So it was just banter. That is how British entrepreneur Sir Philip Green is defending his behaviour towards employees – and presumably defending his right to keep his behaviour secret with the full weight of a permanent High Court injunction. But hasn’t his statement to the Mail on Sunday (“There has obviously from time to time been some banter, but as far as I’m concerned that’s never been offensive”) rather undermined his case for such an injunction?
The essence of the case is that his behaviour, as covered by non-disclosure agreements with alleged victims, is a private matter. It comes within the English Common Law “equitable doctrine of confidence”, that is to say confidentiality, particularly applicable to the relationship between employer and employee. “The doctrine serves the public interest by encouraging trust, candour and good faith in legal relationships,” as Mr Justice Haddon-Cave expressed it in the original High Court injunction case (which Green and two associated companies lost).
One has to ask, of course, whether Sir Philip’s “banter”, was likely to encourage “trust, candour and good faith” with his employees. He insists: “I’ve got a good relationship with all my staff” – though some would seem to disagree. But the legal point is that Green and his lawyers have to establish the issue as one of confidentiality/privacy since that is the only way they can exercise power over the media to bar publication. This is the reason for his rather carefully worded (and hence rather odd) statement when his name was revealed in the House of Lords by Peter Hain:
“to the extent that it is suggested that I have been guilty of unlawful sexual or racist behaviour, I categorically and wholly deny these allegations”.
The duty of confidence may be legitimately breached if some serious wrong is thereby exposed – the public interest defence. So, in an early case defining confidentiality: “The true doctrine is that there is no confidence as to the disclosure of iniquity” (Gartside v Outram (1856) 26 LJ CH at 113). Haddon-Cave noted:
“There are three main elements of a claim in breach of confidence, namely that (i) the information has the necessary quality of confidence, (ii) it has been imparted in circumstances importing an obligation of confidence (owed by the defendant to the claimant), and, (iii) there has been unauthorised use”.
He added: “The fact that there is a contractual bar on the disclosure of information in the form of a written non-disclosure agreement does not mean ipso facto that the information has the necessary quality of confidence.”
Whether information is truly confidential may be a matter of competing public interests. There is a public interest in companies running efficiently without breaches of confidence by employees that either damage the firm’s reputation or reveal company secrets, and without encouraging breach of contracts such as the non-disclosure agreements. But there may be a wider public interest in revealing matters the company might wish to keep secret, as set out in the Spycatcher case:
“… the basis of the law’s protection of confidence is that there is a public interest that confidences should be protected by the law, nevertheless the public interest may be outweighed by some other countervailing public interest which favours disclosure” (Attorney-General v Guardian Newspapers Ltd and Others  3 All ER 545 at 659, per Lord Goff).
Green’s (and the companies’) lawyers, on the face of it, have the rather difficult job of persuading judges (when the substantive case is heard) that his behaviour somehow comes within the first category – matters where the public interest is served by suppressing news of his behaviour rather than revealing it. One can speculate that the two companies who are part of the litigation (known as DEF and GHI) would be concerned that revelations might affect their business (perhaps by customer revulsion and boycott because of the companies’ association with Green) whereas the public interest is for businesses to flourish without extraneous matters damaging them.
So any suggestion of unlawful behaviour would tend to undermine their case. The public interest might best be served by public exposure of the behaviour thus (possibly) alleged. We don’t actually know that the allegations are of criminality: paradoxically it was Green himself who floated that possibility in his “to the extent that it is suggested that I have been guilty of unlawful sexual or racist behaviour” statement.
And even more paradoxically, his latest statement (it was just “banter”) may not help his case either. The doctrine of confidence covers significant matters. Thus Lord Goff again, this time in the second Spycatcher case:
“The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia.” (Attorney-General v The Observer  1 AC 109, 281).
So which is it? Was Green’s behaviour of such seriousness that it could damage the reputations of the two companies involved in the litigation? Or was it all just banter, trivial matters that would seem therefore not to attract the protection of confidentiality?
Either way, Green himself doesn’t seem to have a leg to stand on in the courts. But the companies might. They will have to argue that the behaviour that could be revealed is not serious enough to attract a public interest argument for publication; but is also just serious enough (in terms of damaging to the companies’ reputations) for it to be “confidential” and so reasonably suppressed by the sort of non-disclosure contracts that are generally entered into in order to protect companies’ legitimate interests and put such matters behind them. It’s a very fine distinction to draw.
Among reasons why the Court of appeal reversed Haddon-Cave’s decision was this: “The Judge’s exercise of discretion was vitiated by a failure to consider the relevance of the fact that, if an interim injunction is refused, publication by the Telegraph may result in immediate, irreversible and substantial harm to the Claimant companies due to adverse customer reaction.”
A note on the European Convention
The Common Law doctrine of confidence has been modified by Britain’s adoption of the European Convention on Human Rights. Haddon-Cave had this to say about it:
“The law relating to non-disclosure applications has developed in the wake of the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR). Before the HRA came into force, the circumstances in which the public interest in publication overrode a duty of confidence were limited. The issue was whether ‘exceptional circumstances’ justified disregarding the confiden tiality that would otherwise prevail. Today the test is different. The modern law is stated below …
“Section 12(3) of the Human Rights Act 1998 gives enhanced protection to a media respondent to a non-disclosure application. This reflects the long-recognised dangers of prior restraint of the media. The balance of convenience test does not apply. Instead, the court cannot restrain publication before trial unless satis fied that the applicant is likely to establish that publication should not be allowed. ‘Likely to’ means ‘more likely than not’: the court must make its best prediction on the material before it as to the outcome at trial.
“Section 12(4) requires the court to have ‘particular regard to the importance of the Convention right to freedom of expression’. Section 12(4)(a) extends the requirement to have “particular regard” to three matters: (i) what is available to the public, (ii) the ‘public interest’ in publication and (iii) any relevant privacy code. The IPSO Editor’s Code is one such relevant code.”