Michelle Mone case and confidentiality in mediation

Michelle Mone and mediation - should any deal be confidential

Michelle Mone and mediation - should any deal be confidential?

It is a fundamental benefit of mediation that the contents of negotiations which take place are confidential and legally privileged (i.e. nothing which is said can be admitted in evidence in court proceedings). And it is common practice to include confidentiality provisions within any settlement agreement reached through mediation, preventing the parties disclosing the terms agreed. But is it appropriate in every case for confidentiality terms to be incorporated in every mediated settlement agreement? In the case of PPE Medpro and Michelle Mone, the answer may be, no it is not.

The case against Baroness Mone

An investigation by the Guardian has revealed a number of issues regarding the procurement of PPE equipment for the NHS during the Covid pandemic from a company called PPE Medpro. It is alleged that Baroness Mone of Mayfair in the City of Westminster (her full title) lobbied the government to engage with PPE Medpro, who she claimed, could supply PPE (although at the point of first contact, the company had not yet been incorporated). This led to a contract between the UK Government and PPE Medpro pursuant to which the government purchased c.£200m worth of PPE through the so-called “VIP Lane”.

Baroness Mone said she did not have any relationship with PPE Medpro. She did not record any connection in the Register of Financial Interests at the House of Lords, because, her lawyers say, “she did not benefit financially and was not connected to PPE Medpro in any capacity.” Her husband Douglas Barrowman (who at the time was Mones fiancé) also denied any connection with the company. However the Guardian reports that PPE Medpro subsequently distributed £65m to Barrowman, payments which are described as profits from this transaction, which he then re-distributed to a number of trusts; £28.8m was transferred to a trust set up for the benefit of Baroness Mone and her children.

Aside from investigations by the press (with the Guardian at the forefront) a number of other investigative actions are being pursued. Their bankers HSBC launched an investigation into these arrangements and the Guardian reports they then dropped Mone and Barrowman as clients. Baroness Mone is being investigated by the Commissioner for Standards for the House of Lords. The National Crime Agency is investigating the arrangements with a view to determining whether any crimes of fraud have been committed. Finally because a substantial quantity of the PPE was found to be not fit for purpose (which is disputed by PPE Medpro), the UK Government is taking legal action against PPE Medpro, presumably to recover money paid and/or for damages. It is reported that this dispute is the subject of mediation.

Should the terms of any settlement be confidential?

Details about the proceedings and the mediation in this case are sketchy. It is not clear whether formal court proceedings have been started. It may well be the dispute resolution process set out within the contract is being pursued before any legal action is commenced. But the fact mediation is taking place is being used by both spokesman for the UK Government and the lawyers for PPE Medpro/Mone/Barrowman to justify making no comment on the case. The fact there are also investigations being undertaken by the NCA and the House of Lords, and the reputational matters which are at stake for Baroness Mone in particular, could also be cited no doubt as reasons for not commenting.

This is a sensitive matter for the UK Government too. Clearly it has questions to answer regarding the propriety and commercial sense of its dealings with PPE Medpro/Mone/Barrowman. It also has wider questions to answer regarding the procurement of PPE generally during the pandemic, the use of the “VIP lane”, and the connections between government minsters, Conservative MPs and PPE suppliers. This is now a major political issue which the Labour Party has seized upon, fuelled by the current spate of revelations regarding Baroness Mone and PPE Medpro.

So there may be incentives for both parties to settle this dispute quietly, and to attempt to keep the terms agreed away from public scrutiny. The fact that it is common practice to include confidentiality provisions within mediated settlement agreements could be used as a justification for including such terms in any agreement reached. Often it is the right thing to do, for example where the dispute involves private individuals or companies and institutions, and the subject matter is of no material no public interest. But in cases in there is a legitimate public interest, in particular those which involve UK Government, the disbursement of substantial sums of public money, issues of whether value for money is being secured, and whether good governance practices are being followed, the question does arise whether any terms agreed should be confidential.

Of course even if confidentiality provisions were included within the settlement agreement, its contents could be sought through the Freedom of Information Act 2000. However there are many statutory provisions which exempt certain categories of information from the duty of disclosure, including information relating to civil proceedings. The inclusion of confidentiality provisions within a settlement agreement would strengthen the argument for not disclosing.


From the point of view of Baroness Mone and her associates, it would no doubt be best if the terms of any settlement were kept confidential. From the point of view of UK Government, whilst the idea of confidentiality might be attractive initially, in the longer term the inclusion of such provisions might be considered a mistake, for four reasons.

  • Their inclusion is likely to add to (not reduce) the clamour for more information, from the likes of the press and the Good Law Project;
  • A failure to disclose is likely to increase the numbers of people who believe UK Government has things to hide and suppress on this subject.
  • The details may come out in any event in any broader enquiry into the procurement of PPE.
  • Finally disclosing the terms would be a way of the UK Government demonstrating that it is not favouring those who are closely connected to the Conservative Party.

So unless the UK Government wants to kick this can down the road until after the next general election, which clearly would not be the action of an administration committed to “integrity, professionalism and accountability at every level” (Rishi Sunak in his first speech as UK Prime Minister), the right thing to do might be to make sure no confidentiality provisions are included within any settlement.

28th November 2022

Mike Henley