Sir Philip Green’s victory in the Court of Appeal, granting him anonymity by way of a temporary injunction, proved to be very temporary indeed – less than 36 hours to be precise. The injunction related to allegations of sexual harassment, racial abuse and bullying which had been silenced through the use of binding legal contracts, known as non-disclosure agreements (NDAs). The Telegraph wanted to publish the details in addition to naming him as the alleged perpetrator. Green is reported to have spent £500,000 on legal advice from Schillings in relation to the injunction – each hour of his short-lived anonymity therefore cost him around £14,000. Small beer for a man reported to be worth around £4bn by Forbes.
As one of Britain’s best known businessmen, Green is chairman of Arcadia Group, the retail clothing company which includes several UK high street chains: Topshop, Topman, Wallis, Evans, Burton, Miss Selfridge, Dorothy Perkins, and Outfit. After selling BHS for £1 In 2015, he was branded “the unacceptable face of capitalism”. BHS then went into administration leaving a £571m shortfall in its pension fund. In 2016, after a damning report by British MPs found that he had extracted enormous sums from BHS and left the business on “life support”, Green agreed a £363m cash settlement with the Pensions Regulator to plug the gap.
At the heart of the injunction granted by the Appeal Court was Green’s use of NDAs which were used to silence five women. His cover was blown, however, only a day and a half after the injunction was issued against the Telegraph preventing them from reporting his name or information about the NDAs. Lord Hain decided to name Green by using Parliamentary privilege which, according to the UK Parliament website, ‘grants certain legal immunities for Members of both Houses to allow them to perform their duties without interference from outside of the House. Parliamentary privilege includes freedom of speech and the right of both Houses to regulate their own affairs.’
In defying the injunction, Hain told the House of Lords: “Having been contacted by somebody intimately involved in the case of a powerful businessman using non-disclosure agreements and substantial payments to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying which is compulsively continuing, I feel it’s my duty under Parliamentary privilege to name Philip Green as the individual in question, given that the media have been subject to an injunction preventing publication of the full details of a story which is clearly in the public interest.”
The Telegraph expressed their delight, although they are still bound by the injunction. While the judges undoubtedly hated their authority being undermined in this way, they could not say so publically. But lawyers could – and their Tweets soon followed.
James Turner QC: “What a disgraceful abuse of Parliamentary privilege to negate what was only an interim injunction that had been granted pending full judicial (and fair) consideration of the matter.’ Simon Myerson QC: ‘Hain’s self-indulgence sends the signal that if your connections are good enough, you will, literally, be privileged (have a private law applied to your case) & the normal process of law will be circumvented for you. @Telegraph should be ashamed. Entitlement in action.’ And Stefan Cross QC: ‘I think Lord Hain was wrong. Now we’re stuck with a really crap CoA decision that can still be used by other shitty businessmen until parliament changes things which is highly unlikely.”
In response, Green issued a statement: “I am not commenting on anything that has happened in court or was said in Parliament today. 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. Arcadia and I take accusations and grievances from employees very seriously and in the event that one is raised, it is thoroughly investigated. Arcadia employs more than 20,000 people and in common with many large businesses sometimes receives formal complaints from employees. In some cases these are settled with the agreement of all parties and their legal advisers. These settlements are confidential so I cannot comment further on them.”
Meanwhile, Conservative vice-chairman James Cleverley commented on Twitter that “people must now realise that injunctions and super-injunctions are nothing more than a good way to part with large sums of money and a bad way to keep things secret”. Nevertheless, the debate over the rule of law and who should decide what is in the public interest – parliament or the judges – will continue to rage in the weeks and months ahead.
But what about those NDAs? Well the track record shows that they often don’t succeed in the long run because people talk. The bigger the story, the more they talk. Remember Donald Trump and the much-publicised NDA with Stormy Daniels? That didn’t work out too well. Even so, lawyers have been ingenious in developing NDAs to resolve clients’ disputes, most notably when allegations of harassment or discrimination are involved.
Of course, many NDAs have an entirely legitimate purpose, such as preventing the leaking of commercially sensitive information by former employees. ‘The best way to keep something confidential is not to disclose it in the first place,’ advises the government’s Intellectual Property website which advocates the use of NDAs as a means of protection.
It is the misuse of NDAs to silence people who have been subject to bullying, harassment or worse that is the problem: a de facto early settlement of a claim avoids any adverse publicity for the perpetrator. Meanwhile victims are persuaded – often with tempting sums – that silence is the best option. The Women and Equalities Select Committee chair Maria Miller MP has called for a root and branch review of their use and legality, in the wake of her committee’s report on sexual harassment in the workplace.
Not before time. Sexual harassment can be stopped only by exposure, not by secret payments and NDA contracts that bind victims to silence. Experience tells us that predators are serial offenders – just as one victim leads to another so one NDA leads to another. The catalogue of Harvey Weinstein’s victims and the NDAs that followed show that they empower perpetrators, making them feel invulnerable.
In preventing harassment and bullying, the law has an important role to play. So do lawyers.
Bound by professional obligations, they must recognise that sexual harassment in particular can be a criminal act. Using an NDA is, therefore, unacceptable and unethical. The Bar Standards Board and the Solicitors Regulation Authority are endeavouring to tighten and restrict the use of NDAs. Parliament seems set to follow suit in preventing their misuse.
Although NDAs can be very difficult to enforce, a range of prominent business people and public figures have deployed them to buy individuals’ silence in a manner which is wholly reprehensible: the files of newspaper editors are filled with stories which they cannot publish. In the current climate, the death of the NDA is much exaggerated but their application does need to be severely curtailed and confined to appropriate legitimate use. That apart, NDAs should be consigned to history as an abuse of power by those who can afford expensive lawyers in order to buy their victims’ silence.
Dominic Carman, journalist, writer and legal commentator.