| From: | Robert Stevens <robert.stevens@law.ox.ac.uk> |
| To: | Matthew Hoyle <MHoyle@oeclaw.co.uk> |
| Paul Stanley KC <PStanley@essexcourt.net> | |
| obligations@uwo.ca | |
| CC: | birke.haecker@uni-bonn.de |
| Date: | 03/03/2023 16:43:17 UTC |
| Subject: | RE: Hancock v Oakeshott |
Obligations in restraint of trade too of course. A closer analogy?
Is it that contractual obligations of confidence are similarly only enforceable if in the public interest?
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: 03 March 2023 16:39
To: Robert Stevens <robert.stevens@law.ox.ac.uk>; Paul Stanley KC <PStanley@essexcourt.net>; obligations@uwo.ca
Cc: birke.haecker@uni-bonn.de
Subject: Re: Hancock v Oakeshott
Penalty clauses are plainly subject to a special defence.
Obligations to pay agreed sums also subject to a lack of legitimate interest defence.
An English court can override a choice of a foreign court clause in certain circumstances (although query whether the party commencing such proceedings may in principle still be liable for breach of promise in doing so).
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and may be privileged. If you believe you have received it in error please delete this email and immediately inform the sender.
Regulated by the Bar Standards Board.
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Friday, March 3, 2023 4:32:06 PM
To: Paul Stanley KC <PStanley@essexcourt.net>; Matthew Hoyle <MHoyle@oeclaw.co.uk>;
obligations@uwo.ca <obligations@uwo.ca>
Cc: birke.haecker@uni-bonn.de <birke.haecker@uni-bonn.de>
Subject: RE: Hancock v Oakeshott
PS states
“But open question whether defences which would certainly apply to equitable duty of confidence (eg public interest) do apply to contractual agreements)”
Is it arguable that the public interest defence that applies to freestanding breach of confidence doesn’t apply to a contractual claim for breach of a non-disclosure agreement? If it does, does it mean that some contractual duties are
subject to defences that other contractual duties are not?
Does the “public interest” defence cover any disclosure, such as to a national newspaper for purposes of that newspaper’s anti-vax campaign when the same information has already been disclosed to a public inquiry?
Does “public interest” apply to all remedies (injunctions, damages) including any possibility of accounting for profits?
(I notice with interest that the full title of the CA’s decision was Faccenda Chicken v Fowler).
From: Paul Stanley KC <PStanley@essexcourt.net>
Sent: 03 March 2023 15:15
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; Robert Stevens <robert.stevens@law.ox.ac.uk>;
obligations@uwo.ca
Cc: birke.haecker@uni-bonn.de
Subject: Re: Hancock v Oakeshott
I think the cases suggest that these are parallel (not interlinked) duties with some rather difficult dicta in Faccenda Chicken iirc suggesting that if there’s a contract it is regarded as dominant for the purposes of analysis. I think
there is some useful discussion by Arnold J (as he then was) in one of the Force India cases.
Barrister regulated by the Bar Standards Board
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Friday, March 3, 2023 2:27:16 PM
To: Paul Stanley KC <PStanley@essexcourt.net>; Robert Stevens <robert.stevens@law.ox.ac.uk>;
obligations@uwo.ca <obligations@uwo.ca>
Cc: birke.haecker@uni-bonn.de <birke.haecker@uni-bonn.de>
Subject: Re: Hancock v Oakeshott
Although one wonders whether an equitable relationship created by contract also creates a parallel contractual duty with a life of its own - eg in the
Hospital Products type case, do the parties create fiduciary duties “moulded” to the contract only, or both such fiduciary duties
and contractual duties to act in best interests, avoid conflict of interests (which can only sound in damages on the contractual measure),
The Aus cases suggest parties cannot by contract create new equitable duties, only those which equity already recognises. But by contracting for confidence do they “opt in” to equity only? Or is it simply a matter of interpretation, like
jurisdiction clauses, sometimes a promise not to sue elsewhere?
I would suspect probably the latter, but would assume the default is the parties were trying to create an equitable duty, subject to its usual incidents. It avoids difficult questions of whether the contractual duty is too absolute eg
prohibiting disclosing the information in court.
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and may be privileged. If you believe you have received it in error please delete this email and immediately inform the sender.
Regulated by the Bar Standards Board.
From: Paul Stanley KC <PStanley@essexcourt.net>
Sent: Friday, March 3, 2023 1:02:26 PM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; Robert Stevens <robert.stevens@law.ox.ac.uk>;
obligations@uwo.ca <obligations@uwo.ca>
Cc: birke.haecker@uni-bonn.de <birke.haecker@uni-bonn.de>
Subject: Re: Hancock v Oakeshott
Yes. But open question whether defences which would certainly apply to equitable duty of confidence (eg public interest) do apply to contractual agreements. So it still matters. Sometimes.
Barrister regulated by the Bar Standards Board
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Friday, March 3, 2023 12:32:06 PM
To: Robert Stevens <robert.stevens@law.ox.ac.uk>;
obligations@uwo.ca <obligations@uwo.ca>
Cc: birke.haecker@uni-bonn.de <birke.haecker@uni-bonn.de>
Subject: Re: Hancock v Oakeshott
Surely even if non-contractual, the existence of the NDA creates a relationship of confidence? But I would agree the willingness to share confidential information on condition of non-disclosure ought to be regarded as consideration for
the bargain.
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and may be privileged. If you believe you have received it in error please delete this email and immediately inform the sender.
Regulated by the Bar Standards Board.
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Friday, March 3, 2023 12:28:29 PM
To: obligations@uwo.ca <obligations@uwo.ca>
Cc: birke.haecker@uni-bonn.de <birke.haecker@uni-bonn.de>
Subject: Hancock v Oakeshott
My much-missed former Oxford Colleague Birke Häcker aske me to write on her behalf:
Dear colleagues,
It is widely reported that Isabel Oakeshott did not charge Matt Hancock any fee for ghostwriting (or ‘co-authoring’) his ‘Pandemic Diaries’ – interestingly described as her having acted ‘pro bono’.
If this is so, then surely the NDA she signed is unenforceable unless contained in a deed? Media law specialists appear to assume that it was under seal, describing it as a “contractual agreement …. enforcible as such” without adverting
to the “pro bono” quirk of the particular case:
https://www.theguardian.com/commentisfree/2023/mar/02/isabel-oakeshott-matt-hancock-whatsapps-journalist-media-law
Does anyone know what the usual conventions are on NDAs? In short, am I missing something – or was Isabel Oakeshott really savvy in arranging the Hancock deal?
With best wishes
Birke (Häcker)
(For myself, much like Captain Renault, I am shocked that Ms Oakeshott would betray a source.
I’d have thought Hancock’s provision to her of the valuable confidential information, useful to a political “journalist” even if required to be undisclosed, sufficed as consideration for her promise not to disclose it).
Rob
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The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not
the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful.
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