I turn then to the other factors relied on by the Sunday Telegraph. The first is s.12 Human Rights Act 1998. It provides, so far as relevant:
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
[(2) and (3)]
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
The relief sought, namely injunctions and damages or an account of profits, would affect the exercise of the Convention right to freedom of expression. Similarly the proceedings relate to material, the articles of 28th November 1999, or conduct connected with it of a journalistic nature. Accordingly the whole of subsection (4) applies.
It was submitted that the phrase "must have particular regard to" indicates that the court should place extra weight on the matters to which the subsection refers. I do not so read it. Rather it points to the need for the court to consider the matters to which the subsection refers specifically and separately from other relevant considerations. On the facts of this case I do not think that it makes any difference how the phrase is interpreted.
There is no doubt that the information contained in the minute, so far as revealed in the articles, has become available to the public. It may be that its publication was in the public interest. I make no finding either way on that point lest it be thought to prejudice any subsequent trial on the breach of confidence issue. But the injunction to restrain breach of copyright will not inhibit the Sunday Telegraph from using the information. It will and should restrain the further copying of the Minute. Insofar as the injunction will restrain the copying of the unpublished parts of the Minute I am unable to form a view as to whether that material is likely to become public knowledge nor whether it would be in the public interest that it should because the unredacted Minute was not put in evidence by either party. Accordingly s.12 does not provide any reason to withhold any of the relief to which the Claimant would be entitled if summary judgment were given in his favour.
Another factor relied on is that the claim based on breach of confidence is to proceed to trial in the normal way. It was suggested that this was a compelling reason why the copyright claim should go to trial too. It was submitted that it might prejudice the defence of the Sunday Telegraph to the breach of confidence claim if it was already subject to judgment on the copyright claim. I do not think that this provides any reason, compelling or otherwise, to withhold summary judgment on the copyright claim. Such a judgment would prevent further copying and provide redress for that which has already taken place. Subject to the breach of confidence claim the Sunday Telegraph is entitled to use the information contained in the Minute provided that it does not copy it or any substantial part of it.
Finally it was submitted that it was inconvenient to give summary judgment on the copyright claim at this stage because it might give rise to increased costs and the danger of inconsistent judgments if the same person did not hear the breach of confidence claim and the enquiry directed by paragraph 6(A)(2) of the judgment on the copyright claim now sought, namely, whether the Claimant was entitled to what if any, additional damages pursuant to s.97(2) CDPA. I was referred to Tennant v Associated Newspaper Group Ltd [1979] FSR 298 and Conde Nast Publication Ltd v MGN Ltd [1998] FSR 427 for statements as to the normal practice to be followed. But if the Claimant is entitled to summary judgment on his copyright claim because there is no defence with any reasonable prospect of success then he should not be denied it on grounds of convenience said to arise from the practice of the court. In any event I can see no problem; there would be nothing to prevent the judge trying the breach of confidence claim hearing this enquiry as well and on the same evidence. If that is the most convenient course then directions to that effect can be given. The need to deal with the copyright enquiry on a cost and time effective way is not a reason, compelling or otherwise, why the copyright claim should go to trial.
For all these reasons, in my judgment, there is no defence to the copyright claim with any reasonable prospect of success and no other compelling reason why the copyright claim should go to trial. Subject to any argument as to the form of relief sought I will make an order in the terms of the minute submitted with this application.