Could 'The Stig' be killed off?

When I was learning how to drive, my father asked me what kind of car my instructor had. “A white one?” I hazarded. He was just horrified that I had no idea of the make or how many cylinders it had. I’m not a petrol head - cars are simply a tool for getting around as far as I’m concerned, and as long as they work adequately I don’t really mind.

Still I have to admit that, even for someone as clueless about cars as I am, the BBC production Top Gear has considerable charm. The presenters of Top Gear are Richard Hammond (“the Hamster”), James May (“Captain Slow”) and Jeremy Clarkson (no nickname for him - he’s just deliciously politically incorrect). One of the most intriguing characters of the show, however, is The Stig, a white-clad, white-helmeted “tame racing car driver” with a glistening black visor, who trains celebrities in doing laps for the show’s competition and who sets test times for various cars. Until recently the Stig’s identity was a secret, and there has been much speculation as to who he is.

British newspapers outed The Stig last last year as F3 racing car driver Ben Collins, and news outlets confirmed the hunch earlier this year by inspecting Collins’ company’s financial records. Now it appears Collins is planning to release an autobiography with HarperCollins which would reveal his identity for once and for all. The BBC recently headed to the UK High Court to prevent the publication of the autobiography, but it failed in its bid.

A number of the reports mention that The Stig is subject to a confidentiality agreement with the BBC. If the Stig is Collins, if Collins is subject to a confidentiality clause in his contract which he breaches by publishing the autobiography, and if Collins makes a profit from his breach of contract … then he might need to watch out. It might be hard for the BBC to rely on breach of confidence as an action because it seems that the information is no longer really confidential, but there is a possibility that the BBC could rely on an action in contract to make The Stig disgorge his profits.

Attorney-General v Blake [2001] 1 AC 268 provides that courts in the UK can award accounts of profits for breach of contract in “exceptional circumstances” where the plaintiff has a “legitimate interest” in performance of the contract. The contract in Blake itself involved an undertaking in a contract of employment to the effect that, even after his work had ceased, the employee would not disclose any information about his work without the consent of the Crown. George Blake had been a spy for MI6, but he was also a double agent for the Soviets. When his treachery was uncovered in 1960, he was convicted and imprisoned, but he subsequently escaped from prison and fled to the Soviet Union. Perhaps he wasn’t being kept in the fashion to which he was accustomed after the fall of the Iron Curtain, because in 1990 he published an unauthorised autobiography entitled No Other Choice. The British government was outraged to hear that Blake was being paid £150,000 for the book by his British publishers, and successfully sought an account of profits over all profits remaining in the jurisdiction (some £60,000 had already been paid to Blake in Russia, but about £90,000 remained in Britain).

You can see the parallels and differences between this case and The Stig’s case. In both cases, there was a term of an employment contract which provided that information was to be kept confidential. However, The Stig’s breach is not quite of the same quality as Blake’s: he’s not a double-agent seeking to cash in on his treachery; he’s just a racing car driver on a popular television show.

Certainly, after Blake, there have been cases where some form of gain-based award has been awarded for breaches of contract providing that the promisor was to keep certain information confidential and that the promisor was only to use the information for certain purposes. There have been cases where “reasonable fee” damages have been awarded for a concurrent breach of confidence and breach of contract: see e.g., Pell Frischmann Engineering v Bow Valley Iran Limited [2009] UKPC 45; Vercoe v Rutland Fund Management Limited [2010] EWHC 424 (Ch). (In a somewhat unorthodox fashion, I see “reasonable fee” awards as effecting a partial disgorgement of profit.)

If the BBC were able to force The Stig to disgorge at least part of his profits, what would the implications be for freedom of speech? (This is a question which my fellow law blogger Eoin O’Dell thinks should be asked more frequently in these cases). In the UK freedom of speech is protected under Article 10 of the European Convention on Human Rights (ECHR). Perhaps the Beeb would argue that it was not preventing The Stig from saying his piece (although it did try to prevent him with its application for an injunction!), it was merely seeking a remedy for breach of contract which would protect its legitimate interest, and remove the incentive for any future Stigs to publish memoirs. (Apparently there was a Black Stig before there was a White Stig, but the Black Stig got “killed off” after he let his identity be known … surely incentive enough to keep the secret?)

It’s probably pretty sad that I’m spending the first day sans thesis writing a post which deals precisely with the subject matter of my thesis, but I’m afraid that it was the first thing that popped into my head when I saw that article about The Stig. I will say that this area of law consistently throws up interesting cases, however: my PhD features Jimi Hendrix, the World Wide Fund for Nature and the World Wrestling Foundation, numerous spies and breaches of confidence, and my all time favourite, Elvis’ gold-plated piano!