Thanks very much for this, it really is very interesting. I had always
understood (perhaps wrongly?) that absent something so extremely
objectionable that public policy was in play, there was no public
interest defence to a sufficiently well drafted and express obligation
to preserve confidentiality. I accept injunctive relief is a
discretionary remedy but one could still pursue a common law claim for
damages?
On 3/3/23, Paul Stanley KC <PStanley@essexcourt.net> wrote:
> All good questions. As presently advised:
>
> 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?
> I think those points are “up for grabs”. One theory is that unless a term
> permitting disclosure can be implied or the obligation is itself so bad as
> to be contrary to public policy, it is not a defence to a breach of an
> express agreement not to disclose that it is in the public interest to
> disclose. I guess one would handle it at the level of defining the duty (for
> preference), rather than as a defence.
>
> 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?
>
> No. That’s clear on the authorities. The defence depends on disclosure to
> the “right person” in principle. But complicated by Article 10, because
> “public interest” and “freedom of speech” get muddled together, so a
> newspaper’s anti-vax campaign might have quite a strong claim.
>
> Does “public interest” apply to all remedies (injunctions, damages)
> including any possibility of accounting for profits?
>
> Also an interesting question. In confidentiality as such, conceived as a
> defence to liability, it presumably does. In contract, one could clearly
> apply it to a claim for an injunction *even if* it didn’t apply to damages
> (and some authorities do indeed treat it in a way that mixes it up with
> injunctive factors, including everyone’s favourite “clean hands”, Denning
> was particularly keen on this when dealing with scientologists). Article 10
> also in play here. Accounting for profits: the trend in the Engllish cases
> is to regard that as a “discretionary” remedy. Personally, I have trouble
> with that, but that swims against the tide.
>
> Paul
>
> --
> Paul Stanley KC
> D: +44 (0)20 7147 7340
> T: +44 (0)20 7813 8000
>
> Barrister regulated by the Bar Standards Board.
>
> From: Robert Stevens <robert.stevens@law.ox.ac.uk>
> Date: Friday, 3 March 2023 at 16:32
> 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<mailto:MHoyle@oeclaw.co.uk>>
> Sent: Friday, March 3, 2023 2:27:16 PM
> To: Paul Stanley KC
> <PStanley@essexcourt.net<mailto:PStanley@essexcourt.net>>; Robert Stevens
> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>>;
> obligations@uwo.ca<mailto:obligations@uwo.ca>
> <obligations@uwo.ca<mailto:obligations@uwo.ca>>
> Cc: birke.haecker@uni-bonn.de<mailto:birke.haecker@uni-bonn.de>
> <birke.haecker@uni-bonn.de<mailto: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<mailto:PStanley@essexcourt.net>>
> Sent: Friday, March 3, 2023 1:02:26 PM
> To: Matthew Hoyle <MHoyle@oeclaw.co.uk<mailto:MHoyle@oeclaw.co.uk>>; Robert
> Stevens <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>>;
> obligations@uwo.ca<mailto:obligations@uwo.ca>
> <obligations@uwo.ca<mailto:obligations@uwo.ca>>
> Cc: birke.haecker@uni-bonn.de<mailto:birke.haecker@uni-bonn.de>
> <birke.haecker@uni-bonn.de<mailto: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<mailto:MHoyle@oeclaw.co.uk>>
> Sent: Friday, March 3, 2023 12:32:06 PM
> To: Robert Stevens
> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>>;
> obligations@uwo.ca<mailto:obligations@uwo.ca>
> <obligations@uwo.ca<mailto:obligations@uwo.ca>>
> Cc: birke.haecker@uni-bonn.de<mailto:birke.haecker@uni-bonn.de>
> <birke.haecker@uni-bonn.de<mailto: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<mailto:robert.stevens@law.ox.ac.uk>>
> Sent: Friday, March 3, 2023 12:28:29 PM
> To: obligations@uwo.ca<mailto:obligations@uwo.ca>
> <obligations@uwo.ca<mailto:obligations@uwo.ca>>
> Cc: birke.haecker@uni-bonn.de<mailto:birke.haecker@uni-bonn.de>
> <birke.haecker@uni-bonn.de<mailto: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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