You may be familiar with the term non-disclosure agreement (or NDA) in relation to the rich and the famous wanting to keep alleged wrongdoings out of the public eye. However, as is becoming increasingly common, active NDAs can be and are often disregarded apparently in the interests of pursuing justice.

Indeed, Isabel Oakeshott, has stated that she released the WhatsApp messages between Matt Hancock and officials from the height of the Covid-19 pandemic as it was in the “public interest”. But is this a valid defence to breaching the terms of the NDA, and what can Mr Hancock do about Ms Oakeshott’s seemingly prohibited disclosure?  

A non-disclosure agreement (or NDA) is a legally-enforceable contract that is ordinarily used to prevent unauthorised disclosure of confidential information and trade secrets. Such information is usually of extreme importance to one of the parties to an NDA, and for that reason the other party is, in effect, sworn to secrecy, not only during the course of the parties’ relationship but also after that relationship has ended.

Breaching an NDA can have serious consequences, and a person who discloses the protected information may find themselves on the other side of court proceedings for breach of confidence, misuse of private information, breach of contract or copyright infringement to name a few.

To disclose in the “public interest” is not a valid defence to the latter heads of claim suggested above. However, there is what’s known as the ‘iniquity defence’ in breach of confidence or misuse of private information claims, and the courts recognise that in certain circumstances public policy (or interest) can override implied or express duties of confidentiality, particularly where there are allegations of covering up a crime.

To be successful in any claim, Mr Hancock would also need to prove that he has suffered ‘loss’ as a result of the messages being released and it is unclear at this stage what tangible damage he has suffered. As batches of these messages continue to be released almost daily, Mr Hancock could in the interim seek an injunction to prevent further revelations being made. 

It remains to be seen therefore what steps Mr Hancock may take to enforce the NDA or prevent further publication of messages which are not yet in the public forum (though the leaked messages contain 2.3 million words spanning years of the pandemic). 

The Covid Inquiry

Oakeshott claims that she decided to release more than 100,000 private messages because “we may have to wait many years” before any conclusions are reached by the public inquiry into the Covid pandemic, which she suggested “may become a colossal whitewash”.

Underpinning the ‘whitewash’ claim is the concern already voiced by MPs and peers that the composition of core participants in Module 2 of the UK Covid Inquiry, which will examine the decision-making by the UK Government, appears “heavily weighted towards” lockdown advocates, and that the “current narrow range of voices will be ill-equipped to ask the right questions”.

Juxtaposed against what Oakeshott describes as a need for “urgent answers”, are her observations that the Inquiry “does not appear to have any specific timeframe or deadline” and “will drag on forever”. Whereas the WhatsApp messages leak, she says, is an “amazing way to short-circuit a never-ending public inquiry, cutting straight to the truth.”

The Chair of the Covid Inquiry, Baroness Heather Hallett, rejected this at the second preliminary hearing into Module 2, stating that the Inquiry “will not drag on for decades” and “there will be no whitewash”.

The “minute-by-minute, hour-by-hour contemporaneous record of what was going on at the heart of government”, is a critical reference point. Particularly where not all who played a key role in critical decisions “can be relied upon to volunteer unflattering information”.  

Lead Counsel to the Inquiry has stated that reluctance to engage with the full scrutiny of the Inquiry “is likely to be a live issue and soon”, using the example of a Parliamentarian who, when faced with statements made on WhatsApp messages which conflict with what was said in Parliament, may decline to repeat in a witness statement what they stated on the record.

Will the Inquiry consider the WhatsApp Messages?

Generally, the Inquiry will make written requests for documents or witness statements pursuant to Rule 9 of the Inquiry Rules 2006, known as a ‘Rule 9 request’. The Chair has powers of compulsion of documents and evidence under section 21 of the Inquiries Act 2005 which she can exercise if a response to a Rule 9 request is refused, incomplete, or not provided by the deadline. 

A formal request for evidence has been issued to Matt Hancock by the Module 2 legal team, and his written statement is due by the end of April 2023. A request for a written statement must include a description of the matters or issues to be covered by the statement, and those made of key decision makers, including Government ministers, are said to be “long and complex”.

At the second preliminary hearing for Module 2, Lead Counsel to the Inquiry confirmed, “we have been making Rule 9 disclosure requests for WhatsApp messages since September of last year. Those requests have in fact been made across Whitehall to Government departments, individual ministers, civil servants, scientists and specialist advisers”. The Inquiry has “already received messages from over 60 WhatsApp groups and there will be many more to come” as groups and messages are received, gaps in material identified and further questions raised.

The Chair stated that before it completes “any kind of examination of the role of the previous Secretary of State for Health”, the Inquiry will make every effort to ensure that it has investigated all the Hancock messages and their context.

In light of the WhatsApp leak, the Inquiry is encouraging anyone who has relevant information to give, whom the Inquiry has not yet approached, to contact them.