Full case report
Dominic Raab MP v Associated Newspapers Ltd
Reference  EWHC 3375 (QB)
Judge Tugendhat J
Date of Judgment 15 Dec 2011
Libel – application for stay – strike out – abuse of process – overriding objective – Art 10 ECHR – ability to defend a claim – Dominic Raab MP – Associated Newspapers Ltd – employment dispute – settlement agreement – confidentiality clause
C had worked for David Davis MP as his office manager. E, a female researcher, also worked for Mr Davis. C was her line manager. In 2007 there was a dispute conerning E’s employment. She brought proceedings in the Employment Tribunal. Her claim was settled by means of a Compromise Agreement. This included a confidentiality clause by which the parties agreed not to discuss events connected with E’s employment.
In 2011 the Mail on Sunday published an article which made various allegations about C’s behaviour towards E in 2007. It was headed “Payout for Woman Who Claimed Workplace Bullying Under Raab”. It stated that E had received a payout of £20,000 following the termination of her employment with Mr Davis.
C sued in libel.
D wished to interview E about events during her employment in order to ascertain whether to plead a justification defence or not. It asked the C to agree to waive the confidentiality clause. He refused to do so but made it clear that once a justification defence was pleaded which put into issue events during E’s employment, the confidentiality clause would not restrict E (or C) from discussing the relevant information in so far as it was relevant to the libel claim.
D applied for a stay/strike out of the claim on the grounds that C’s actions amounted to an unlawful interference with its Art 10 ECHR rights to freedom of expression because D was being prevented from being able properly to defend the claim. C’s actions were therefore in breach of the overriding objective and amounted to an abuse of process.
Did C’s refusal to waive the confidentiality clause amount to an unlawful interference with D’s Art 10 ECHR rights to freedom of expression, such that the claim ought to be stayed and/or the claim form and the particulars struck out?
D’s Application was dismissed.
There was no evidence that D was prevented from pleading a justification defence to this claim because E would not speak to it until the confidentiality clause ceased to have effect (i.e. until after justification was pleaded) . It followed that it could not be said that there was any substantial interference with its Art 10 ECHR rights. The newspaper was free to plead justification but it would have to take the risk that, once pleaded, E’s evidence might not support such a defence.
The question of whether the public interest in interviewing E prior to pleading justification outweighed the rights of parties to the settlement to keep the confidentiality obligation in place depended on the facts. On the basis of the evidence provided to the Court, D had failed to establish that the public interest in D interviewing E prior to pleading justification was sufficient to do so in this case.
Justice therefore did not require that the confidentiality rights should be compromised prior to the D pleading justification.
Furthermore the court concluded that to strike out the whole claim would be a disproportionate interference with the Claimant’s right of access to the court.
The court upheld the right of parties to enter into effective confidentiality agreements in order to settle legal proceedings; the court would not permit such agreements to be interfered with because a newsaper later published allegations concerning the subject matter of such an agreement: “If a party minded to settle litigation knows that any confidentiality agreement included in the terms of settlement is liable to be set aside if a newspaper subsequently publishes a report of the proceedings in respect of which he may wish to sue for libel, but which the newspaper cannot claim to be true on the facts available to it, then that would tend to make parties less willing or able to settle disputes.” 
Russell Jones & Walker; Taylor Wessing
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