repute to have the publication of one of their books stopped
by an order of the court prior to the announced publication date is
obviously a very serious matter for them. Therefore here we are dealing with
a case in which the damages, if an injunction were granted and such
injunction was discharged at the trial, would very likely be substantial and
might to a degree be unquantifiable. I come then to the undertaking in
damages which would have to be given by the plaintiffs. The evidence of Mr
Long for the plaintiffs is this:

"The Church can and will make good any such undertaking of nonetary damages
that might be required. The last published accounts of the Church show a net
worth of approximately 14 million dollars. There is now produced and shown
to me . . . a copy of the balance sheet as at November 30th 1986."

So far as the balance sheet is concerned, on 8th December 1986 Messrs
Greenberg & Jackson, auditors to the Church, wrote the following:

"We have compiled the accompanying balance sheet of the Church of
Scientology of California as of November 30, 1986, and the related statement
of Church operations for the period September 16, 1986 to November 30, 1986,
in accordance with standards established by the American Institute of
Certified Public Accountants.

"A compilation is limited to presenting in the form of financial statements
information that is furnished by management. We have not audited or reviewed
the accompanying financial statements and, accordingly, do not express an
opinion or any other form of assurance on them.

"As is described in Note 5 and 6, the Church has various gain and loss
contingencies. It is not possible at this time to evaluate the possible
effects of such contingencies on its financial position"."

Turning to the Notes referred to in that letter, Note 5 reads as follows:

"Loss Contingencies. The Internal Revenue Service has made assertions that
the Church of Scientology of California owes employment taxes penalties, and
interest of $4,187,529 for the years subsequent to 1975. Also it has
assessed income taxes, penalties, and interest of $8,282,159 for the years
1973 and 1974. Payment of the income tax assessment is contingent on the
result of pending litigation. The Church has pledged the land and building
which secures the Mortgage Receivable and the Certificate of Deposit as
collateral for possible payment of income taxes for 1973 and 1974. It is not
possible at this time to evaluate the likelihood of the Internal Revenue
Service prevailing in its claims.

"Additionally, the Church is the defendant in certain litigation. It is not
possible at this time to evaluate the likelihood of recovery against the
Church in the litigation, nor the potential liability to the Church
resulting from the claims asserted in the litigation."

Note 6 reads:

"Gain Contingencies. The Church is appealing the payment of $2,946,920
income taxes, penalties and interest to the Internal Revenue Service for the
years 1970-1972. It is not possible at this time to evaluate the likelihood
of the Church prevailing in its appeal."

Against that background the value of any undertaking in damages by the
Church must, in my opinion, be conjectural.

Where, then, does the balance of convenience lie? I draw attention to the
following considerations in general terms:

(1) If an injunction is granted and the defendants succeed at the trial,
they are exposed to the risk of losses which, insofar as they can be
quantified at all, may exceed the available assets of the plaintiffs.

In the course of the plaintiffs' reply on this appeal yesterday, it was
suggested that they would give security.

It seems to me there are great difficulties in a case of this kind
involving, as it does, damages of undertain and possibly unquantifiable
amounts, in fixing the amount of any satisfactory security for the
protection of the defendants. I do not think the suggestion of security is
acceptable.

(2) The documents with which we are concerned, with the exception of the
mother's letter, are all compiled from the hand of Mr Hubbard himself, the
founder of the Church. It is not suggested that the documents contain
anything which is untrue or scandalous, or that their content is in any way
misleading.

(3) The photographs are harmless, and it is difficult to imagine that any
significant damage could result from the use of them by the defendants.

It was suggested that the Church would lose what it called "first
publication rights" in respect of those photographs. However, I find it
difficult to accept, from an inspection of those photographs, that any such
loss (if one existed at all) could be other than small. There is, I might
add, no question as to the ability of the defendants in this case to meet
recoverable damages.

(4) It is suggested that the publication of the book in the United Kingdom
might prejudice the Church's prospects of success in its appeal in the
Armstrong litigation in California.

As to that matter, the Armstrong litigation is concerned with a large number
of documents; whereas the present case is concerned only with a few, which I
have already specified.

