It may be appropriate for the agreement itself to concretely determine the information not prohibited by the confidentiality clause. In our response to the recent consultation with the Ministry of Business Energy and Industrial Strategy on Confidentiality Clauses, we noted that several stakeholders have proposed that the agreements contain, in clear and clear language, disclosures that cannot prohibit confidentiality clauses. It is important that we take into account not only the legal importance of the clause, but also its impact on all those associated with it. Therefore, the clause should not provide for and the person who is supposed to give the noA consent should not give the impression that such a statement or disclosure is prohibited. But while much of the media`s attention has focused on the use of NDAs in cases of sexual harassment, their use is not limited to these cases. Confidentiality clauses are a common feature of commercial and other dispute settlement agreements. The concerns expressed about the NOA in cases of sexual misconduct also apply to its use in these agreements. We recognize from the Solicitors Regulation Authority (SRA) that NDAs and confidentiality clauses are often used legally. However, it appears that they are often used regularly in agreements to regulate all types of rights and, all too often, standard clauses that are inappropriate are used when there is no justification. “The court was not asked whether the clause was applicable, but whether it was an attempt to prevent Mr. Cosser from filing a complaint [to the SRA], particularly if he believed he would face a heavy financial liability for breach.” In March 2018, we issued a warning message on the use of NSOs, which shows how our principles are taken into account when developing such agreements. Its content also applies to confidentiality clauses contained in agreements that resolve all types of disputes.

We are aware that these clauses should not be enforced either: in the Solicitors Regulation Authority/Alexis Maitland Hudson case last year, the Solicitors Disciplinary Tribunal considered a confidentiality clause governing a commercial claim.