The Court of Appeal has overturned a decision of the High Court and granted a business executive (anonymised at first but later revealed to be Sir Philip Green) an interim injunction on the basis of breach of confidence, pending a full expedited trial. The claim was brought on the basis that the sources of the confidential information had been signatories of non-disclosure agreements between themselves and the executive. The executive in question was subsequently named under parliamentary privilege as Sir Philip Green.
The Claimants were two companies in the same group and Sir Philip Green. Five employees of the companies had made allegations of discreditable conduct by Green through the companies' grievance procedures and then subsequently in the Employment Tribunal when those grievances were not upheld. The claims were settled by agreement ("the NDAs") and substantial payments were made to the complainants (who had legal advice when entering into the NDAs) on the basis that the subject matter of the complaints was kept confidential.
In July 2018 the Telegraph contacted the complainants with a view to publishing their story. It became apparent to the Claimants that the information and the existence of the NDAs had been leaked to the Telegraph by one or more of the complainants. The Claimants immediately sought an injunction on the basis of breach of confidence.
At first instance Haddon-Cave J refused the injunction and the Claimants appealed to the Court of Appeal.
When assessing an interim injunction which might affect the right to freedom of expression under the Human Rights Act, in order to grant the injunction the Court must be satisfied that the claimant is 'likely' to establish that the publication should not be allowed. 'Likely ' has been determined to mean a higher standard than 'real prospect of success', but the Court is permitted to dispense with this standard where particular circumstances make it necessary. A general example of where the Court can depart from the standard is where the adverse consequences of disclosure would be extremely serious and a restraint on publication should be maintained until the dispute can be resolved at trial.
When assessing whether it is likely that the publication should be allowed, the Court will assess the balance between restraining the publication of the confidential information and the public interest that may justify its publication. In short, the Court will determine whether in all the circumstances, it is in the public interest that the duty of confidence should be breached.
When making this assessment, it an established principle that the weight which should be attached to an obligation of confidence may be enhanced if the obligation is contained in an express contractual agreement (i.e. a NDA), particularly if the parties entered into such an agreement with the benefit of legal advice.
At first instance, Haddon-Cave J determined that the Claimants were not 'likely' to succeed at full trial because, in his view, all the circumstances the public interest in the publication outweighed any confidentiality attaching to the information. His reasons were summarised as:
- It was not demonstrated that the information was obtained in breach of the NDAs.
- The information was reasonably credible.
- A considerable amount of the information was in the public domain.
- There could be no reasonable expectation of privacy and confidentiality in some of the misconduct alleged.
- The publication was in the public interest.
Accordingly, he dismissed the application. The Court of Appeal disagreed and set out its reasoning in response to each of Haddon-Cave J's conclusions summarised as follows:
- The confidential information obtained by the Telegraph was passed in a breach of duty of confidence and the Telegraph was likely aware of this breach.
- The credibility of the information was relevant, but there were several apparent facts which went the other way which needed to be weighed in the balance.
- Whilst some of the information was in the public domain, the most serious elements of the complainants' allegations were not.
- As a general proposition it was accepted that there could be no reasonable expectation of confidentiality in the misconduct alleged, but this ignored the fact that the complainants had entered into NDAs creating obligations of confidence. The real issue was whether breach of that confidentiality was in the public interest.
- Whilst the Court of Appeal accepted that misconduct in the workplace and also the legitimacy of NDAs for 'gagging' disclosure by victims could contribute to a debate of public interest so as to make the information in the public interest, this ignored the fact that NDAs had an important and legitimate role in the consensual settlement of disputes. There was no evidence that the NDAs in question had been procured by threats or bullying, but had been entered into freely on the basis of independent legal advice. The effect of the NDAs was to put an end to existing or potential litigation an enabled the employees to receive substantial payments.
As an additional overlay, the Court of Appeal held that the judge had also failed to consider the relevance of the immediate and irreversible harm that the Claimants might suffer if the information was published.
Although Sir Philip Green has now been named as the executive in question, the information which was the subject of the injunction will remain restrained pending judgment in the expedited trial.
This case (following the similar case of Mionis v Democratic Press SA last year) reaffirms the importance of NDAs to the maintenance of confidential information and the ability to obtain injunctive relief if information covered by an NDA is published or threatened to be published. There is certainly a debate to be had as to whether NDAs are being used as an illegitimate tool to suppress the voices of victims where such agreements are forced on those victims through legal bullying and intimidation. The Court of Appeal held that this was not the case the in these circumstances. Interestingly, two of the five complainants supported the Claimants' application for the injunction, one did not.
A separate debate can also be had as to whether it is right for members of the House of Commons and House of Lords to use parliamentary privilege to reveal the names of anonymised claimants in circumstances where a Court (and in this case the Court of Appeal) has produced a reasoned judgment, with all the available facts and arguments before it, that anonymity should be maintained.