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Awkward! Allen & Overy partner stumbles in face of grilling by MPs over non-disclosure agreements

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As committee publishes Harvey Weinstein NDA

In a dramatic session of the Women and Equalities Committee, a lawyer from Allen & Overy were asked some VERY awkward questions about the role of lawyers in drafting and concluding non-disclosure agreements (NDAs).

During intense questioning (which felt at times more like a cross-examination worthy of a top QC) by MPs Philip Davies and Maria Miller, the lawyers were grilled about whether clauses in NDAs could, by limiting what an individual could say about events in the past in any subsequent criminal legal process, pervert the course of justice.

One of those questioned was Mark Mansell, a partner and employment specialist at Allen & Overy. He conceded that an NDA could be viewed that way but denied that he had ever drafted such a clause. Asked by Miller if he would ever “draw up an agreement that would potentially be seen as perverting the course of justice”, he stated:

“No, I would never do that. In producing an agreement I would always make it clear that an individual’s legal and regulatory obligations were paramount and nothing in the agreement would override those.”

In what became a scathing attack on the legal profession, during his questioning of Mansell, Davis stated that if NDAs were stopping individuals from disclosing details of the conduct of perpetrators of unlawful behaviour, then they were, at best, unethical: “I was always brought up to tell the truth, the whole truth and nothing but the truth… [the use of these clauses in NDAs] flies in the face of telling the truth.” Mansell’s responses to these comments and questions, in all their awkward glory, can be viewed on parliament’s website.

The latest comments from across Legal Cheek

The parliamentary session came about following an article published at the end of 2017 in the Financial Times , and subsequently reported by Legal Cheek. This highlighted the process by which Weinstein’s former London assistant, Zelda Perkins, was asked to sign an NDA following an allegation of sexual harassment made against the movie mogul by her in 1998.

A&O was the “big cheese” firm (as Miller labelled the magic circle firms) which had advised the US entertainment company co-founded by Weinstein, Miramax. Perkins was, at the time, represented by media specialist Simons Muirhead & Burton (SMB). She accepted £125,000 in damages as part of the settlement with Miramax.

The committee set up an inquiry into sexual harassment in the workplace including “the advantages and disadvantages of using non-disclosure agreements in sexual harassment cases, including how inappropriate use of such agreements might be tackled”. The inquiry also heard from Perkins herself as well as from Tamara Ludlow, a partner at SMB, Max Winthrop, chair of the Employment Law Committee at Chancery Lane, Suzanne McKie QC, founder of Farore Law, and Gareth Brahams, chair of the Employment Lawyers Association.


UPDATE 16:44 Wednesday 28 March

This piece has now been updated to reflect the fact that the committee has subsequently published part of the NDA signed by Weinstein’s former assistant.

Conditions of this document include: if Perkins is to visit a doctor “in connection with the conduct alleged” she must seek a confidentiality agreement from the doctor; and not to take part in any interviews about her time at Miramax or the company generally. The NDA also says:

“You shall not disclose any Confidential information except to any entity if required by legal process (for the avoidance of doubt any pleading or other step in a civil action that has been commenced by you shall not constitute legal process for the purpose of this clause), but you will first, in the case of any civil legal process and where reasonably practicable in the case of any criminal legal process, give not less than forty eight (48) hours prior written notice to the Company through Mark Mansell at Allen & Overy before making any such disclosure and if any disclosure is made you will use all reasonable endeavours to limit the scope of the disclosure as far as possible.”

Mansell’s name appears in the NDA multiple times.

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22 Comments

Anonymous

How did he stumble? The article makes no mention.

(20)(3)

Ciaran Goggins

Awkward! Huge police corruption case next month.

(5)(1)

Anonymous

At first he tried to say goodbye and he choked. Then he tried to walk away and he stumbled.

(36)(0)

Anonymovs

… although he tried to hide it, it was clear

(10)(0)

Anonymous

… MY WORLD CRUMBLES WHEN YOU ARE NOT HERE

(11)(3)

Anonymous

Incidentally I used to think the lyrics to that were ‘I wore goggles when you were not there’.

(9)(1)

anon

funny that. I always thought it said, “I blow bubbles when you are not here”. We have all been thoroughly deceived.

(5)(0)

Anonymous

What? The lyrics aren’t googles?

Every day’s a school day, thank you.

(2)(0)

Anonymous

This is the biggest musical upset for me since I learned a few years back that Natalie Imbruglia actually covered ‘Torn’ from a 90s grunge band.

(5)(0)

K&E rat.

You need to watch the committee hearing to understand. Too much to include within one article.

(2)(4)

Anonymous

But there is nothing in the article about it. If you can’t include anything in the article then don’t include it in the headline.

(17)(0)

Not Amused

The level of disinformation and general ignorance over contract law NDAs, amongst people whom we all need to be vaguely educated about law, should be the national scandal.

(5)(0)

Stormy Daniels

Not everyone thinks that is a bad thing…

(1)(0)

Anonymous

I saw you nekkid

(3)(0)

Anonymous

Are NDAs enforceable in English law? What’s the general view?

(0)(0)

Harvey

What do you mean are NDAs enforceable in English law? You Sir, have obviously never signed an NDA.

(2)(0)

Anonymous

Enforceable? Mostly. Enforced? No

(3)(0)

Anonymous

You lost all credibility with that typo in the first paragraph.

(7)(0)

Anonymous

I dont agree that the actual effect of the document was to put her at risk of perverting the course of justice. The operative words are “limit disclosure..to the extent possible”. Clearly that caveat is highly significant. It is tautologous to then suggest that the effect is to prevent a disclosure such as to amount to perverting the course of justice.

I accept, however, that an individual may struggle to understand the implication but that is a matter for their legal advice surely? Ultimately no one is forced to enter into an NDA and the trade off is the cash settlement/conditions agreed. It seems to me the lawyer from A & O was treated somewhat harshly by the suggestion that the clause in question amounted to potentialy causing the signatory to pervert the course of justice.

The real issues seem to be the other points made by the panel, all of which were valid. It is unfortunate that she got crap advice from SMB.

(7)(1)

anon

hey your honour.

(0)(0)

Anonymous

The current furore over NDAs is extremely short sighted. NDAs are in the victim’s interest because they generally facilitate a substantial pay-off. Ban NDAs and the perpetrators have much less of a reason to settle. You may reply, “well fine, the victims will go through court and prevail in a cathartic public battle”, but the simple truth is that they settle because litigation is expensive, emotionally draining and very often carries a, at most, limited chance of success (even if the victim feels certain they were wronged). They can’t, however, have their cake and eat it, by accepting hush money and then trashing the perpetrator’s reputation.

I agree that arguably they’re bad for society as a whole, because they stop the perpetrator being “outed” and thus endanger future victims, but in a free society you have to allow the victim the chance to make the bargain.

One thing that does sound sensible is banning forward looking NDAs, as no one can reasonably be expected to make an informed choice about conduct which has not yet happened.

(9)(2)

Anon

“She accepted £125,000 in damages as part of the settlement with Miramax.”

Those aren’t “damages”. They are neither liquidated, nor court awarded. LC lowering the bar for legal reporting yet again.

(12)(0)

Comments are closed.

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