INSIGHTS: Breach of confidence: royal affairs

February 22, 2017


Borgese [2017] NSWSC 92:

What I love about my work as a lawyer is that every case is different. With each case I prepare, I invariably find something of interest and I learn from the experience. Last week, I had the pleasure of successfully defending a professional negligence case against a solicitor in the Supreme Court of New South Wales.

On day one, the plaintiff sought leave to amend the Statement of Claim to include an equitable cause of action for breach of fiduciary duty. Justice Adams refused to grant leave: Borgese [2017] NSWSC 79. At the 11th hour, the plaintiff again sought leave to further amend his pleading to include an equitable cause of action based on breach of confidence.

The plaintiff’s counsel’s foray into the law relating to breach of confidence uncovered some delightful cases traversing cases over a wide array of subjects from patented information, advice given to shareholders and government and marital secrets.  In order to assert that there has been a breach of confidential information, it is essential to identify with precision the confidential information the subject of the action. Justice McDougall in LGS v Barbagallo [2012] NSWSC 1099 set out the relevant principles referring to a judgment by Justice Gummow in Corrs Pavey Whiting & Byrne v Collection of Customs (Vic)(1987) 14 FCR 434; [1987] FCA 266 at 443.

Justice Bryson in Mancini v Mancini [1999] NSWSC 800 emphasised that “without specificity a claim to protection cannot be defended or decided on any fair procedural basis”.

Justice Adams dismissed the plaintiff’s application to amend on the basis that the proposed amended pleading:

  1. did not adequately describe the information alleged to be confidential;
  2. did not disclose how the information had the necessary quality of confidentiality
  3. did not identify the circumstances in which the information said to be confidential came into existence; and
  4. did not set out the alleged misuse of the material.

In addition her Honour noted: “The duty of confidence prohibits both disclosure and misuse… While the duty of loyalty prevents a solicitor from acting against… the interests of his or her client during the life of a retainer, possession of confidential information with respect to a former client will not necessarily require that a solicitor refrain from acting against a client…”

An item of particular interest was the case of The Duke of Argyll v The Duchess of Argyll [1967] CH 302, not so much for the principles it propounds as to the confidential nature of marital communications, but for the background to the case.

The Duchess of Argyll was a British socialite best remembered for her extraordinary beauty and her sexual appetite. The Duchess was born in 1912 as Margaret Whigham, the daughter of a Scottish millionaire. Margaret spent her early years in New York.  The story goes that in 1928, David Niven and 15 year old Margaret had a dalliance during a holiday on the Isle of White.  Margaret was subsequently taken to a London nursing home for a secret termination of pregnancy.

In 1931 Margaret was presented at Court in London as debutante of the year. Margaret went on to enjoy a life of glamour and extravagance. Her first husband, Charles Sweeny, was an American amateur golfer from a wealthy family from Pennsylvania. Cole Porter included Mrs Sweeny in the lyrics of his hit song “You’re The Top”: “You’re the nimble tread of Fred Astaire/You’re Mussolini/You’re Mrs Sweeny/You’re Camembert”.

In 1943, Margaret fell down a lift shaft in London and almost died. As a result, Margaret sustained nerve damage resulting in the loss of sense of taste and smell and become sexually voracious.  After the end of her first marriage, Margaret enjoyed several high profile romances with wealthy American men.

In 1951, Margaret became the third wife of Mr Ian Douglas Campbell, the 11th Duke of Argyll. Within a few years, the Duke suspected that his wife was being unfaithful. The Duke employed a locksmith to break into a cupboard at their Mayfair apartment and obtain Polaroid photographs of the Duchess nude, save for her signature 3 strand pearl necklace. There were also photographs of the Duchess engaged in sexual acts which Lord Denning later described as “disgusting sexual activities”. The Duchess never revealed the identity of the man in the Polaroid photo although, there was speculation that he was a high profile British politician. The Duke sued for divorce as a result of the Duchess’s nymphomania, citing that his wife had no less than 88 lovers during their marriage.

The case of The Duchess of Argyll v The Duke of Argyll & anor [1965]1AllE.R.611 came about after the divorce proceedings when the Duchess sought an injunction to prevent her former husband and also an editor and a publisher from publishing confidential information communicated between the Duke and Duchess during their marriage. The Court upheld the sanctity of the confidential nature of the communication.

The story of the life of the Duchess of Argyll is fascinating. Jump onto Google and see what you can find. I found an account by Mr Michael Thornton of his encounter with the Duchess at the Duke of Argyll’s ancestral home, Inveraray Castle. Many would know this as the fictional Duneagle Castle where the Earl of Grantham and his family spent their highland holidays in the TV series Downton Abbey. Mr Thornton recalls seeing the Duchess in the street in 1958 and being impressed by her “immaculate chestnut hair, flawless magnolia skin and bewitching green eyes”. The Duchess then invited him to the castle for a drink. He goes on to explain that Her Grace showed him to a room dominated by a pink bath resembling a giant sea shell. Just as he was about to turn on the tap, the Duchess entered wearing no clothes… and the story goes on!

Who would have thought that a professional negligence case arising from a family dispute over allegedly Mutual Wills and family fruit farms in the Riverina would have taken me to the life and times of the Duchess of Argyll (pictured below)!


Contact Consultant Catherine Osborne for professional negligence advice.