Can J.K. Rowling sue for breach of confidentiality?

According to news reports, it was a breach of confidence by a lawyer which led to JK Rowling being identified as the real author of a thriller by “Robert Galbraith”.  She is also reported to not be happy about this.

Assuming those reports are correct (and I will not mention the law firm or the lawyer in case they reports are not correct) then it raises an interesting legal question.

What would Rowling’s legal remedy be for such a breach?

In this instance, the breach has not obviously resulted in Rowling suffering any loss or damage.  Indeed, sales of the book have increased substantially and so she has profited from the unauthorised disclosure.

Usually in English law, one cannot sue unless any loss or damage has been caused by the wrongful act.

There are exceptions: an injunction can sometimes be obtained to prevent a threatened breach or to prevent further breaches – but in this area the law does not act in vain.  A court will not (or should not) grant an ineffectual injunction.

(Strictly speaking, confidentiality is “equity” and not “common law” and so a money remedy could also be available for an “account of profits” – the money which someone makes out of their wrongdoing.  But this would not help Rowling either.  The alleged wrongdoer here has not made any profit.)

So the English law of confidentiality is unlikely to offer Rowling a legal remedy for this seeming breach of a legal obligation.  Indeed, when someone breaches a legal obligation to you, and causes you a profit, then in general the law of England hardly helps you at all.

There is no doubt that it the allegations are well-founded then there may be professional conduct point to be answered – and it is times like this that it is important that law is a regulated profession, for certain legal breaches do not have practical legal remedies.

All this said, Rowling has at her disposal other non-legal remedies.

She can take her business elsewhere.

And, given how she used her unpleasant experiences with the tabloid journalists to create “Rita Skeeter”, one can only wonder how she will portray her next lawyer…

(Addendum 19 July – some excellent comments below, and see also Richard Moorhead’s post “Harry Potter and the Breach of Confidentiality” for consideration of this from the regulatory perspective.)

(Second Addendum 19 July – Hugh Tomlinson QC’s comment below of 12:12 on 19 July appears to nail the issue – yes, the breach would be actionable.)Comments are welcome and are pre-moderated.No purely anonymous comments will be published; always use some name for ease of reference by other commenters.

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