Further, the court has no up-to-date information regarding the course of the
Californian proceedings, or as to how far the appeal is being actively
pursued. It would appear that by agreement with Mr Armstrong the Church has
already recovered the archival material in his possession.

(5) The plaintiffs do not contend that the publication of the material in
issue in the present case will harm the reputation of either of Mr Hubbard
or the Church. There has been no allegation that the book itself is
defamatory of anybody.

Against those considerations, in effect the plaintiffs' assert:

(1) The Church is not seeking to stop publication of the book in general. It
is merely requiring the excision of references to, or reliance upon, the
diaries and the letters.

But in my judgment the references to the diaries and the letters are an
essential part of the fabric of the book itself. Thus one of the purposes of
the book is to contrast the image of Mr Hubbard's life, as is said to be
portrayed by the Church (and by Mr Hubbard himself) with the reality of the
situation. Thus, for example, in Chapter 1 of the book, Mr Miller examines
the version put forward by the Church of Mr Hubbard's family history and his
life up to the age of 12 or 13. Mr Miller concludes that it is not true that
Mr Hubbard came from a distinguished naval family, or that he was born into
a wealthy family. The mother's letter is used in relation to that latter
question. Mr Miller places reliance on the diaries written by Mr Hubbard
himself between 15 and 17 years of age in order to question accounts of Mr
Hubbard's life during those years. Mr Miller's assertions may be good or
bad, but this is the book which he has written and I do not consider that a
"blue pencil" can be used as a solution to the matter.

(2) It is said that this material was confidential and that the Church can,
and should, protect the privacy of Mr Hubbard, although he is now dead.

The duty of confidentially, if any, must be balanced by a due consideration
for the public interest. See, for example, Lion Laboratories Ltd v Evans &
Ors [1985] 1 QB, 526, [1984] 2 All ER 417.

The Church is an active proselytizing Church with, we are told, several
million members. It is desirable in the public interest that its doctrines
and assertions of fact -- whether in relation to Mr Hubbard or otherwise --
should be exposed to public criticism. Mr Hubbard is dead and, as I have
already mentioned, the material in the disputed documents is mostly written
by Mr Hubbard himself. None of it is said to be untrue or to damage either
the reputation of Mr Hubbard or of the Church itself.

(3) There was a suggestion that the Court should not take any step which
would interfere with decisions of the United States' courts. As to that
matter, the long-standing respect which the courts of this country extend to
the decisions of courts in the United States of America is in no way in
issue.

This case is concerned with the propriety of granting interlocutory relief
in the particular circumstances now existing in relation to this case and
which necessarily were not before the United States courts.

Looking at the whole matter it seems to me, as I think it did to the judge
(although he did not express himself in terms of the balance of convenience)
that the balance of convenience is decisively in favour of refusing an
injunction.

Accordingly, for the reasons which I have given, I would dismiss this
appeal.

SIR GEORGE WALLER

I entirely agree with my Lord's judgment.

If I added anything on any part of the case, I would only be repeating, in
less adequate words, that which has already falled from my Lord.

Appeal dismissed with costs of the appeal and Respondents' Notice to be
taxed forthwith.

Leave to appeal to the House of Lords refused.
 -------------

CHANCERY DIVISION

Church of Scientology of California v Miller & Another

The Independent 10 October 1987, The Times 15 October 1987,
(Transcript:Nunnery)

DATE: 9 October 1987

JUDGE: Vinelott J

A Newman and J Algazy for the Plaintiff; G Lightman QC, M Briggs and P Jong
for the Defendants
Hamida Jafferji; Peter Carter-Ruck & Partners

VINELOTT J

In this action the Church of Scientology seek an interim injunction pending
the trial of an action against a Mr Russell Miller and Penguin Books
Limited. The Church of Scientology, California, is registered under
Californian law as a religious organisation. It has, of course, subsidiary
or associated organisations with similar objects elsewhere, including the
United Kingdom. The subsidiary or associated organisation in the United
Kingdom is a company. It has not been registered as a charity. It should not
therefore be assumed that the plaintiff or its subsidiary or associated
organisations will be recognised in England as established for the
advancement of religion. I shall, nonetheless, for convenience refer to this
group of organisations as "the Church"; I shall, were appropriate, refer to
the plaintiffs alone as "the plaintiffs".

