(C) ATTORNEY-GENERAL V BLAKE: THE NEW APPROACH

Despite the general principle against the award of gain-based remedies for breach of contract, the House of Lords in Attorney-General v Blake³⁷ recognized that restitutionary remedies can be available where the defendant has breached a contract, but only in the most exceptional circumstances. Attorney-General v Blake involved a claim by the British government to the royalties made by Blake in respect of his autobiography which was published in breach of contract. George Blake had been a member of the British Secret Intelligence Service, but he was also an agent of the Soviet Union. He was consequently convicted of unlawfully communicating information to the Soviets, but he escaped from prison to Moscow where he wrote his autobiography, No Other Choice. In this book he disclosed information about the Secret Service. This constituted a breach of section 1 of the Official Secrets Acts 1911 and 1920, because Blake had disclosed official information without lawful authority. It also constituted a breach of the contract which he had signed on joining the Service, by virtue of which he had agreed not to divulge any official information he obtained as a result of his employment. The book was published in the United Kingdom without the permission of the Crown. The Attorney-General sued, on behalf of the Crown, to recover all the sums which had been received or were receivable by the publisher. Since the breach of contract did not involve interference with the Crown’s property rights, the Wrotham Park principle was not applicable. The issue then was whether it was appropriate to develop another principle to require Blake to account for all profits made as a result of the breach of contract.