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Sir Philip Green has been named by Lord Peter Hain as the person who successfully sought an injunction to prevent a newspaper from printing allegations of sexual harassment and racism against him. The complainant had taken the decision to settle the potential claims with Sir Philip and had signed a non-disclosure agreement (“NDA”).
The old adage goes that “everything hidden is meant to be revealed, and everything concealed is meant to be brought to light”. In short, NDAs often don’t work because secrets will out. We cannot help talking about them, and the bigger the secret, the more the talk. For example, consider Donald Trump’s alleged NDA with Stormy Daniels, over his alleged affair.
Lawyers have tried to compel opposing parties to keep secrets for years, and are still trying to do so. NDAs of varying widths and lengths have been developed, sometimes with the best of intentions, just to resolve clients’ disputes and ensure that truly confidential and sensitive information is protected – but sometimes to avoid public opprobrium, and side step regulatory intervention, particularly when allegations of harassment or discrimination were made.
It should be borne in mind that the rules of procedure in the Employment Tribunal provide robust and tested controls to protect the anonymity of a claimant. With this in mind, the Women and Equalities Select Committee chair Maria Miller MP has called for a deep review of their use and legality, following the committee’s report on sexual harassment in the workplace.
But what is the best way of addressing the problem of abuse of NDAs while accepting that enforceable settlements are also in the public interest? And is any of this viable in an age of social media and the readiness of parliamentarians to use their privilege to name the alleged wrongdoer?
A similar problem emerged a few years ago with “super-injunctions”, where the courts ordered that the very existence of an injunction also had to be kept confidential.
The press hated these and sought to use social media and parliamentary privilege for others to say things that the press could not.
That problem was addressed not by legislation but by those involved — judges, lawyers and the media — forming a working group to put in place practical proposals to deal with the abuse of such injunctions. The gagging orders used to be notorious, but now it is rare to hear of them. A balanced overall approach may also be suitable here.
There certainly should be clear judicial guidance on the extent to which the press, who will not be parties to the NDAs, are ever bound to observe their terms. It is one thing to accept confidentiality willingly, it is quite another to, in effect, impose that same duty on a stranger to a contract.
Lawyers have a really important role to play. Barristers are required to act with honesty and integrity, to maintain public confidence in the profession, and to be open and co-operative with regulators. Similar obligations are imposed on solicitors by the Solicitors Regulatory Authority.
Bou Simon v BGC Brokers LLP  EWCA 1525 (Civ).
The question for the Court was whether the trial judge had been correct to imply a term into a loan agreement requiring the appellant broker to repay a loan made by his employer in circumstances where he left the firm before the completion of the ‘initial period’ defined in his employment contract. The trial judge had found that such a term should be implied, applying the test in Marks & Spencer v BNP Paribas Securities  AC 742. The Court of Appeal disagreed. It held that the judge had succumbed to the temptation warned against by Bingham MR in Philips Electronique  EMLR 472 of implying a term to give effect to the merits of the situation as they appeared to the judge, rather than to the obvious intentions of the parties at the time of contracting.
The decision of the Court of Appeal is interesting for its discussion about the circumstances in which deleted words in draft agreements are admissible in determining whether a term should be implied into a contract. This question arose because, in a draft of the loan agreement, the employer had specifically put forward an express term similar to that which the judge implied, but the employee indicated that he did not agree to the inclusion of the term, which was subsequently deleted from the draft. In the event, the Court of Appeal rejected the implied term without reference to deleted term, and so did not need to decide whether or not the deletions could be taken into account, but nevertheless expressed some obiter views on the question.
According to Asplin LJ, deleted words from a draft agreement should only be admitted for the purpose of implication if they were part of the admissible background for the purposes of construing the express terms (para 30). She held that even if the parties had deleted a term which was identical to that which was sought to be implied, this fact could not be relied upon in order to rebut the proposed implication unless it was part of the relevant surrounding circumstances and not merely part of the course of negotiations.
Singh LJ, however, suggested that a wider approach may be justified. He indicated that he saw force in the suggestion in Lewison, The Interpretation of Contracts, that “the consideration of deleted words may negative the implication of a term in the form of deleted words.” (para 33). He also pointed out that, in circumstances where (post Marks & Spencer) it was now clear that the process of implying a term was different from that of construing express terms, the fact that the deletions may not have been admissible for the purpose of construction may not be determinative (para 34).