The founder of the Church was the late Mr Ron Hubbard. Mr Russell Miller is
a well known author with a reputation for investigative journalism. He has
written a biography of Mr Hubbard. Penguin Books Limited are, of course, the
intended publishers. Proof copies of the book were available to a limited
circle on 5th August last. The plaintiffs obtained a copy of it. It is not
clear from the evidence precisely how or, more importantly, when they did
so. The intended date for publication is 26th October. The publication date
has been arranged to coincide with the serialisation of excerpts from the
book in successive editions of the Sunday Times. The publishers planned to
send the first print run to booksellers and wholesalers early this week.
Distribution to them cannot be delayed much longer if the intended
publication date is to be adhered to. In turn, much of the impact of the
publication of excerpts in the Sunday Times which is likely to go ahead,
albeit if necessary with some editing whatever the outcome of this
application, will be lost if publication date is delayed beyond 26th
October.

The plaintiffs seek an injunction, pending trial, to restrain the author and
the publisher from distributing the book in its present form. The writ was
issued and notice of an application for an interim injunction was given on
29th September. The hearing commenced on Tuesday of this week and concluded
at 10.45 this morning. In these circumstances and having regard to the
planned publication date and the need for urgent distribution of the first
print run, I have thought it right not only to give judgment without delay
but also to make my judgement as brief as possible in the hope that if my
decision is challenged in the Court of Appeal a transcript can be made
available to it.

Injunctions are sought on three grounds. First, it is said that the
plaintiffs own the copyright in two photographs, one of which appears on the
dustsheet and, indeed, appeared in earlier publicity material put out by
Penguin Books, and the other as an insert in the body of the book. They say
that the publishers would be in breach of this copyright. Secondly, it is
said that the book contains quotations from and information derived from
diaries and journals and letters of a confidential character which were
communicated in confidence to one Gerald Armstrong while an employee of the
plaintiffs, and that the plaintiffs are entitled to protect those documents
and information from publication by a defendant who, whether or not he
acquired them innocently, now knows of the confidence attaching to them.
Thirdly, it is said that the documents in question were obtained by Mr
Miller directly or indirectly in breach of a sealing order made by the
courts of California in litigation to recover the documents from Mr
Armstrong.

The Photographs

I can deal with the photographs very briefly. Mr Miller says that he
obtained the dust cover photograph from a library which supplies newspapers
and publishers with, inter alia, photographs. An executive of that company
says that he attended a photographic session at the Church's college in East
Grinstead when he was handed the publicity brochure which included this
photograph. The plaintiffs say that the photograph he was given was a
different photograph and they have produced a copy of the photograph they
say he was given. It is admitted by the plaintiffs, though the admission was
made at a late stage, that the library is entitled to supply copies of the
photograph it was given in the ordinary course of its business. There are
some, but only minor, differences between the photographs. The one on the
dust jacket is not an exact reproduction of the one in which the plaintiffs
claim copyright; it has been reproduced in a way which increases its
dramatic impact. The photograph admittedly supplied to the library,
similarly reproduced, would be virtually indistinguishable.

The claim that the plaintiffs would be injured by infringement of its
copyright, assuming that it has copyright in the photograph actually
supplied to Mr Miller by the library, and that the library had no authority
to supply that photograph, is simply incredible.

The other photograph is, on its face, a snapshot of a number of people,
including Mr Hubbard, taken on the beach at Curacao. Unlike other
photographs on the same page, it is not a "posed" or official photograph.
The plaintiffs say that it was taken by an official photographer employed by
them. The defendants say that it was taken by another employee, who was not
employed as a photographer, and was a shapshot taken for his own purposes.
They say that it later came into the possession of a lady resident in
California, who supplied ti to Mr Miller. I do not think that it matters
which of these accounts is ultimately found to be correct, if this action is
tried. Even if the plaintiffs have copyright in the photograph, it is no
more than a snapshot, and the use of it in breach of copyright cannot, in my
judgment, possibly harm them. It could, by contrast, gravely impair the
defendant's plans for launching the book if it now has to remove that
inserted photograph.

