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Any lawyer - particularly any lawyer regulated by the SRA - who has ever negotiated a settlement involving a confidentiality provision needs to read the first 44-pages of this SDT judgment. https://www.solicitorstribunal.org.uk/sites/default/files-sdt/Memorandum%20of%20Stay%20%26%20Appendix.pdf
I’ve never read a case where one party (here the Respondent, represented by the estimable Timothy Dutton CBE QC) was so obviously correct, and the other (the SRA) so obviously wrong. It concerns a negotiated NDA (with both sides legally represented by proper lawyers).
There is a relatively boilerplate Confidential Information clause, with express carve outs for compelled disclosure in legal proceedings & safeguards when disclosing to medics (e.g. must be a certified medic). No specific carve out for reporting to the police.
Nobody suggests that the NDA did (legally) prevent a report to the police or seeking medical help: any clause would be unenforceable (illegal/contrary to public policy). So the case was that it might nonetheless ‘deter’ those steps (even though complainants had legal advice).
The solicitor for the person seeking confidentiality apparently did or should have appreciated (on the SRAs construction that such conduct was purported to be prohibited) that there was a risk the counterparties might be deterred, and so to facilitate the NDA was a breach of duty
It simply cannot be right that a lawyer is ever under a duty to expressly articulate in an NDA any disclosure that can be made as a matter of law, and that an NDA would be unenforceable if (on some construction) if it tried to prohibit. I’m not even sure that is arguable.
Anyway, maybe to avoid the attention of the SRA, all future NDAs should include in express contractual language the right to make disclosure in the confessional, in correspondence to Members of Parliament, the right to include allegations on spoiled ballots at elections...
