1/ In Duchy Farm Kennels v Steels, Cavanagh J answers a question we all presumed the answer to but which hadn't ever been decided: what are the consequences of breach of the standard COT3 confidentiality clause? bailii.org/ew/cases/EWHC/… #ukemplaw
2/ Mr Steels brought an ET claim which was compromised via a COT3 on payment of £15,500 over 47 weeks. The COT3 included a standard standalone confidentiality clause as below: 
3/ Mr Steels had someone over to give a quote to mend his fence & couldn't keep his excitement in any longer. He told the fencer all about the settlement. Slightly less bizarre a disclosure given that the fencer had also worked for the kennels & left on bad terms.
4/ Through a chain of gossip, the disclosure may its way back to the respondent, who then stopped paying the settlement sum. Mr Steels then brought a civil claim to enforce. The county court found in his favour, dismissing arguments of breach of a condition/repudiatory breach.
5/ On appeal, Cavanagh J upheld this decision. The term had to be a condition, a warranty or an intermediate/innominate term. Breach of a condition would entitle the employer to treat the contract as brought to an end, as would repudiatory breach of an innominate term.
6/ For a confidentiality term to be treated as a condition when not expressed as such, confidentiality needs to be at the root of the contract. That can happen with a COT3 but wasn't here. The root was the withdrawal of ET proceedings in exchange for a payment.
7/ To treat the clause here as a condition would lead to undesirable results. There had been no commercial damage from the disclosure. Moreover, as drafted, Mr Steels would be in fundamental breach even for telling his wife. That can't have been anyone's attention.
8/ The clause here was innominate & the breach wasn't repudiatory. It didn't nearly reach the Tullett Prebon threshold & was one where damages were an adequate remedy.
9/ If a respondent wants to give a confidentiality clause really sharp teeth, then it could expressly identify the clause as a condition or could provide expressly for repayment as a consequence of breach.
10/ And with that, Cavanagh J set in stark terms the oft-fought battle between settling respondent lawyers & claimant lawyers, with the former trying to give their confidentiality clause the teeth of a shark & the latter the teeth of Shane McGowan (before the work) #ukemplaw