This is not a case where a defendant has deliberately made use of copyright
material for profit or otherwise, and used it in deliberate disregard of the
owner's rights. In my judgment, the plaintiff is not entitled to any
interlocutory relief in respect of the photographs.

The Documents

The background is shortly this. Mr Armstrong, then a senior employee of the
plaintiffs, was employed to compile, protect and preserve Mr Hubbard's
personal papers and other biographical material. Mr Hubbard was then alive
and it is said that Mr Armstrong was allowed to carry out this task on the
footing that he would hold confidential all documents and information
obtained by him in pursuance of his duties, which documents were to form
part of the archives of the Church. Much of the material collected by Mr
Armstrong was given to him, it is said, after he had promised that it would
be kept confidential. Later, a Mr Garrison was employed to write an official
biography. Mr Armstrong was assigned to be his researcher. Then Mr Armstrong
left the Church. Mr Garrison's engagement was also terminated, though that
was later. Mr Armstrong took with him a substantial amount of what I shall
call "the archival material".

The plaintiff took proceedings in the courts of California to secure the
return of this material and to prevent disclosure of any of the contents. A
temporary restraining order was made on 25th August 1982 requiring Mr
Armstrong to surrender all the archival material to the court. The action
then came before Judge Breckenridge in the Californian Superior Court in May
1984. On 20th June he gave a memorandum of intended decision. Shortly
stated, one defence advanced by Mr Armstrong was that he was entitled to
remove the material and to lodge it with his attorney for his own
protection. He reasonably believed, he said, that possession of this
material would afford him some protection against unlawful harassment (or
worse) by the Church, under practices, in particular the fair game doctrine,
which have been sufficiently diescribed in other decisions of the English
courts, to which I shall later refer.

Judge Breckenridge, while holding that Mr Armstrong had been guilty of
conversion, found on the facts that this defence was amply made out. The
documents he said, were to remain with the court pending a further hearing
of the action. I should at this point cite the decision of the learned judge
as to what was to be done with the documents, in full. He said:

"As to the equitable actions [that is, breach of confidence and constructive
trust], the court finds that neither plaintiff" --

I interpose to say that Mr Hubbard's wife, Mary Sue, was joined as a party
-- 

"has clean hands and at least as at this time is not entitled to the
immediate return of any document or object presently retained by the court
clerk. All exhibits received in evidence or marked for identification,
unless specifically ordered sealed, are matters of public record and should
be available for public inspection or use to the same extent that any such
exhibit would be available in any other law suit; in other words, they are
to be treated as henceforth no differently than similar exhibits in any
other case in Superior Court. Furthermore, the 'inventory list and
description' of materials turned over by Armstrongs's attorney to the court
shall not be considered or deemed to be confidential, private or under seal.

All other documents or objects presently in the possession of the clerk not
marked herein as court exhibits shall be retained by the clerk, subject to
the same orders as presently in effect as to sealing and inspection until
such time as trial court proceedings are concluded as to the severed
cross-complaint."

And then goes on to say when the conclusion of the case is to be taken as
occurring.

I shall return to the outline history of the litigation in a moment. First,
I should say something about the documents, publication of which or of
information derived from which is sought to be prevented in this action. The
particulars in the application cover eight categories of documents; four
were abandoned in the course of the hearing when it became plain that the
Church itself had brought them into a public domain. The remainder can be
categorised under two heads.

Category A

This category comprises documents which became exhibits during the hearing
before Judge Breckenridge. There are two subcategories. The first comprises
diaries kept by Mr Hubbard during the years 1927 to 1929. In 1929 he was 18
years old. The second is a letter written to Mr Hubbard by his mother, also
in 1929. The case for the defendants is that they obtained copies of these
documents from a Mr Atack who in turn obtained them from a photocopying
agency employed by Mr Flynn who was Mr Armstrong's attorney, and that they
were supplied to Mr Armstrong at a time when the order made by Judge
Breckenridge that exhibits should be available to the public was in force.
The plaintiffs say that this is impossible because the order did not remain
in force for a sufficient period for that to be done.

