So, I was drafting the NDA in the shadow of this swathe of publicity.
Actually, the cool air of caution is a salutary backdrop to the drafting of these agreements.
Family and personal break-ups, and the search for apt solutions, are in my experience not binary, they are most often grey rather than black and white. They are blurred pictures, rather than crisp and defined. They are precisely the territory of a subtle and bespoke NDA.
My thesis is this: There is a proper time and a proper place for an NDA in our family cases.
My client was a woman, left emotionally and economically vulnerable after a five-year romantic relationship with one of Europe’s richest men. He had promised her a vast financial gift upon the end of the relationship and was being slow—too slow—in delivering.
And that’s where I came in.
What other remedy did my client have? None. At least, no legal remedy. England does not (yet) have any system for protecting partners who exit a cohabiting relationship without children.
I respectfully consider that the payer’s lawyers in this case made a serious mistake in the negotiation of the contract. They were not members of resolution, the body of family lawyers set up to deal with family cases in an amicable manner (a partner in my firm was one of the subscribing members of that organization). That’s always a worrying sign in these cases. So, the payer’s lawyers treated this as a litigation matter. This was a case done by them without a smile.
The end result was a nasty taste in my client’s mouth, a needlessly bitter end to the relationship. It was an extraction of money rather than a soft landing, and a disrespectful way of putting the relationship to bed.
The contents of the NDA, in which I was assisted by experts from my media and intellectual property teams, were:
- payment of cash to my client (by instalments) to police her good behavior, no doubt;
- arbitration clauses in the case of subsequent dispute, obviously, so as to avoid any publicity that could arise out of any subsequent court case;
- my client contracting to respect the confidentiality of the couple’s private life. That is perfectly appropriate. The article 8 rights of respect for privacy and for family life enshrined by human rights legislation trump the article 10 rights relating to publicity. The seminal Supreme Court case of PJS  UKSC 26 is the ringing authority for this proposition. Kiss and tell stories are not in the public interest. Unlike King Canute, privacy laws can command the waves of publicity to subside;
- my client contracting to inform two named lawyers in my firm if any members of the press ever showed interest in her story; and
- payment of all my client’s legal costs.
Do I have regrets? Yes, for what it is worth I found it distasteful to watch the payer’s IT experts combing through his client’s computer and iPhone to test the veracity of her disclosure of the confidential material. Sure, the cybersecurity protections are understood, but did the payer seriously think that she would breach the confidentiality agreement? I doubt it. Another example of over-lawyering in my view.
So, I end this article as I started it, in defense of the appropriate use of NDAs.