Why has Sir Phillip Green been named – despite Court Order?
Non-Disclosure Agreements (NDAs) have been in the news once again, after Lord Hain used Parliamentary privilege to reveal that the businessman who had obtained an injunction barring the publication of allegations of sexual harassment and racial abuse was Sir Phillip Green.
NDAs have been used by both businesses and individuals for a number of reasons over many years in order to protect confidential information, or to maintain confidentiality in settlement of various types of claims.
Should an NDA be breached, the party breaking the agreement could be liable for damages in the form of hefty financial compensation.
In the Sir Phillip Green case, the Court of Appeal had in fact granted an interim injunction to prevent the Telegraph Media Group from publishing its investigation and naming Sir Phillip, reversing a High Court decision to refuse the injunction application.
In this case employees had settled claims and as part of the settlement agreement had agreed to keep secret the subject matter of their complaints, in return for which their claims had been settled.
Importantly, each employee had received independent legal advice before signing the agreements and there was no suggestion of undue pressure being exerted upon them to sign the agreements.
The Court of Appeal made clear that NDAs still play an important and legitimate role in the consensual settlement of disputes.
Whilst the Government has indicated that it will legislate to curb unfair use of such agreements or to limit their use to certain situations, NDAs continue to be an effective tool in achieving settlement of disputes and ensuring that confidentiality is maintained; whether that relates to the subject matter of the dispute itself, or the fact and terms of the settlement of any claims.
As can be seen from the Court of Appeal’s decision, the Courts will uphold NDAs by granting injunctions or allowing a claim for damages for any breach.
The key is to ensure that the terms of confidentiality are fully set out, the parties have independent legal advice and no undue influence or pressure is put on either party to enter into the agreement.
For advice regarding NDAs and confidentiality agreements, please don’t hesitate to contact one of our legal experts by email or call us on 0845 287 0939.