Thread by @BarristerSecret

So, injunctions, Non-Disclosure Agreements and #MeToo.

A few pointers to note that you may have missed amongst all the coverage of the Telegraph’s battle to publish “confidential” details of complaints of misconduct against a prominent businessman. [THREAD]

In a nutshell, two unnamed companies and a senior executive have been accused of misconduct. The Telegraph wants to publish details. The company and exec say that the complaints were settled by Non-Disclosure Agreements (NDA) involving payments to the complainants. [2]

The company and the executive say that the details of the allegations are therefore confidential, and that the Telegraph publishing would amount to a breach of confidence. They are seeking an injunction to stop the Telegraph ever publishing. [3]

This will be decided by the High Court in due course.

But here’s the thing you may have missed - no final decision has yet been taken.

All the coverage relates to an *interim* injunction.

What’s that? Read on.

It defeats the point of a claim in which someone’s seeking an injunction if the publisher publishes the story while the parties are waiting for a trial date. So in certain instances the courts will grant an interim injunction, preventing publication until the final determination.

The legal test for granting an interim injunction is set out at length in the judgment (bailii.org/ew/cases/EWCA/…). In short, it involves a preliminary assessment of the merits. The court must be satisfied that the claimant is “likely” to win at the full hearing.

For the meaning of “likely”, see the case law referred to in the Court of Appeal’s judgment. It also explains what test the court will have to apply at the full hearing - in short it will boil down to whether the public interest in publishing outweighs any confidentiality.

Now what happened here is that the High Court thought this test wasn’t satisfied - ie that the claimants were not likely to win at full hearing. So it said it wouldn’t grant an interim injunction. However on appeal, the Court of Appeal formed a different view.

You can read it for yourself, but in short the Court of Appeal said that the High Court had not considered all the relevant case law and principles, and in particular the public policy considerations of the courts allowing contracts - NDAs - to be breached.

The Court of Appeal therefore said that it had formed the opposite view to the High Court, and thought the claimants *were* likely to win. But it was not ruling that they had in fact won. This will be decided by a different judge in a different court.

There is understandable disquiet at the notion of the courts prioritising contract law over the public interest in exposing bad behaviour and abuses of power. But it’s important to note that it’s not just the company - two complainants don’t want the details published either:

So there’s an argument to be had. It’s not quite as straightforward as “complainants want to publish, man doesn’t.” There are a number of competing interests, as well as factual disputes over the allegations themselves. And these will all be thrashed out at the full hearing.

The High Court at the full hearing may well agree with the Court of Appeal and grant a permanent injunction (for all the good they are in the social media age). But it’s quite possible that it won’t; that it will come down in favour of publishing.

So that’s probably worth bearing in mind when you read about MPs being asked to “expose” the people involved through announcing the details in the House of Common and relying on Parliamentary privilege. The legal process is not over. The full argument hasn’t yet happened.

[ENDS]

POSTSCRIPT: Worth adding this as it's a common question:

https://twitter.com/BarristerSecret/status/1055164051330924545