The "bad law" made by the Argyll v Argyll marital confidence case

The notorious Argyll divorce was in 1963, the litigants are dead, but Michael Thornton faces “legal threats” against his forthcoming book, Argyll v Argyll. These come, he alleges, from “the infamous ‘headless man’”, unidentified these 36 years.1  For those who feel a headless man should be easy to spot: suffice to say he featured from the neck down in two Polaroids with the pearls-clad duchess, and the sobriquet was otherwise strikingly inapt.

In his petition for divorce the duke lodged these and a list of her 88 supposed paramours, including two Cabinet Ministers, three Hollywood stars and three royals. Speculation has since raged over whose face was lopped out of the photos, although presumably the Earl of Snowdon and Lord Lichfield are in the clear. Now Thornton plans to name and shame, and uneasy lies the Head: “I get lawyer’s letter every year from him,” says the author.2

This is the Flannan Isle of prurience; not since Mary, Queen of Scots has the absence of a head provoked such controversy in these parts. More interesting is how the secret was kept so long. (One might think that the duchess had just forgotten, but apparently not.) it is a fine example of extra-marital confidence from the woman who brought us the heresy of marital confidence.

The Argyll v Argyll of Thornton’s eponymous book is, presumably, the Scottish divorce. But there is another Argyll v Argyll, decided in Chancery,3  which deals with breach of marital confidence. It is relegated, unread, to footnotes in media law textbooks, and cited authoritatively as an example of the doctrine which in fact it created.

This Argyll v Argyll is little read, only partly because it lacks the sex and drugs and Highland balls element of its namesake. It is also difficult to read. First, it narrates without explanation the labyrinth of litigation in which the duchess was embroiled. The court was perhaps reluctant to spread the details, given that the issue was privacy. There were also statutory reporting restrictions and confidentiality agreements. Yet nothing dates quicker than a scandal, and:

“In May 1959, the Duke’s second wife, who had remarried and become Mrs Timpson, and her son by the Duke…commenced an action against the Plaintiff…By consent an injunction against her was granted in Chambers…In September 1959, Mrs Timpson started committal proceedings against the Plaintiff for alleged breach of the injunction…On December 21, 1595, the committal proceedings were heard by Paull, J…[who] gave directions in open court against publication…In October 1960, the Plaintiff files a cross-petition in the divorce…In June 1962, the Plaintiff’s step-mother, Mrs Whigham, commences an action against the Plaintiff…claiming damages for conspiracy, malicious prosecution, libel and injurious falsehood…”4  is apt to have the modern reader murmuring “Her step-mother?” and confusedly re-reading the whole.

Apparently, the duchess had questioned her stepson’s legitimacy. The ex-wife and the heir sued. The duke was keen to quash rumours, the duchess denied she had spread any, and the injunction was granted peaceably, but did not long silence the duchess. The duke sought a divorce. The duchess cross-petitioned alleging he was having an affair with her step-mother. Her step-mother sued and got £25,000.

The duchess then sought an injunction against publication of newspaper articles by the duke on the basis that confidence between spouses during marriage should be protected by the court.

The  Chancery Judge, Ungoed-Thomas J, started by dealing with the fact that marital confidences could be disclosed in court without the consent of both parties. In Rumping v DPP,5  the House of Lords had expressly rejected an argument to the contrary founded on dicta as to public policy in the old common law. Ungoed-Thomas distinguished this as applying only court actions. He then converted the unsuccessful public policy arguments in Rumping into an argument in favour of marital confidence in the publication context.

His assumption is that the court-driven pursuit of truth and justice trumps the public policy favouring confidentiality and that no such factor operates in relation to tabloid journalism. However, no-one stands to face imprisonment or damages before the court of public opinion. One might prefer an obscure small fine to tabloid opprobrium; but the distinction wants scrutiny. Journalism itself has a role to play in detecting crime and other social evils. In theory, an ex-spouse who exposed wrong-doing would have a defence that there is “no confidence in iniquity”. Yet Bunn v BBC6 held that an incriminating statement to the police about the Maxwell frauds did attract protection as being confidential, notwithstanding that the plaintiff had not been prosecuted and that the programme’s subject, the SFO’s efficiency, was a matter of legitimate concern.

