Prince may prefer Smith to tell all

Reports today suggest Prince Charles will refrain from taking legal action against former valet George Smith. But many may wonder why he has not acted.

Legal action against former employees to retain their silence is not unusual. Three years ago Cherie Blair was granted an injunction against the family's former nanny, Ros Mark, to prevent the publication of a book about her time with the Blairs.

Last year, Lady Archer obtained an injunction against her former secretary, Jane Williams, to stop her going to the press. And last month, Manchester United went to court seeking to stymie the publication of a book by former security official Ned Kelly.

These days, the terms of engagement of any assistant, servant or nanny to a celebrity will almost certainly contain a carefully drafted confidentiality clause requiring any matters of which they become aware in the course of their employment to be kept secret, even after they have left the job. Even if there is no express confidentiality clause, the courts are likely to assume that a duty of confidence exists anyway by the very nature of the job.

Given this, it is almost surprising that Charles has not already taken legal action against Smith. It might be that he is simply reluctant to get embroiled in civil litigation, preferring to allow former aide Michael Fawcett to bring an action against newspapers and restrain the revelations that way. Fawcett himself could not bring an action in breach of confidence against Smith since no duty is owed by Smith to Fawcett, only to the Prince.

But there may be another problem with Prince Charles bringing a breach of confidence claim. The key allegation, the publication of which has been barred by a High Court injunction, has been vigorously denied by the Prince. Traditionally the courts have taken the view that there is no confidence in false information. If it was made up, it was not information obtained in the course of employment.

It is true that in the past few years the courts have been considering the development of the law of privacy. Such a law might allow the Prince to restrain the publication of alleged intimacies about him without having to assert whether or not they were true.

However, most recently the courts have allowed privacy actions only if they were broadly within the traditional confines of the law of confidence. For that reason, it may still be that the Prince's assertion that the allegations are untrue may undermine a breach of confidence claim.

Moreover, leaving aside the legal niceties, another concern for the Prince is that in the age of the internet, any legal action is likely to be of only limited effectiveness. Indeed, he may on reflection prefer Smith's account to be published rather than requiring people to rely upon the lurid exaggerations being circulated over the Net. A dignified silence may well be his best response.