Model Naomi’s casebook episode 19

Topic:             Confidential information

Who:               Naomi Campbell and Vanessa Frisbee

Where:            The Court of Appeal, London

When:             October 2002

What happened:

Vanessa Frisbee was retained by supermodel Naomi Campbell.  There was no written contract but there was a separate written confidentiality agreement.  In this, Ms Frisbee agreed not to disclose any information about Ms Campbell to the media without the model's express written consent.  After just four months, Naomi and Vanessa's relationship broke down and they parted company amidst allegations by Vanessa that Naomi had assaulted her.  Shortly after this, Vanessa sold details of Naomi's personal life, including her recent affair with actor Joseph Fiennes, to the News of the World for £25,000.  Naomi took Vanessa to Court, suing for damages for breach of confidence.  Vanessa defended on the basis that by her conduct, Naomi had repudiated their contract.  The effect of this, she argued, was to release her from her obligations of confidentiality. 

It was accepted that this was not an employer/employee relationship, but one of client and service provider.  Naomi applied for "summary judgement".  This is a procedure whereby the one or two year-long process of litigating a matter through to trial can be short-circuited.  This is on the basis that the claim is so open and shut that there is no arguable defence and judgement should be given in favour of the claimant straight away.  At first instance, the judge gave Naomi her summary judgement.  He said he could conceive of no basis on which repudiation of a contract between a client and its service provider could release the "innocent" party from obligations of confidentiality.

Vanessa then appealed (no doubt with financial assistance from the News of World) and the Court of Appeal (reluctantly) took a different view.  They said that the issue of whether repudiation of a client/service provider contract entitled the innocent party to disregard confidentiality obligations was unclear.  This meant that it was not a suitable case for summary judgement and the arguments would have to have gone into in much more detail through the full litigation process.  The appeal judges did warn, however, that the cost, in legal fees, of establishing what "may provide a valuable addition to the developing jurisprudence on the right of privacy" was likely to be disproportionate to what was at stake in terms of the damages which Naomi might recover, given that these could almost by definition be no more than £25,000. 

Why this matters:

A client and its marketing services provider share much in the way of confidential information during their relationship.  This process begins in many cases even before any contract is signed, when in circumstances which are normally implicitly confidential, the pitching agency shares creative proposals with the prospective client.  Even without an express written agreement as to confidentiality, the chances are that, as in the Campbell/Frisbee case, a Court would regard both client and service provider as obliged to keep the other party's confidential information under wraps.  If it were to be the case that repudiation of the marketing services contract entitled the innocent party to either disclose confidential information or use it without the repudiating party's consent, this would be an important point to consider before either agency or client contemplated action which was arguably contrary to its contract.  This could occur, for instance, when a client decided to terminate summarily its relationship with its agency, even though either an express term of its contract or an implied term would otherwise have obliged it to give a period of notice.  So far in her highly litigious career, Ms Campbell has not shown any particular propensity to settling.  Those that would like to see a clarification of the main point in issue in this matter will hope that this trend continues!