Ungoed-Thomas took the approach that, if the information could be regarded as confidential, and there was no counter-balancing public policy exception, protection should be given. That, standing the Human Rights Act 1998, will no longer do. Freedom of expression itself will be a highly significant policy consideration. Further, marital confidences raise harder issues than other types of confidence, where privacy, commercial or professional policy considerations may be invoked to counter-balance freedom of speech. The range, longevity and presumed equality – above all, the element of fusion (“duo animae in una carne” per Coke) – in marital relationships differentiates them from that of, say, doctor and patient. In fairness, Ungoed-Thomas did not impose a blanket ban. Freedom of speech apart, that created profound definitional problems.

In the Argylls’ 12-year marriage – eight, from wedding to divorce petition – they discussed, said the Duchess:

“…our attitudes,…feelings,…hopes, aspirations and foibles,…past lives and previous marriages,…business and private affairs…Apart form explicit discussion, we naturally discovered many things about each other which, but for our close relationship, we would not have done…on the implicit understanding that they were our secrets…”7

Cheap as it is to observe that many were privy to her Grace’s foibles, she concedes it when she classifies the parties’ “previous marriages” as a confidence of their then current marriage. One would have thought that such topics, if confidential at all, would be confidential as between the parties to the dissolved marriages. This highlights the inextricability of social relationships, especially among the Argylls. Ungoed-Thomas caustically rebutted the argument that the faithless duchess had forsaken any right to marital confidence: “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?”8 The marriage in question was his third, nor was Margaret, so to speak, his last duchess.9 The litigants clocked up five divorcees between them – how similar to the home life of our own dear Queen – and the duke, according to a previous biography, did have an affair with the duchess’s step-mother, albeit after the divorce. Ungoed-Thomas went back to Prince Albert v Strange10 to prove that rights in information could exist without a preceding contract or physical property; to our generation an uncontroversial thesis. The difficulty is, rather, who owns the rights in the narrative of a jointly-lived life.

Because of the intimacy, unity, uniqueness and place in the social fabric that made Ungoed-Thomas anxious to protect marriage, it is a practical impossibility to pick apart retrospectively, who said what to whom, or to whom the confidence is owed.11 It is comparatively easy to say of priest/confessor or employer/employee who brings what information to the relationship; not of the fluent, informal and daily exchanges of cohabitation. It would be coherent to theorise that the confidence belongs to the marriage. If so, this notional “marriage” entity puts a gag on both parties which outlasts the relationship itself, like a restrictive covenant. The “how” of disentangling the confidences is difficult enough; the question then becomes “why?”.

Ungoed-Thomas J averred:

“There could hardly be anything more intimate or confidential than…the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it…To express it is superfluous; it is clear to the least intelligent…”12

He quotes from Lord Radcliffe’s dissent in Rumping, which quoted from Monroe v Twistleton13:

“Lord Alvaney, CJ, said of a divorced wife who was called to prove a contract made during the marriage: ‘To prove any fact arising after the divorce this lady is a competent witness but not [before]…She was at that time bound to secrecy. What she did might be in consequence of the trust and confidence reposed in her…and miserable indeed would the condition of a husband be if, when a woman is divorced from him, perhaps for her own misconduct, all the confidences of his life, entrusted to her when the most perfect and unbounded confidence existed between them, should be divulged in court of justice. If she might be a witness in civil proceeding, she might equally be so in a criminal prosecution; and it shall never be endured that the confidence which the law has created while the parties remained in the most intimate of all relations, shall be broken whenever, by the misconduct of one party (for misconduct alone can have that effect) the relation has been dissolved’…The reason of rejection could not have been a concern to avoid strain or embarrassment in any existing marital relation, for that relation had been determined by divorce. [It] could only have been that there was a sanctity in marital confidences themselves which made them an inadmissible subject of evidence in legal proceedings…I infer from this that the court’s concern was that no marriage relation, while it subsisted, should be infected by the fear or suspicion that things said only by reason of the special confidence of that relation might late become material of legal evidence affecting the speaker.”14

