Non-Disclosure Agreements in Scotland

Non-Disclosure Agreements (NDAs) were originally used to keep commercial business information and trade secrets confidential.

In more recent years, the use of NDAs to try to silence allegations of abuse and harassment has generated significant publicity. There is no sign of that controversy abating.

Earlier this month, the Arbitration service Acas published guidance to firms and workers about NDAs, including how to avoid misuse. The point is made that NDAs cannot prevent an individual from reporting wrongdoing in the public interest, known as making a protected disclosure or ‘whistleblowing’. This could include disclosing a criminal offence, dangers to health and safety, or failure to comply with a legal obligation. NDAs also cannot prevent an individual from taking a matter to an employment tribunal. The advice given by Acas to employees is to consult a trade union or lawyer when considering signing an NDA.

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NI to follow rest of UK with Domestic Violence Bill

The restoration of the power sharing executive in Northern Ireland has had a spectacular impact on its legal sector.  We have already reported on how the much anticipated Redress Board was up and running with High Court Judge, A Colton appointed as president.  Last week also saw the first call of new QC’s to the Bar of Northern Ireland; a move held up by the lack of the Executive.

The new Justice Minister has now confirmed that she is to implement legislation to mirror the domestic abuse legislation activated in England & Wales in 2015 and in Scotland in 2019. The proposed Domestic Abuse Bill is currently with the legislative drafters and it is hoped that the final document could be brought forward within the next few months and with the co-operation of the parties and full Executive it is hoped that the Bill could be introduced by April or May 2020.

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Safer Internet Day

Today – 11 February 2020 – marks  Safer Internet Day which is annual celebration of the safe and positive use of digital technology for children and young people.

Safer Internet Day is a global event which is coordinated in the UK by the Safer Internet Centre. The Safer Internet Centre is a partnership of three leading organisations: Childnet InternationalInternet Watch Foundation and SWGfL with a shared mission to promote the safe and responsible use of technology for young people

The aim of Safer Internet Day is to highlight positive uses of technology and to explore ways in which to create a better and safer online community. It also seeks to enable young people to feel more confident about what to do if they are worried about something online.

The global theme for Safer Internet Day is “Together for a better internet”, with this year’s UK campaign entitled “Free to be me.” This will look at how young people manage their online identity, experiment and express themselves.

Safer Internet Day aims to see millions of young people, schools, and organisations across the UK explore online safety and the theme of ‘free to be me’.

It is supported by the Government, schools, charities, the police, football clubs and celebrities some of whom are hosting events to promote discussion on the safe, responsible and positive use of technology. There are also a number of online quizzes and top tips designed to ensure young people are well equipped to keep themselves safe and report any online concerns that they might have.

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Irish Jury awards €1 million in damages to woman raped by her former boyfriend

In July, 2015 Magnus Meyer Hustveit pleaded guilty at the Central Criminal Court in Ireland to one count of rape and one count of sexual assault committed against his 28-year-old girlfriend between 2011 and 2012.

Hustveit who is Norwegian had sent an email to his former partner, Niamh Ní Dhomhnaill where he admitted to using Ms Ní Dhomhnaill body for his sexual gratification while she was asleep. At the time Ms Ní Dhomhnaill was taking medication that made her sleep heavily.

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Tusla guidelines provide that suspects/alleged abusers may be permitted to interview complainants

In June, 2019 Tusla, the Irish Child and Family Agency set out how it intended to respond to new figures that showed the number of cases of retrospective abuse awaiting allocation to a social worker had overtaken the number of cases that had been allocated.

Figures published in January, 2019 by Tusla showed that the number of unallocated cases overtook the number of cases that had been allocated for the first time.

The number of monthly referrals of such cases peaked in January, 2019 at 321, and in February, 2019 the number of open cases of retrospective abuse stood at 2,824.

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Redress in Australia – slower than anticipated – changes to be made

On 29 November 2019, the Australian Minister for Families and Social Services, Senator the Hon Anne Ruston, hosted the Ministers Redress Scheme Governance Board, which is a meeting of the relevant Ministers with responsibility for the National Redress Scheme (NRS) in their state or territory.

Those in attendance noted that while redress has been paid to several hundred survivors to date (975 as of 03/01/2020) the administration of the NRS is not providing the fast, simple and trauma-informed response survivors deserve.

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Act or pure omission?

Strike-out refused in case involving alleged pure omission

The implications of the Supreme Court judgment in CN & GN v Poole BC are slowly being decided.

In CN, Lord Reed (giving the single unanimous judgment of the Supreme Court) emphasised the distinction between causing harm (‘positive acts’) and failing to confer a benefit (‘pure omissions’).  A defendant owes a duty of care if it causes harm, or if the matter falls under one of three exceptions.  A defendant will not owe a duty of care (the ‘no duty’ rule) if the case involves a pure omission and none of the exceptions applies.

The main questions since CN are (1) how to differentiate between causing harm and failing to confer benefit, (2) how the courts will look at the exceptions, and (3) whether the courts are prepared to strike out some cases.

The third question has recently been considered in the High Court in the case of Chief Constable of Essex Police v Transport Arendonk BVA [2020] EWHC (QB).

A claim was brought by the owner of cargo stolen from a lorry parked in a secluded lay-by at night.  The lorry had been left there whilst the police held the driver on suspicion of drink driving.  The owner argued that the police were liable, because they had assumed responsibility for the cargo – in that they knew about theft of cargo in the area – but took no step to prevent it.  The police force argued it had no duty of care as the loss resulted from the acts of third parties and it had not assumed responsibility for the cargo.  The Recorder rejected the police’s request for a strike out, found that it was not clear that the police owed no duty of care, and ordered a trial.  The police appealed.  On appeal, Mrs Justice Elizabeth Laing agreed with the Recorder.  She found that there was no conclusive authority to determine this case.  She reviewed the other authorities, many of which had been considered in CN, and decided it would not be right to strike out the claim without making findings of fact.  A full trial will be required.

Until more cases have been decided about pure omissions and the exceptions to the ‘no duty’ rule, courts are unlikely to strike out cases


Geneviève Rich, Associate, BLM