Friday, 26 October 2018

Press freedom, Confidentiality, Parliamentary Privilege

On 23 October, the Court of Appeal (Civil Division) imposed an INTERIM injunction in favour of unnamed appellants (referred to as ABC) to prevent The Telegraph publishing what they claimed to be confidential information about them which had been disclosed in breach of confidence - ABC and others v Telegraph Media Group Ltd [2018] EWCA Civ - Sir Thomas Etherton MR, Underhill and Henderson LJJ.

The appellants are two companies in the same group and a senior executive of that group.

Employees of companies in the group alleged discreditable conduct on the part of that senior executive.



Both sides undertook to keep confidential the subject matter of the complaints themselves and various associated matters, including the amounts paid by way of settlement.  The court referred to these agreements as Non-Disclosure Agreements (NDA).

The case clearly engages two areas of importance:  press freedom and observance of duties of confidence and which of the two is to prevail.

The case law is discussed at some length even though they judgment states that - "There is no dispute about the principles of law which must guide us in resolving this appeal."

The court decided to impose an interim injunction and commented - "We presently consider that it should be limited to the allegations as to the individual incidents of alleged misconduct particularised in the grievances and the Grounds of Complaint to the Employment Tribunal and to the negotiation and terms of the Settlement Agreements.  We will, however, consider any further submissions in writing that the parties may wish to make on the terms of the injunction."  Presumably, the injunction extended to the name of the senior executive.

Importantly, the court said - "We appreciate that any delay in the publication of matters of public interest is undesirable."  A 'speedy trial' was therefore ordered. 

House of Lords Chamber:

Enter Lord Hain who chose to name Sir Philip Green -formerly of British Home Stores - as the senior executive in question - BBC News 26 October.  Hain did so knowing that his statement, in the Chamber of the House of Lords, was subject to Parliamentary Privilege.

Parliamentary Privilege is described in the Joint Committee Report of Session 2013-14.


Whether Lord Hain should have used Parliamentary Privilege in order to name Sir Philip Green is a matter on which opinion will differ.

The court was dealing with the matter and had imposed an interim (i.e. temporary) injunction and also ordered a speedy trial so that the issues could be determined as soon as possible.  The outcome could have been that the newspaper was free to publish details.

It is essential that the courts as well as Parliament are free to operate in their respective spheres without improper interference from eachother. and misuse of Parliamentary Privilege is likely to bring it into disrepute.

Lord Hain defends his comments saying that he had been contacted by someone "intimately involved in the case" and, given the use of non-disclosure agreements (NDAs) "to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying", he felt he should speak out.

A further question is the extent (if any) to which the law should enable the cover up of matters such as sexual harassment or other discreditable conduct - see Non-disclosure agreements: warning for law firms.  It is reported that the government is to bring forward a consultation on the use of non-disclosure agreements in employment situations.  See also the Law Society - Use of Non-Disclosure Agreements in employment contracts and Solicitors Regulation Authority - Warning Notices - Use of Non-Disclosure Agreements.

Finally, there is the story - reported by Legal Cheek - that Lord Hain is an adviser to solicitors Gordon Dadds LLP the firm which handled The Telegraph case.   He has registered this as an interest

"Associate with Global Partners Governance Limited in respect of their Foreign and Commonwealth Office contract to provide mentoring and training for parliamentarians and their staff in emerging democracies."

Updates:

A)  BBC News 27 October - "Sir Philip has said in a statement that he "wholly and categorically" denies any allegation of "unlawful sexual or racist behaviour".

On Friday he said he had been advised that Lord Hain's actions are likely to have breached the House of Lords Code of Conduct.

Since Lord Hain spoke, it has emerged he is a global and government adviser at Gordon Dadds, the law firm used by the Telegraph.

Gordon Dadds said Lord Hain had not obtained any information from it regarding the case, "including any information which would enable him to identify Philip Green as having any involvement in it".

B)  Financial Times 27 October - The Philip Green case is not as simple as it seems

C]  Informm's Blog - Lord Hain and Privilege: When power, wealth and abuse combine to subvert the rule of law

D)  The Guardian - Parliamentary privilege can be a threat to the rule of law

E)  R. Craig, ‘The Peter Hain Case: The Effect of Article IX’, U.K. Const. L. Blog (31st Oct. 2018) (available at https://ukconstitutionallaw.org/))

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