The most anachronistic element of the Monroe quotation is that one party is held responsible for divorce. In England, divorce was then (1802) available only by Act of Parliament and was commensurately rare, dramatic and rancorous. Alvaney’s dictum is not public policy, but comparative justice. Before 1851 in England at common law one spouse could almost never give evidence against the other. The Scottish equivalent was “nothing herein contained… shall in any proceeding render any husband competent or compellable to give against his wife evidence of any matter communicated by her to him during the marriage”.15 That a wronged husband should be, as it were, stitched up by an errant or embittered ex-wife when he could not have been by a wife, struck Lord Alvaney as unfair. The policy of the law now favours “no fault” divorce. A public policy relating to marriage cannot be separated from the prevailing mores surrounding divorce. That Lord Alvaney was thinking in terms of comparative justice in a court context makes more sense that Lord Radcliffe’s suggestion that the waiting world of spouses would be silenced if they thought disclosures might be used against then in evidence or, per Ungoed-Thomas, print. It is one thing to assert that the public must be deemed to know the law; another to believe our necessary legal fiction. (The law of marital confidence did not exist pre-1964.) It stretches credibility to imagine that an average married couple willing to share a house, open a joint bank account and have children, would be deterred from full and frank disclosure by the thought of their pillow-talk ending up in the News of the World.

Such a juro-centric notion is not only implausible, but backward. Couples confide in one another because they have a healthy relationship. Open channels of communication perhaps assist its preservation – depending on what flows through them. But, if a couple are seriously factoring into their decision to talk to one another whether they could get a gagging order against the repetition of the conversation, marital confidence in the lay sense is evidently dead. Protecting confidences might remove one reason for distrust – among newsworthy unhappy couples – but would not create trust.

Ungoed-Thomas’s decision is nothing to do with policy (in the context of a dissolved marriage). Although his official reasoning is directed at the future, i.e. the message sent to married couples, his visceral justification lies in the institution of marriage, coupled with distaste for the duke’s indiscretion. In refusing to accept the duchess’s immorality as an excuse for it, he says:

“The breaches of confidence of which the Plaintiff now complains appear to be of confidences in the early years of the marriage…When these confidences were made, the relationship [between the parties was]…the normal confidence of trust between husband and wife…[Adultery] makes the confidential relationship of marriage impossible. However, what it does is to undermine confidence for the future and not betray the confidences of the past. If, on divorce, the innocent party is to be licensed to reveal marriage confidences, is the guilty party…That would be piling injury upon the innocent…but the alternative would be that confidences, like costs, should follow the event. Yet the responsibility for the breakdown of the marriage, involving as it des, the most delicate and intimate relationship, cannot always be exclusively attributed to the spouse against whom the divorce decree is granted. And is the marriage to whose sanctity a spouse’s attitude is material, the marriage between the spouses before the court, or is it to be marriage in general?”16

Ungoed-Thomas then attacked the duke’s marital record. In response to a personal bar argument for marital confidence based on marital sanctity, however, it flounders. That each Argyll was working through Who’s Who like an alley-cat in a coronet does not entitle either to rely upon the privileges of an institution they largely ignored. As to “the early years of the marriage”, the received wisdom is that he married her to get money to shore-up Inverary Castle and she married him to get a title. If so, squalid as the Argyll divorce was, it was less sordid than the marriage. The point is not to berate the deceased Argylls, of whom everything has already been said, largely by each other. Rather, that the doctrine of marital confidence gave a greater significance to a relationship than the parties who created it did. The court’s protection of confidence in Argyll being on an equitable basis founded on public policy, both the particular marriage, and marriage in general, at the relevant era, are germane.

Divorce has increased exponentially. We can go (mixing jurisdictions) from Monroe, where an Act of Parliament was needed, to Argyll v Argyll, where a Court of Session Petition was, to the present-day “quickie” divorce. There is much to be said – morally, socially, economically, even environmentally – for getting married and staying married, and the first to give up being declared the testator. But saying it will not make it thus. The courts cannot prop up flagging unions by allowing the parties retrospectively to hush one another.

It is noteworthy that, even in Monroe’s time, there were exceptions to the “general rule of common law that husband and wife could not give evidence for or against each other…A wife could give evidence in cases of personal injury to her at the hands of the husband and in cases of abduction and forced marriage.”17 The exception for abduction is plainly necessary to avoid a circular argument on the marriage’s validity, and the personal injury exception might not be worth much in an era of legally-sanctioned marital rape and wife-beating. But the 18th century law thus recognised that, where the interests of the spouses diverged radically, they should be permitted to speak on their own behalves. The press is an important forum for the vindication of rights – moreover one in which the speaker does not have the privilege against defamation actions which would obtain in court.

