The political shenanigans involved in Ms. Isobel Oakeshott’s ‘shafting’ of ‘The Right Honourable’ Matt Hancock MP (of the last few days) – Has spurred this writer into preparing this blog post – On an issue that I really want to emphasise to contacts and clients (and which many of them – seem to be largely unaware of).

I refer to recently waking to the news that the freelance ‘writer for hire’, Oakeshott (who had ghostwritten Hancock’s ‘alternative facts’ recent revisionist history as the U.K.’s Health Secretary – during COVID) – Has, post-publication of the relevant book – Passed a huge cache of Hancock’s WhatsApp messages (which had been provided to her by Hancock for the ghostwriting task) to journalists at the Telegraph.

A source ‘close to Hancock’ told the PA Media news agency:

“[Oakeshott has] broken a legal NDA” (i.e. a Non-Disclosure Agreement).

That may well be the case – But someone didn’t legally advise him very well as to their effectiveness.

The source added:

“Her behaviour is outrageous.”

I’d suggest that’s true  – But she has a history of fairly disgraceful, unprofessional behaviour . . .

Interestingly, the publisher of Hancock’s book – Is the same Lord Ashcroft-owned business that published a ‘hatchet job’ on David Cameron – i.e. Alleging that he put his ‘member’ in a pig’s head (again – written by Oakeshott). 

What the heck did Hancock think was going to happen?!

In these circumstances, are the ‘recurring echoes’ of various dealings that I often have with contacts/clients – Where they are shocked/surprised to find (say) that after buying a document ‘from the internet’ (and usually having been prepared to ‘go as high’ – in terms of their expenditure – as a sum akin to a round of drinks) – they have to be informed that the worth of the relevant document – offers to them (usually) less than the paper upon which it is written!

Put another way – Their ‘legal document’ offers little (if any) more protection than a ‘gentleman’s agreement’ – and – ‘Surprise’, the other person isn’t behaving like a ‘gentleman’ . . .

Sadly, any 21st-century layman ‘legal-tech entrepreneur’ can copy and paste some text into a document (upon which signatures can be placed) – which looks like it might form the basis of a legally binding and enforceable agreement (and then sell it to other similar uninformed laypeople) – But there is an important second skill which qualified/authorised lawyers are trained in = Considering the subjects of both legal and practical enforceability of the relevant documentation.

in that regard, you might well be served by watching my favourite clip from Steptoe and Son – Which I often direct young lawyers to – When they need to consider legal enforceability.

By way of background, a fractious father (Albert) and son (Harold) – have decided to divide their shared house (as seen in this video clip):- 

“You May Have The Law Of Contract On Your Side – But I’ve Got The Knobs On Mine”

I can assure you that Harold (as proved to be the case) will have had considerable difficulty enforcing his perceived agreement with Albert – That he wishes to rely upon.

The first ‘problem’ is that whatever document one might have ‘in one’s possession’ – and – however legally binding it might be at English law (which is in itself a test or ‘hurdle’ to be considered/’overcome’) – the actual enforcement of a legal agreement – will in all likelihood involve a substantial expenditure on legal advice and assistance.

However much Hancock might have just earned from his appearance “in the jungle” – Such a reported sum could (relatively easily) be completely spent in a legal rights enforcement action – (Particularly where those whom one might be suing – have the ‘deep pockets’ of the inherited offshore wealth of Oakeshott’s ‘puppet master’, Mr. Richard Tice and/or the publisher, Ashcroft – Each of whom appear to have an agenda – in relation to Hancock’s actions promoting COVID lockdown).

The real/material issue which I want to emphasise (on the relevant facts) – Is that English contract law (i.e. that relevant to the apparent NDA in existence) is designed to ensure that ‘commercial men of business’ are financially compensated when a contract might be not-observed/breached – Which action (reneging upon a deal) > English law recognises is generally completely open to people (even when blatantly done in bad faith – as appears to be the case on these circumstances).

An English court will very rarely, and only in specific circumstances grant a remedy of injunction (an order to stop a breach) or specific performance (an order to perform a contract) – and – However gross the breach which Oakeshott appears to have carried out – There is (seemingly) little chance of Hancock obtaining a court order that Oakeshott should observe the NDA / not disclose anything further etc. – At risk of being imprisoned for contempt of court.

