(Just to restate what is going on here...gn)

In January 1975 one of the actresses, A, was engaged to play in a musical which was to begin in a April.

In February Thames renewed the option ( for using the actresses in the roles of the tv version of their own idea) and commissioned a scriptwriter to write scripts for the series after deciding to make the series in September 1975.

Unsuccessful efforts were made by A's agent to obtain her release from the musical. The actresses and the manager by letter agreed to participate in the series in accordance with the terms of the option.

A stormy meeting between Thames, the producer and the manager followed and soon after that Thames informed the manager by letter that unless A was free of all other work commitments by the next morning the parts in the series would be recast.

The release from the musical was not obtained in time and the series was subsequently made with three other actresses in the leading roles. The actresses and the manager sued Thames, the scriptwriter and the producer claiming damages (i) for breach of contract, contending that there was an implied negative covenant in the option agreement that if the three actresses were willing to perform in the series Thames would (ii) not go ahead with the series using their idea without also using their services as actresses, and (iii) for breach of confidence.

The defendants contended (i) that the manager had acted merely as agent for the three actresses and not as a principal party to the agreement and was therefore not entitled to sue in his own right, (ii) that the contract related only to the services of the actresses and did not embrace rights in the idea for the series, (iii) that the actresses' and the manager's conduct amounted to a constructive refusal of an d offer of parts, and (iv) that the law of confidence did not extend to an idea which had been expressed orally.

(The Judge) Held -

(I) On the facts, the manager was a joint owner of the idea and a member of the group so that in addition to being agent for the three actresses he was himself a principal party to the agreement. He was therefore entitled to sue in his own right (see p ll2 hj e and p I13 h j, post).

(2) It was an express term of the contract between the group and Thames created by the granting of the option that Thames was to acquire the right to the idea which belonged to the group and furthermore there was implied into the agreement a negative covenant that if the three actresses were willing to appear in the series Thames would not make use of the idea without also employing them as the actresses in the series on terms to be negotiated later.

Accordingly, Thames's failure to offer the three actresses the parts was a breach of that implied negative covenant, and its use of the idea with three other actresses in the absence of a refusal by the plaintiff actresses was a wrongful repudiation of the contract.

(3) The court would prevent a person who had received an idea expressed in oral or written form from disclosing it for an unlimited period or until that idea became general public knowledge provided (a) that the circumstances in which it was communicated imported an obligation of confidence and (b) that the content of the idea was clearly identifiable, original, of potential commercial attractiveness and capable of reaching fruition.

(THE JUDGE THEN ANALYSED THE EVIDENCE AND APPLIED VARIOUS PRECEDENTS AND A TEST ACCORDING TO VARIOUS AUTHORITIES PARTICULARLY ONE WHICH DATED BACK A NUMBER OF YEARS - AN EXTRACT FROM HIS JUDGMENT FOLLOWS...)

Applying that test to the facts, the communication of the idea for the series had been made in confidence and the idea was a distinct concept having sufficient originality, commercial attractiveness and likelihood of realisation so as to fix Thames, the scriptwriter and the producer with an obligation of confidence -- which they had breached when they used the idea as the basis for their own television series.

Original copyright : K Mydeen Esq Barrister

Accordingly the actresses and their composer manager were awarded substantial damages.! ...