Monday, August 18, 2008

Sex, Drugs & Aristocrats

I was intending to do some catching up with a review of blogs but having got as far as reading The Dirty Duchess a post about the Duke and Duchess of Argyll's divorce in 1963 by John Bolch of Family Lore I was reminded of the other Argyll case, Argyll v Argyll [1967] Ch. 302. This was a case when the same Duke of Argyll was prevented from publishing information about his former wife’s private affairs and personal habits. The injunction was based on the confidential relationship which exists between married couples.

The Duchess had questioned her stepson’s legitimacy and in 1959 the Duke's ex-wife and the heir sued. The Duke was keen to suppress rumours, the Duchess denied she had spread any, and the injunction was granted by consent. Then the Duke sought divorce for adultery and the Duchess cross-petitioned alleging he was having an affair with her step-mother. Her step-mother successfully sued.The Duchess then sought prohibition of the publication of newspaper articles by the Duke on the basis that confidence between spouses during marriage should be protected by the court.

Submitted by the Duke was prohibition ought not to be granted, first, on the ground that she herself had broken the mutual obligation of confidence between herself and her husband by some articles by her published in the ‘Sunday Mirror’ and secondly, by her attitude to the sanctity of marriage as set out in Lord Wheatley’s judgment in the divorce proceedings. In the Judge's view by far the most serious complaint about anything in the Duchess' articles was a statement that her husband had been taking purple hearts.

Despite her infidelities during the marriage the Chancery judge refuted the argument that the Duchess had forsaken any right to marital confidence. The marriage in question was his third and the Duke had since married his fourth wife. “Is the attitude of the duke to his former marriages to be taken into consideration, or is it to be assumed that he travelled the road to Damascus before each marriage?” asked the Judge. Also according to his biography, the Duke did have an affair with the Duchess’s step-mother after the divorce. During the case Ungoed-Thomas J referred back to Prince Albert v Strange to prove that rights in information could exist without a preceding contract or physical property and Emperor of Austria v Day and Kossuth (1861).

Ungoed-Thomas J found that, if the information could be regarded as confidential, and there was no counter-balancing public policy exception, protection should be given.


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