The tangled history of the Californian litigation is shortly this. The
memorandum of intended decision became a decision and an order on 20th July
1984. Until then it was, as its title suggests, an intended decision; the
intention being announced to enable the parties to seek other relief in a
higher court before the order was made. In fact the plaintiff obtained a
temporary stay order from the Court of Appeal on June 25th which was vacated
on 18th July but reinstated on 20th July 1984 by the Supreme Court of
California. That was the very day on which Judge Breckenridge made his
order. No disclosure, it is said, could properly have been made up to or
after 20th July. Then, on the 23rd August, the temporary stay order made by
the Supreme Court was vacated. It was re-entered on 28th August. That gap of
five days has been referred to in argument, as "the first window". Then, on
15th November the temporary stay order was again vacated by the Supreme
Court, but on 21st November an injunction was entered by the Nineth Circuit
Federal Court of Appeals. That is the second window. Then, on 19th December
the trial exhibits, which had been ordered to be unsealed by Judge
Breckenridge, were made available to the public for viewing. However, a
temporary restraining order stopping that was made on 20th December. That is
the third window.

The plaintiffs say that the documents could not properly have escaped
through these windows because no order vacating a stay order by the Court of
Appeal or the Supreme Court would release the documents from the stay order
unless and until the order vacating that stay order had been made an order
of the Superior Court of California -- that is, Judge Breckenridge's court
-- a process which they say, with the support of expert evidence from
Californian attorneys, would take some five to six days. So the window was
never open except for the very short period on 19th or 20th December.

The answer given by the defendants is that although the Supreme Court would
not act on an order vacating a stay order by releasing documents in its
custody until that order had been made an order of the Superior Court, there
was nothing to prevent Mr Flynn, who was the attorney for a party in the
appeal, from releasing copies of exhibits which he had in his possession in
accordance with Judge Breckenridge's original order as soon as the order
vacating the stay order had been made and perfected by the Court of Appeal
or the Supreme Court; a process which clearly would take less time than the
communication of that order to the Superior Court and its entry in the
Superior Court. On that footing the windows were open for a significant
period.

Reliance is placed by the defendants on what is alleged to have been said by
Mr Flynn to the plaintiffs' Californian Attorney in relation to documents
which he had. I do not propose to deal with this evidence in detail; it is
hearsay evidence and, more importantly, too vague to found any conclusion.

I accept that there is an issue whether there was a period during which Mr
Armstrong and Mr Flynn were entitled to release to others copies of exhibits
in the possession of Mr Flynn or, for that matter, in the possession of Mr
Armstrong (if there were any). But the claim that there was never the
faintest chink in the window seems to me flimsy.

Category B

This comprises documents, which were never exhibited, and which, it is said,
were throughout sealed. There are two subcategories. The first is a letter
written by Mr Hubbard to his first wife, Polly. The second comprises three
letters written by Mr Hubbard to one Helen O'Brien in 1953. The defendants
founded an argument on Judge Breckenridge's order. The argument, as I
understand it, is this. It is said that the first part of the order related
to exhibits -- snd there were of course exhibits other than those derived
form archival material -- and declared them to be available for inspection,
save only for certain specified exhibits put in evidence and sealed by
specific orders made in the course of the proceedings. Then it is said that
the next sentence: "The inventory list and description shall not be
considered or deemed to be confidential,' relates to all the archival
material. On that view the remainder of the decision, "all other documents
or objects shall be retained by the clerk, subject to the same order as are
presently in force," apply to other documents put in evidence in the
proceedings, and not the archival material.

That seems to me a strained construction. I would construe the first
paragraph as dealing with exhibits, and the last sentence of that part as
referring to the list of the archival material and not to the archival
material itself.

The next paragraph, "All other documents . . ." then catches the archival
material other than that put in evidence. Any other construction seems to me
to give rise to wholly capricious results.

However, that is not the end of the story. Mr Miller says that he did not in
any event obtain these documents from Mr Armstrong or his attorney, or
anyone connected with them. His evidence is that he obtained the letter to
Polly from a source which he is reluctant to disclose and that he obtained
the documents in the second subcategory from a Mr Ronald Newman. That is all
I need to say about the factual background.

