On 23 October 2018, the Court of Appeal handed down a judgment granting an interim injunction to restrain a newspaper from publishing information that may have been procured in breach of a Non-Disclosure Agreement. In doing so, it allowed the Claimants’ appeal and overturned the decision of the lower court. The decision is reported under ABC & Others v Telegraph Media Group Ltd  EWCA CIV 2329.
The Claimants were two companies in the same group and a senior executive of that group. Five employees of group companies had made allegations of ‘discreditable conduct’ by that executive. Three of the five brought proceedings in the Employment Tribunal.
In all five cases, the complaints were ultimately compromised by settlement agreements, under which substantial payments were made to the complainants. There were terms in each of the agreements under which both sides agreed to keep confidential the subject matter of the complaints themselves and other associated matters, including the amounts paid by way of settlement (the “NDAs”).
On 16 July 2018, a Daily Telegraph journalist contacted the Claimants with a view to obtaining their comments on a story which it was proposing to publish about the complainants’ allegations.
The Claimants sought an injunction against the publication of the newspaper report stating that information had been obtained from the complainants themselves in breach of the settlement agreements, or by other employees who were aware of the information and of the NDAs.
The Court concluded:
1. It is likely that substantial and important parts of the information which the Telegraph wished to publish were passed to it in breach of confidence and that it was aware of the breach.
2. There were factors that needed to be balanced against the Telegraph’s claim that the allegations were “reasonably credible”. This included that some of the allegations were addressed and rejected in detail by the Claimant companies; that the most serious allegations had been denied and the settlement of the ET claims meant that the opportunity to have their truth determined by an independent tribunal had been lost; and that the NDAs created difficulty for the Claimants in rebutting the Telegraph’s allegations, given they were equally bound by them.
3. The information already in the public domain does not include the most serious elements of the complainants’ allegations.
4. Although it was important to note the importance of freedom of political debate, the right of expression, the essential role played by the press in a democratic society and the importance of public concern about misbehaviour in the workplace, it is also important to recognise the legitimate role played by non-disclosure agreements in the consensual settlement of disputes. There was also no evidence that any of the settlement agreements were procured by bullying, harassment or undue pressure by the Claimants. In particular, the complainants in each case received independent legal advice prior to entering into the Settlement Agreements.
5. There was a real prospect that publication by the Telegraph would cause immediate, substantial and possibly irreversible harm to all of the Claimants. The Court of Appeal referred to the case of Cream Holdings where Lord Nicolls stated that when considering what is “likely” for section 12(3) of the Human Rights Act 1998, the court should not ignore the seriousness of the possible adverse consequences of disclosure prior to a disputed issue of fact being resolved at trial.
The Court of Appeal allowed the appeal and ordered a speedy trial.
The senior executive of the group has since been named by Lord Hain under parliamentary privilege and his identity has been widely reported in the UK media.