There are conflicting interests and considerations of public policy, free speech, evidence and law which deserved a fair hearing
The Telegraph reported that it had been prevented by a court injunction from naming a well-known businessman who was the subject of serious allegations of racial and sexual harassment by employees.
The man in question and his companies had entered into compromise agreements with five such complainants, all of which contained confidentiality clauses, referred to, catchily, as “Non-Disclosure Agreements” (or NDAs). The Telegraph, upon learning of the alleged misconduct in the course of an investigation, wanted to publish the man’s name and the details of what he was said to have done.
The man and his companies applied for an injunction prohibiting The Telegraph from doing so, and on 23 October the Court of Appeal ruled in the businessman’s favour. Following widespread opprobrium at the notion of a wealthy and powerful man attempting to silence the free press, and his potential victims, by tying them up in NDAs and enforcing them in the courts, in grim echoes of #MeToo stories from across the lake, yesterday Parliament intervened.
Sir Philip Green remains in charge of Arcadia, a company that owns Topshop, Miss Selfridge, Evans, Burton and more (Photo: Getty)
Lord Hain stood up in the House of Lords and announced that he was using the cover of Parliamentary privilege – which confers legal immunity upon MPs and peers in respect of things said in Parliament – to name the man involved. He told fellow peers that he felt it his “duty under Parliamentary privilege to name Philip Green as the individual in question”, adding that the press had been prevented by the courts from publishing “the full details of a story which is clearly in the public interest”.
That, at least, is the narrative that has been allowed to take root. But the reality, as Lord Hain seems reluctant to recognise, is far more complicated. And certain key details have been left out.
Perhaps the most important point to note is that, despite The Telegraph breathlessly referring repeatedly to the “injunction” in its reports of the Court of Appeal ruling, no final decision had in fact been made by the courts. The Court was concerned with an interim injunction, granted pending a full hearing over the issue of whether The Telegraph, in publishing the story, would be publishing information that had been disclosed in breach of confidence.
Interim injunctions are not unusual in cases involving claims for breach of confidence, for the obvious reason that once the information is out in the public domain, the genie cannot be put back in the bottle. The test that the courts apply when deciding whether to grant an interim injunction is explained in detail in the Court of Appeal’s judgment, but in short boils down to a preliminary assessment of the merits of the claim. Section 12 of the Human Rights Act requires courts asked to grant injunctions to have particular regard to the importance of freedom of expression, and an interim injunction can only be granted if the court is satisfied that the claimant is “likely” to win at a full hearing.
What will the court be deciding at the full hearing? In short, it will be deciding whether the Telegraph had obtained the information in breach of a duty of confidence. If it had, the court will balance the importance of contracts being upheld and legal confidences not breached against freedom of expression and the public interest of this type of alleged misconduct being made known.
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In this case, the High Court, at which the application for an interim injunction was first made, found that Mr Green was not likely to win at a full hearing, and refused to grant an interim injunction. This decision was appealed to the Court of Appeal, which reached a different conclusion as to the merits, finding that Mr Green was likely to succeed. The Court of Appeal particularly deprecated the fact that the High Court had not given any consideration to the “important and legitimate role payed by non-disclosure agreements in the consensual settlement of disputes” when reaching its decision, noting that the complainants in this case had all been independently legally advised, had received “substantial” payments as part of the agreements and had not been subject to “bullying, harassment or undue pressure”.
Crucially, as well, two of the five complainants expressly stated that they supported the injunction – they did not wish for the man to be named or for any details to be made public, presumably through fear that they would be capable of being identified from the details of the complaints (“jigsaw identification”, in trade jargon). Finally, the settlements contained provisions that allowed the complainants to make “authorised disclosures” to regulatory and statutory bodies. In other words, if a crime or regulatory offence had been committed, the NDAs did not prevent the complainants from reporting to the police or other authority. These are all factors which, the Court of Appeal said, were not given sufficient weight by the High Court.
Now the Court of Appeal may well have been wrong in its preliminary assessment. There have been many commentators, legal and non-legal, making a forceful case against NDAs being deployed by rich men to hush up their abuses of power, and the “right” answer may well be that Philip Green should be named, shamed and chased through the village with pitchforks hoisted high. The public interest in a free press being permitted to shine a light on this type of behaviour may well outweigh, in this case, the sanctity of contract law. It may well override the wishes and desires of the complainants.
But that determination had yet to take place. The Court of Appeal, in granting the interim injunction and recognising the importance of a quick resolution, directed a “speedy trial”, at which all the evidence could be considered. This would include evidence of the credibility of the allegations (which Philip Green denies) and a full assessment of the competing interests, including freedom of speech, privacy, the wishes of the complainants and the value of upholding NDAs – not only to rich powerful men, but to wronged employees who desperately don’t want a public hearing to settle serious grievances against their employer, and who wish instead for a private settlement that compensates them without alerting their colleagues or future employers to the dispute.
Lord Hain has taken it upon himself to usurp the functions of the independent judiciary in ongoing legal proceedings and impose his own, irreversible judgment on everybody involved
We don’t know what that full hearing would have decided. It may well have agreed with the High Court. It may have agreed with the Court of Appeal. But the courts have now been prevented from properly considering the matter by the actions of Lord Hain, who has taken it upon himself to usurp the functions of the independent judiciary in ongoing legal proceedings and impose his own, irreversible judgment on everybody involved.
Jumping the gun within hours of the court’s judgment
This was not a case where the legal process had been exhausted, and where, tormented by a sincerely-perceived injustice and having taken soundings from all affected parties, including the complainants, Lord Hain felt he had no option but, as a last recourse, to invoke Parliamentary privilege to frustrate the court’s judgment. There are, it can be argued, circumstances where such a course might be appropriate.
To the contrary, this was a Parliamentarian jumping the gun within hours of the court’s judgment and, with what one might cynically perceive as a rush to be the first to do so, detonating an explosive in an ongoing court case because of the view he had summarily formed of the merits.
One might suspect that Lord Hain forsook reading the judgment and was taken in by the primary-colour narrative of the Telegraph’s story
When interviewed by Evan Davies on Newsnight last night, Lord Hain was asked about some of these issues. What about the wishes of the complainants who supported the injunction? What about the fact that this was an interim injunction? Why the haste? To describe Lord Hain’s answers as evasive would be charitable. He didn’t even attempt to address the questions, either because he knows there is no sensible answer, or because he hadn’t taken the time to actually acquaint himself with the basic facts before forming his view.
One might suspect that Lord Hain forsook reading the judgment and was taken in by the primary-colour narrative of the Telegraph’s story; the misleading suggestion that this was a #MeToo parable of victims wanting to tell their stories but being permanently silenced by a court indulging the whims of powerful, abusive men. In reality, this case is far more complex than that. There are conflicting interests and considerations of public policy, free speech, evidence and law which deserve, and were going to get, a fair and independent hearing.
Lord Hain has ensured that this is one thing which all involved, including potential victims, have now been denied.