The conclusion I reach is that as regards the first category, the plaintiffs
claim that the defendants could not properly have obtained the documents
under an order which specifically released them into the public domain is
flimsy. There is a triable issue whether the defendants obtained the second
category of documents directly or indirectly from Mr Artmstrong or Mr Flynn
or, as Mr Miller claims, from another source unaffected by any duty of
confidence to the plaintiff. The decision of the judge who hears that issue
may well turn on the view he takes of the credibility of Mr Miller's
evidence.

With that in mind, I turn to the two grounds advanced to restrain
publication or use of these documents and the information contained in them.

Confidentiality

The plaintiffs' case is that Mr Armstrong owed it a duty to keep the
archival material confidential and that the plaintiffs' correlative right to
prevent disclosure by Mr Armstrong is binding on any person who comes into
possession of the archival material directly or indirectly through a breach
of that duty by Mr Armstrong. The first difficulty which confronts the
plaintiffs is that it is well settled that the only person who can complain
of a breach of confidence is the person to whom the duty of confidence is
owed (see Fraser v Evans [1969] 1 QB 349 [1969] 1 All ER 8). The plaintiffs
cannot rely on the duty of confidence, if any, in respect of the diaries
which was owed to Mr Hubbard. Similarly, the plaintiffs cannot rely on the
duty of confidence, if any, owed to the writers or recipients of the letters
(the letter to Mr Hubbard from his mother, or the letters written by Mr
Hubbard in category B). Prima facie the writer or the recipient of each of
the letters is the only person who could assert confidentiality.

Mr Newman had two answers to this difficulty. The first was that the
material in respect of which a duty of confidence was owed by Mr Hubbard was
entrusted at his direction or with his consent to a Church of which he was
the founder and which is in substance the living embodiment of his beliefs
and teaching. In the unusual circumstances of this case, it is said, the
Church can claim to enforce the duty of confidence owed to Mr Hubbard in his
place. The second was that apart from any duty of confidence owed to Mr
Hubbard, Mr Armstrong owed a duty to the Church as his employer on whose
behalf he collected material to be stored in the archives. In considering
these submissions it is, I think, important to bear in mind that the duty of
confidentiality owed to Mr Hubbard and the duty of confidentiality owed by
Mr Armstrong to the plaintiffs as his employer are separate and distinct.
Prima facie the maker of a diary intends the contents to be kept
confidential, and if he entrusts it to another a duty of confidentiality
arises.

An employee may also in the course of his employment come into possession of
material (for instance a list of customers and their requirements) which the
employer has a legitimate interest in keeping confidential. It does not
follow from the fact that Mr Hubbard had or may have had an interest in
keeping confidential the contents of his diary that Mr Armstrong owed a
similar duty to the plaintiffs. The plaintiffs must be able to show that
there is something in the nature of the material gathered together by Mr
Armstrong or in the terms of his employment which give rise to a duty not to
divulge that material to anyone outside the Church. It can hardly be said
that that duty extended to every part of the vast mass of material collected
by Mr Armstrong form a wide variety of sources -- in part, at least, for the
purpose of preserving it for Mr Hubbard's biographer.

Mr Newman's answer to this difficulty was that in the circumstances of this
case the Church can be regarded as standing in Mr Hubbard's shoes and can
avail itself of the same rights of confidentiality which he had.
Alternatively, it is said, the material gathered together by Mr Armstrong
dealing, as it does, with the development of Mr Hubbard's personality and
with the discoveries or revelation which lead to the foundation of the
Church is part of the arcanum of the Church and should not be divulged to
those outside the Church. These are novel arguments and seem to me to invite
an extension of law which the court should be cautious of making in
interlocutory proceedings. Moreover the argument leads Mr Newman into a
further difficulty.