A buried argument is that the closeness of the married puts them “off guard” in the matter of confiding in one another, as the duchess’s affidavit claimed. But many exchanges involve this element. Drink alone may do it. Friendship certainly will. The only salient difference in marriage is the scale and bilateralism of the confidences exchanged, and that is a double-edged sword. The greater the amount, and complexity, of confidence, the harder it is to sift its ownership and source, and the greater the potential incursion into freedom of speech.

The other potential difference – that marriage has been recognised as a distinctively valuable institution for social stability – is only valid if, first, it can be shown that the individual marriage attempts to live up to that; secondly, that the institution itself continues to justify its status; and thirdly, that there is some correlation between restriction of speech and support of the institution – not just proportionality, but a causal link between suppression of marital confidences and buoyancy of marriage.

Few exercises in freedom of speech seem so socially nugatory and un-edifying as the post-marital kiss and tell. The positive social evil, however, amounts to no more than the discomfort one experiences in the back seat of a quarrelling couple’s car. A pre-publication ban operates to stop a spouse telling a true version of his or her life – for, if it is not true, the other spouse (generally) has a defamation remedy. Further, it may prevent a right of reply: the duchess had already published her own articles. Although Ungoed-Thomas regarded the duke’s articles as “of an altogether different order of perfidy”,18 one can scarcely blame him for telling his side. As it transpired, his ultimately published articles were the worst publicity for a Duke of Argyll since the massacre of Glencoe and got him expelled from his club; but the proper response is such social, rather than legal, censure. Further, any recourse to court to suppress speech favours the financially advantaged.19 Portraits of a marriage may be tasteless and selective, but suppressing them, it is submitted, is worse.

Does Argyll matter? Apparently so. It established a vast new terrain for the already burgeoning law of confidence, with minimal reasoning to back it. It is not sufficient to say, “the confidential nature of the [marital] relationship is…so obviously…implicit…that there is no reason for it to be expressed” – and to extrapolate from that the putting of a potential D Notice on to a long history.

The most recent example was Peter Carter-Ruck’s suggestion that Margaret Cook’s book about her dissolved marriage to the Foreign Secretary could have been the subject of an action for breach of confidence, and possible account of profits remedy. A Chancery case is plainly not binding in Scotland, and it may be doubted how persuasive an elderly English one-judge case would be if the situs of the Cooks’ marriage is Scottish20; yet Carter-Ruck’s theory was received with respect. Margaret Cook’s revelations are not wholly socially irrelevant, if true. The sobriety, loyalty and integrity of a Cabinet Minister are relevant to the electorate. Given that MPs operate as representatives, not delegates, the relationship of trust between politician and electorate is of as wide social importance as that between husband and wife.

The Argylls were the original hard-cases who made bad law. Whomever the duchess was making happy four decades ago under her husband’s roof – which roof, according to her articles, she paid for – is of radically lesser import than the action she launched in Chancery. Alas, headless men make headlines and thoughtless head-notes do not.

  1. Scotland on Sunday, 7/3/99 
  2. Op Cit 1
  3. [1967] Ch 302, [1965] 1 All ER 611, [1965] 2 WLR 790
  4. Op Cit 3, p8
  5. [1962] 3 All ER 256
  6. 19/6/98 Ch.D. (Lightman J)
  7. Op Cit 3, p9
  8. Op Cit 3, p21
  9. The Duke first saw her whilst in the company of his first wife, to whom he remarked, “That’s the girl I’m going to marry some day”. Shortly thereafter – for reasons we can only guess at – that marriage foundered.
  10. (1849) 1 Mac & G 25
  11. Claiming joint ownership in copyright is hard enough: Robin Ray v Classic FM 18/3/98 Ch.D. (Lightman J)
  12. Op Cit 3, p21
  13. (1802) Peake, Add. Cas 219
  14. Op Cit 5, p10
  15. Evidence (Scotland) Act 1853 S3
  16. Op Cit 3, p21
  17. Op Cit 5, p8
  18. Op Cit 3, p20
  19. It must be admitted that defamation actions are also costly. Ironically, both Argylls said that they wrote their articles to obtain money to pay their legal fees, suggesting that there is no aspect of marital disharmony for which lawyers are not ultimately held to account.
  20. The Argylls married in London, divorced in Scotland. 

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