Since the journalist Isabel Oakeshott transferred to the Daily Telegraph over 100,000 Whatsapp messages that she had received “in confidence” from Matthew Hancock MP (ex-Secretary of State, Department for Health and Social Care), the airwaves and social media channels have been alive with an intriguing legal and moral debate.

Was it lawful for Ms Oakeshott to deal with the messages in this way when there was a confidentiality clause in her writing agreement with Mr Hancock (she is co-writer of his recent book “Pandemic Diaries: The Inside Story of Britain’s Battle Against Covid”). Was it morally justifiable to do so?
Our concern as solicitors is to consider the legal position. But morality is also a factor for the courts. Judges have to balance issues and will often resist making a decision that is not “conscionable” (meaning “proper” or “in accordance with their conscience”).

Ms Oakeshott argues, of course, that her conscience is clear: the Whatsapp messages contain information that should be known in the public interest. The Daily Telegraph argues the same point and says that even though a public inquiry will see and consider these messages, there is good reason why the public should be allowed to read them at any time, even in advance of the hearings that will take place.

Mr Hancock would argue that the circumstances in which he was not even advised of the transfer of his information to the newspaper show that this was not done with integrity.
The legal question is fairly straightforward. Does the fact that this information was confidential and subject to a contract that seeks to keep it confidential override the right of the public to see it?

As ever, the circumstances are important. Ms Oakeshott appears to have passed all of the messages to the Daily Telegraph who have then selectively been making front page news stories out of the content for two weeks or so. Would it have been less offensive if the disclosure were more focused and done for a very specific reason? Although the publication has resulted in extensive discussion around public health and administration, there has also been a lot of less serious interest in the way that Conservative politicians communicated with each other and in the personal and political rivalries that were going on back in 2020 and 2021.
The debate is, we think, unlikely to be settled in court. The cost and risks to Mr Hancock are just too great. Publication was a carefully calculated risk that was considered by Ms Oakeshott, the Daily Telegraph and its legal team before they proceeded.

However, there is one additional and important point that has received less discussion: is Mr Hancock not proceeding because it is unclear what remedy he would get, if he were successful in an action for breach of confidentiality in contract law?

Clearly he has decided not to seek an injunction to prevent the Daily Telegraph from continuing the publication. So a court would have to give him a “compensatory” award. This would either be an account of the profits made by Ms Oakeshott (and possibly the Daily Telegraph) or restitutionary damages. One way of calculating these damages is known as “negotiating damages”: what is the payment that Mr Hancock would have accepted in order to release Ms Oakeshott from her confidentiality obligation?

Mr Hancock might find that Ms Oakeshott has received significant sums from the newspaper not only for her journalism but also for the information that she has supplied. Other newspapers have been looking on with envy in recent weeks as the Daily Telegraph has been able to champion the story and, one assumes, sell newspapers and possibly subscriptions. Mr Hancock would also argue that no amount of money would have caused him to release this information to a newspaper, to which the response would be that he was not reluctant to enter or approve of the publishing contract for the book containing very similar information.

We can only speculate on Mr Hancock’s reasons for pulling his punches. It may be that his advisors have told him to move on given that the public inquiry is likely to be a gruelling event in itself when the same information will come out anyway.

So all in all, the result seems very unsatisfactory for Mr Hancock. But one perhaps unexpected outcome from this debate is that confidentiality clauses, which for some years and in particular in the context of employment contracts have been criticised, are now something that many feel should be better protected.