Public interest

The affairs, the doctrines and activities of the Church are a matter of
legitimate public interest and concern. An official investigation into these
matters was carried out by the late Sir John Foster many years ago and
following his report entry by alien scientologists into the United Kingdom
was barred. I should add that this bar was lifted in 1980. The doctrines and
activities of the Church have been considered by the courts in a number of
cases, in particular Re B & G Minors [1985] FLR 134 where Latey J deprived a
father and stepmother of the custody of infants which he would otherwise
have given them on the grounds that they were members of the English branch
of the Church. That decision was affirmed by the Court of Appeal. Of course
the Church was not a party to those proceedings, but that point was not
overlooked and indeed was dealt with specifically by Dunn LJ, who said at p
502:

"In this case it was in the interests of the children that the judge should
not only hear evidence about scientology but should make definitive findings
upon it, otherwise he could not assess the risk to the children if they
continued to be brought into contact with the father. In any event, no
application was made to the judge for the Church to be joined as a party and
there has been no appeal against the refusal of the Registrar to allow an
application for the Church to be joined in this court."

In the Court of Appeal the decision of the trial judge was attacked on the
ground that he had made observations critical of Mr Hubbard and that these
were matters which ought not to have been taken into account. As to that
Dunn LJ said, also on p 502:

It seems to me, with respect, that it was unnecessary for the judge to have
gone into the detail in which he did but when one is considering a set of
beliefs it is, I should have thought, relevant to know the sort of person
who is the original proponent of those beliefs."

Purchas LJ similarly observed on p 508:

"The behaviour of Mr Hubbard was an integral part of the whole context of
mainline scientology, an examination of which the judge had a duty to make
and which he was entitled to announce as part of the background
justification for his findings."

As I have said, the doctrines and activities of the Church are matters of
legitimate public concern. Mr Hubbard is, as Mr Newman himself forcefully
expressed it, the revered founder of the Church. He is believed by members
of the Church to be someone whose appearance on this earth was an event of
cosmic significance. Mr Hubbard'd life history and the story of the
psychological discoveries made by him and of his revelations are matters in
respect of which large claims are made in Mr Hubbard's writings and by the
Church. In these circumstances the life of Mr Hubbard, his relationship to
the Church and the circumstances in which the Church was founded are also
matters in which the public has a legitimate interest. Of course that does
not mean that everyone has carte blanche to disregard every bond of
confidence affecting any matter communicated to them and concerning Mr
Hubbard. The public interest in maintaining the bonds of confidentiality
must be weighed against the legitimate public interest in the affairs of the
Church and its history and the history of its founder.

However, I have read Mr Miller's biography, or the larger part of it, and it
is to my mind clear that the public interest in the affairs of the Church
and in the life of its fuonder far outweigh any duty of confidence that
could possibly be owed to Mr Hubbard or the Church. The diaries covering the
years when Mr Hubbard was between 16 and 18 years old contain direct
contemporaneous evidence of his activities and thoughts at the time. They
are essential if his early development and achievements for which, as I have
said, large claims are made by the Church, are to be properly evaluated. The
letter to his mother is a letter of the kind that an affectionate and
responsible parent would write to a son starting at a new school. It is of
importance in understanding his relationship to his parents. It is evident
from reading the letter to his wife that it was written at a time which was
critical in the development of ideas and beliefs that later became the
doctrines of the Church. The letters to Helen O'Brien similarly relate to Mr
Hubbard's relationship to someone who had given financial backing to an
earlier movement called Dianetics founded by Mr Hubbard, which later evolved
or was subsumed into the Church. Mr Miller interviewed Helen O'Brien or had
telephone conversations with her and the letters form a natural part of the
narrative of his account.

It is in my judgment plain beyond question that the legitimate public
interest in Mr Hubbard as the founder of the Church in the circumstances in
which it was founded and in motives which led to its foundation far outweigh
any duty of confidence that could conceivably attach to any of the documents
in issue, even assuming -- contrary to my view -- that Mr Armstrong owed the
same duty of confidence to the Chruch which he owed or would have owed to Mr
Hubbard if living.

Shortly stated, the Church is an active proselytising church and in its
efforts to obtain converts the personality, qualifications, history and
intellectual and moral development of its founder are matters on which the
Church itself relies. The public equally has an interest in evaluating the
image of Mr Hubbard so projected. The Church having collected this material
cannot claim a monopoly in it and release to the public only that
information which it chooses to make available.