(It’s rather difficult (in these circumstances / in any event) to see how the “genie could be put back in the bottle” after the data dump has been provided to the rapacious journalists at The Telegraph.)

A court will be NO interest in the ‘hurt to Hancock’s feelings’ = “Go cry me a river, soft lad”!

If a court were to find that the relevant non-disclosure agreement (NDA) was “legally binding” (which it well might) – and – that it had been breached – then a court would try to find a ‘measure of financial damages’ reflecting the commercial loss that Hancock may have suffered.

As his book has now been published (and I’m informed, sold a grand total of four thousand/4,000 copies!), it is unlikely that the disclosure of the relevant WhatsApp messages will have any material adverse impact upon sales of that book (and Hancock’s royalties – if any).

(Indeed, it is entirely possible that the sales of the book have actually been increased (by Oakeshott’s actions) – meaning that Hancock has (definitely) suffered no financial loss.)

(One has to question whether Ashcroft has a warehouse full of the dreadful tome – Which will otherwise have to be pulped?!)

One could possibly formulate a claim based upon Hancock’s reputation having been damaged by the leak, say causing him to be unable to gain remunerated employment at the level he might desire – Although, I suspect that anyone who has followed Hancock’s recent career – Will realise ‘that bird has flown’ some time ago.

Ultimately, I suspect that the relevant non-disclosure agreement (NDA) was probably drafted for the benefit of Hancock’s publisher – and – Thus Oakeshott might well have been very unlikely to release the relevant WhatsApps before the publisher had had an opportunity to commercially exploit their contractual position with Hancock (i.e. trying to sell the book).

Once that commercial arrangement has largely run its course (as it appears to have done) – If I was advising Oakeshott (and don’t hold your breath on that happening) – I’d suggest to her that she was very unlikely to face legal redress for the action she’s taken.

A qualified and skilled lawyer – who would be asked to draft a confidentiality agreement (not so focussed upon commercial aspects/issues) to adequately protect Hancock (in these circumstances) – Might with careful thought, and then potentially have been able to create a document providing Hancock with more legal redress.

I won’t go into details, since I’m not fully aware of all the circumstances – But I rather doubt that Hancock was (independently) legally advised = he merely relied upon ‘something’ prepared by and/or for his publisher.

My initial suggestion was that there may well have been some opportunity to have included an appropriately drafted liquidated damages clause (based around the law of privacy) – Say, ensuring that Oakeshott would be required to repay her ghostwriting fee if she did disclose confidences.

I’ve subsequently discovered – That Oakeshott charged Hancock no fee for her ghostwriting services – So a good Solicitor might have been asking: “Why Not?”

The question being asked should have been: Is she doing the work for free – because she has an agenda to harm him, by gaining access to his confidential messages?

Further, the lack of payment etc. relating to the ghostwriting services may (depending upon the particular circumstances) have meant that there was no legally enforceable obligation of confidentiality, because any apparent agreement lacked “consideration” = One of the requirements for legally binding contract under English contract law.

Making a confidentiality obligation legally effective (in these circumstances) is a complicated legal position, and ultimately (at the end of the day) Tice’s choice might be that potentially having to fund a payment relating to a damages award against Ms. Oakshott – Was a relatively minor risk / cost to make his economically driven point about health lockdowns (damaging him as a commercial property landlord).

Too often, I see contacts/clients – who believe (like  Hancock) that they have the benefit of a ‘signed piece of a paper’ = A Non-Disclosure Agreement (NDA) – In relation to which I have had no prior involvement – Other than now being approached by that contact/client who is being told (when they complain about the other party’s breach):

“Make me observe it then! = You, and whose army?”

It’s a tough old world for the uninitiated – Ask Hancock . . .

I hope that the above is helpful.

If you would like to discuss the points raised in this blog post – Or if I can help in any other way – Please don’t hesitate to contact the writer.

With Regards and My Best Wishes

Mr. Dan.Johnson@EquitableLaw.com

Founding Principal – and – Business Law Solicitor

+44 (0) 7788 537 187 : U.K. Cell. (& e-)Telephone

+44 (0) 20 8780 3319 : London D.D. Landline Tel.

www.EquitableLaw.com – Solicitors For Business