Non-Disclosure Arrangements

Speaker: Oliver Isaacs
Chambers: Old Square Chambers

Non-Disclosure Arrangements
Oliver Isaacs
Barrister
Old Square Chambers

This seminar will cover

The Restrictions on Enforcement
• Settlement satisfying statutory requirements
• Information must have the necessary quality of confidence
• Public interest “defence”
• Required to disclose by law
• Void under the whistleblowing legislation under s43J ERA 1996

Public Interest – Historical Overview
• Gartside v Outram (1857) 26 LJ Ch – No confidence in iniquity
• Initial Services v Putterill (1967) 3 All ER 145 – Crimes frauds and misdeeds
• Lion Laboratories Ltd v Evans (1984) 2 All ER 417
• Spycatcher – A-G v Guardian Newspapers (No 2) (1990) AC 109 “A public interest that confidences should be preserved and protected…” – that can be outweighed “by some countervailing public interest which favours disclosure”

Balancing Rights Under the HRA
Prince of Wales v Associated Newspapers (2006) EWCA Civ 1776 – A proportionality test:-
whether it is necessary to restrict freedom of expression in order to prevent disclosure of information received in confidence is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached. The Court will need to consider, whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public.

ABC v Telegraph Media Group Ltd
(2018) EWCA Civ 2329
Provided that the agreement is freely entered into, without improper pressure or other vitiating factor, and with the benefit (where appropriate) of independent legal advice, and again, where appropriate) with due allowance for disclosure of any wrongdoing to the police or appropriate regulatory or statutory body, the public policy reasons in favour of upholding the obligation are likely to tell with particular force, and may well outweigh the article 10 rights of the party who wishes to publish the confidential information.

What to Consider
• Did the employee receive specific legal advice on the NDA?
• Was there any consideration for the confidentiality provisions?
• Is there any suggestion of oppression?
• What is the type of information which the employee seeks to disclose?
• How serious is the wrongdoing?
• All the circumstances!

SRA – Warning Notice
NDA’s must not be used as a means of preventing, or seeking to impede or deter, a person from:
• Reporting misconduct to a regulator;
• Making a protected disclosure under the whistleblowing legislation;
• Reporting an offence to a law enforcement agency (such as the police);
• Co-operating with a criminal investigation or prosecution;
• As a means of improperly threatening litigation against, or otherwise seeking improperly to influence, an individual in order to prevent or deter or influence a proper disclosure.

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