The order of the Californian court

I can deal with this point shortly. Mr Newman referred me to Dicey and
Morris and the well-settled principle that the judgment of a foreign court
may be enforced if and to the extent to which it creates an obligation and
is recognised by English courts as made by a court having jurisdiction and
is not tainted by fraud and if the enforcement is not contrary to English
public policy or in breach of the rules of natural justice.

I do not find it necessary to examine the foundations or limits of this
doctrine or the circumstances in which the English courts will grant
injunctive relief. As I understand the postion, while the Superior Court has
decided that the archival material was the property of the plaintiffs and
that Mr Armstrong was guilty of conversion, it has not finally decided that
in respect of all its archival material Mr Armstrong owes a duty to the
plaintiffs to keep the archival material and all information derived from it
confidential which is enforceable against him and all other persons who have
come into possession of copies of any of this archival material and of
information derived from it. The sealing orders and all the orders of the
Superior Court were interlocutory and cannot be relied on as founding such a
duty. Moreover, in so far as considerations of comity have to be considered,
they must be weighed against -- and in my judgment are plainly outweighed by
-- the public interest to which I have already referred.

Delay

The plaintiffs became aware of Penguin Book's intention to publish a
biography of Mr Hubbard written by Mr Miller at latest in May of this year.
They had been aware that Mr Miller was writing a biography and that he had
been in contact with Mr Armstrong for some time. They were told by Mr
Armstrong in the Summer of 1986 that Mr Miller might well have some archival
material. Nothing was done to obtain any undertaking by Mr Miller that this
material would not be used. The proof copies were available and were
circulated in confidence to persons concerned by Penguin Books on August
5th. The plaintiff obtained a copy of the proofs and exhibited it -- wrongly
described as a manuscript -- to the affidavit in support of the application.
No explanation has been given as to how or more importantly when they
obtained a copy of the proofs. This application was made on 29th September,
by which time the plaintiffs must have known that the printing of the first
run was complete and that the book was ready for distribution to wholesalers
and retailers. The application was thus made at a time, whether calculated
or not, when it would give rise to the greatest possible damage and
inconvenience to Penguin Books.

I the absence of any evidence as to when the plaintiffs obtained a copy of
the proofs and of the reasons for delaying thereafter in instituting
proceedings, if there was delay, the apparent delay is, in my judgment, in
itself sufficient to bar any claim for interlocutor relief.

Mr Newman submitted that the plaintiffs could not be critised for delay,
which could not on any view exceed the two months since 5th August, bearing
in mind the huge task of relating the material in the book to the thousands
of documents in the archival material. The short answer to that submission
is that it is plain on a cursory reading of the book that substantial use is
made of Mr Hubbard's diaries which they must have known were part of the
archival material.

Clean hands

Mr Lightman submitted that the plaintiffs do not come to this court with
clean hands. He relied upon the fact that the plaintiffs obtained a copy of
the proof, siad to have been circulated within a narrow circle and which was
plainly the subject of confidence, in circumstances which ae unexplained. He
also relied upon the doctrines of the Church which have been frequently
commented on, in particular in Hubbard v Vosper [1972] 2 QB 84, [1972] 1 All
ER 1023.

On this last point Mr Newman submitted that unlike the Vosper case no link
exists between the doctrines and conduct complained of and the matters in
issue in this action. He reminded me of the often cited passage in the
judgment of Lord Chief Baron Eyre in Derry v Winchelsea 1 Cox 318 that:

"The priciple that a litigant must come to court with clean hands does not
mean a general depravity, it must have an immediate and necessary relation
to the equity sued for. It must be a depravity in a legal as well as moral
sense."

I do not propose to go into this aspect of the cse, save only to observe
that one statement of policy to be found in the writings of the Chruch is in
substance that litigation may be resorted to in order to stifle criticism.
This litigation to my mind precisely answers the description of oppressive
litigation, that is, litigation (which the authors equally clearly had in
mind) which is not bona fide lauched to protect any legitimate interest of
the church in preserving confidentiality in information contained in Mr
Miller's biography.

For these reasons I have reached the conclusion that this application is
both mischievous and misconceived and must be dismissed and in my judgment
dismissed with costs to be taxed and paid forthwith.

Judgment Accordingly