26th October 2018

Defining the Public Interest: The case of the non-disclosure agreement and the privacy injunction

By Callum Galbraith

The senior executive who was recently granted an injunction to prevent the publication of their identity along with allegations of “discreditable conduct” has been named. That injunction remains in force but the senior executive has been named. This is because Lord Hain disagrees with the Court of Appeal’s decision which was based on their application of the law and their clearly careful consideration of the facts as they currently stand. Recent events further bring into focus the respective roles of the judiciary as arbiters of the law and of Parliament as law-makers.

By way of background, on 23 October, three Court of Appeal judges handed down judgment in the case of ABC & Others v Telegraph Media Group [2018] EWCA Civ 2329. The Claimants are two companies within the same group and a senior executive. The Telegraph sought to publish details relating to complaints made by five employees of the Claimants about the conduct of that senior executive. Importantly, the complaints had been settled by Non-Disclosure Agreements (NDAs) under which “substantial payments” were made to the employees.

The first injunction application was refused by the High Court. The Claimants successfully appealed, with the Court of Appeal stating that the most serious allegations were denied by the Claimants and this dispute could not be resolved prior to the Trial during which evidence would be heard. The Judges added that it was “unlikely that the Claimants’ enforcement of their right to confidentiality would be defeated at trial by a defence of public interest” and that there was “no evidence that any of the Settlement Agreements were procured by bullying, harassment or undue pressure”. The individuals entered into those agreements having obtained legal advice and they remained free to report the allegations to the relevant authorities if they wished to do so. For these reasons, coupled with the fact that two of employees wholly supported the Claimants’ application, the appeal was allowed and an order was made for a speedy Trial. The Court was persuaded by the fact that there was a clear public interest in maintaining mutually agreed obligations of confidence.

Yesterday afternoon however, Lord Hain, speaking in the House of Lords, stated that it was his “duty” to reveal the identity of the individual given the “serious and repeated” nature of the allegations made against the senior executive and the use of NDAs in settlement of the employees’ dispute.

The judgment, along with Lord Hain’s actions, has led to heightened media scrutiny of NDAs. Their use can protect both those who have made allegations of a private nature which they would prefer not to air in Court and also those the allegations are made against. It is worth noting and reflecting that injunctions of this nature are a first line of defence against untried and unproven accusations in an age where public opinion has never been so vociferous but also so vulnerable to manipulation.

This article was co-authored by Callum Galbraith and Lucy Smith


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