The Stig’s identity and gain based damages

By Legal Eagle

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 eg, 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!


  1. Posted September 2, 2010 at 4:48 pm | Permalink

    The BBC faces another problem on this issue too LE namely the fact that they care about how they are seen by the viewing public and if they are seen to be unfair to Ben Collins then they will be cutting off their nose to spite their face. The idea of having a “tame racing driver” gives many of their road tests a gravitas that the show would lack with only the other three presenting the show.

    The thing is the show has become immensely more popular than it did when the idea of “the Stig” was first invented and I just think it is just entirely unfair that the man should be treated like a pariah by the BBC just because he wants the acknowledgement that he so obviously deserves.

  2. Posted September 3, 2010 at 3:38 am | Permalink

    Rellies back in Blighty tell me that most of the sympathy is with the BBC. I can only go on what they say and it could turn out otherwise but I get the impression that people feel that it’s the BBC which got tucked up by Collins, not the other way around. Of course lots of the same people were no doubt consumed with curiosity about whether Collins really is/was the Stig, which just goes to show that people can be a little weird at times. I’d guess that we like to feel like we’re in the know and we like eventually to be proved correct, but we also enjoy the speculation (which is why the bookies are already giving odds on who the next Stig is even though Stig 3.0 might not reveal his identity for years, if ever) and don’t always look kindly on the person who puts an end to the game. There’s probably also the fact that everyone has had a promise broken and we don’t naturally take the side of someone who seems to have broken faith.

    I have a question, though. Actually a series of them. Assuming that the Beeb did have that contract and assuming that Collins is able to publish without any financial comebacks and, since the BBC have apparently given him the Spanish Archer already, maybe even successfully claims unfair dismissal (yes, I am deliberately going for what’s worst for the BBC), what effect does that have on contract law generally? You’re lawyers and I’m not, so I’m expecting to be corrected here, but isn’t a lot of law based on precedent? So would an extremely favourable result for Collins (all in the name of free speech and ignoring the fact he’d agreed in writing to keep his gob shut) weaken contract law generally or would it only affect similar confidentiality clauses? And does legal precedent have any kind of domino effect that could mean a successful future case referring to this one effectively widening the goalposts, and then another and another until eventually the narrow area of confidentiality clauses has spread to wider areas of contracts? I guess what I’m really asking is if the long term future of a written and signed agreement between two people, companies, whatever, is safe or whether Collins is knocking a small hole in it that could grow bigger in years to come.

  3. Jazz
    Posted September 3, 2010 at 2:11 pm | Permalink

    “British government was outraged to hear that Blake was being paid £150,000 for the book by his British publishers”

    Suggests a vendetta rather than a strict application of the law. If there is no law under which to prosecute than they should just accept it and walk away. It seems that its only in sports that we get the application of rule of law. World Cup: England vs Germany. It was without doubt, a goal. But they did not try to reinterpret the law to come to a different conclusion.

    Governments a have no qualms about reinterpreting the law to suit their own purpose by introducing retrospective legislation when they feel like, getting the judges to stretch interpretation in cases like Blake and making a mockery of the rule of law.

  4. Posted September 3, 2010 at 5:44 pm | Permalink

    Thanks, Legal Eagle. Some food for my thoughts, there.

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