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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Sinclair Pharmaceuticals Ltd v Burrell & Anor [2025] EWHC 1602 (KB) (27 June 2025)
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Cite as: [2025] EWHC 1602 (KB)

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Neutral Citation Number: [2025] EWHC 1602 (KB)
Case No: KB-2025-001904

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
27 June 2025

B e f o r e :

Rory Dunlop KC
____________________

Between:
SINCLAIR PHARMACEUTICALS LIMITED
Claimant
- and -

(1) MS JAYNE KATHERINE BURRELL
(2) MR JAMES PERRY
Defendants

____________________

Mohinderpal Sethi KC (instructed by Jones Day) for the Claimant
Simon Gorton KC and Jack Mitchell (instructed by Aaron & Partners) for the Defendants

Hearing dates: 6, 10 and 27 June 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on 27 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................
    Rory Dunlop KC (Sitting as a Deputy High Court Judge)

    Rory Dunlop KC :

    Introduction

  1. The Claimant ("C") is a medical aesthetics business registered in England and Wales. The First Defendant ("D1") is a solicitor, and an employee of C. D1 is on gardening leave which is due to expire on 19 November 2025. The Second Defendant ("D2") is D1's husband. D1 has brought proceedings against C in the Employment Tribunal ("ET") which are ongoing.
  2. These proceedings relate to information, belonging to C, that came into the possession of D1 and D2 ("Ds"). The evidence from Ds is as follows: on 1 May 2025, D2 received, in the post, an envelope containing documents belonging to C (in essence, printed versions of emails some but not all of which were between C and C's solicitors - "the 1 May Materials"); the 1 May Materials were not accompanied by any note explaining who sent them and Ds do not know who the source was; D2 read the 1 May Materials; D2 began to convey the gist of the 1 May Materials to D1 but she stopped him; to this date, neither D1 nor her solicitors have read the 1 May Materials. It is not clear to me whether C accepts any or all of this evidence. However, C has presented no evidence to the contrary – e.g. no evidence that D1 or D2 might have obtained the 1 May Materials by any means other than the one they described.
  3. Over the weekend of 17/18 May 2025, D1's solicitors sent a copy of the 1 May Materials to the ET (after warning C's solicitors that they planned to do this and being told not to).
  4. The applications before me are concerned with what happened next. On 22 May 2025 C applied for and obtained an order from Goose J in relation to the 1 May Materials ("the Goose J Order"). C gave Ds no notice, not even informal notice, of this application. The Goose J Order, which was accompanied by a penal notice warning of possible contempt of court proceedings and imprisonment, required Ds to do various things in a short space of time, including delivering up all hard copies of what were termed 'Relevant Documents' (a term which included, but was broader than, the 1 May Materials). Goose J set a return date for 6 June 2025. Ds applied to this court to set aside the Goose J order. C applied to continue aspects of the interim relief in the Goose J order and set directions for a speedy trial.
  5. The hearing did not go ahead on the original proposed return date (6 June 2025) for reasons that I addressed in a brief judgment, which is now annexed to this judgment. Instead, it was adjourned until 10 June 2025. On both occasions, C was represented before me by Mr Sethi KC and Ds by Mr Gorton KC and Mr Mitchell. I thanked them at the end (or what I thought was the end) of the hearing on 10 June 2025 for their submissions. I thank them again, both for the clarity of their submissions and for finding space in what I am sure are busy diaries for the adjourned hearing.
  6. Factual Background

  7. On 2 January 2015 D1 commenced employment at C under a Director's Service Agreement. With effect from 21 June 2022, D1's job title changed to Chief Legal Officer.
  8. On 5 August 2024 D1 raised a formal grievance and speak-up complaint. C did not uphold that grievance.
  9. On 19 November 2024 C dismissed D1 on the grounds of redundancy. She was given 12 months' notice on garden leave which is due to expire on 19 November 2025.
  10. On 02 December 2024 D1 submitted a Data Subject Access Request ("DSAR") to C.
  11. On 2 January 2025 D1 filed a claim in the ET against C and four individual respondents.
  12. On 2 March 2025 C provided its response to D1's DSAR.
  13. C has applied to strike out D1's ET claim, or at least parts of it. A case management hearing in the ET proceedings has been listed for 21-22 July 2025 and the strike out application is to be considered at that hearing.
  14. The evidence before me is that on 1 May 2025 D2 was provided with the 1 May Materials in an envelope. Mr Gorton KC told me, on instructions, that D2 threw away the envelope and only kept the contents. I have no witness evidence to support that assertion but it would not be surprising if it were the case.
  15. In D2's witness statement he explains that he read the contents and was 'shocked, disturbed and angry by what I read as it appeared to present a different picture from the one that the Claimant had given to my wife. I took immediate steps to secure the documents in an envelope in our safe as I did not want my wife to read the contents as I knew she would be incredibly upset by them.' I note his use of the phrase 'in an envelope', rather than, for example, 'and the envelope'. That is consistent with Mr Gorton's assertion on instructions – it implies that the original envelope was not kept and the documents were placed in a different envelope. D2 then goes on to explain what happened when D1 returned home later that day:
  16. "10. When my wife returned home later that day, I told her that I had received some concerning documents and emails via the post that had been sent anonymously which I told her I assumed had been sent, I surmised, by someone at her work but that there was no covering note or other indication as to who had sent them, or why. I said I believed it included information that I would have expected to have been disclosed as part of her DSAR and that it appeared to paint a different background to her redundancy. In particular, it seemed clear to me that they had recruited a replacement of her role prior to starting her redundancy consultation, and I found that extremely surprising. I started to convey the gist of what I had read.
    My wife asked me to stop discussing it and told me not to let her see the documents. I did not share the contents with my wife. She was very upset about what I had told her and concerned about who had sent the documents to me."
  17. By letter dated 2 May 2025, D1's solicitors Aaron & Partners ("AP") wrote to C's solicitors, Jones Day ("JD"), saying that:
  18. "[D1] has obtained additional material evidence that significantly reinforces her [ET] claims. Our client is confident that this material demonstrates that the grievance, redundancy and consultation processes to which she was subjected were not only procedurally and substantively flawed, but were also improperly manipulated with the objective of removing her from the business following her protected disclosures."
  19. An attendance note, dated 13 May 2025, of a telephone call between AP and JD records AP as saying that:
  20. "some information has come into our client's possession. She maintains it is relevant and strengthens her claims. We haven't seen it yet and we don't want to. Some information has been given to [D1], in hard copies which show the whole redundancy process to be a sham. They show that someone else had already been appointed into the role. I am conscious that we don't want to be getting involved in any criminal activity. I have said it needs to be dealt with properly. We have taken specific advice and we have been told that the information is to go into a sealed envelope and we should send it to the [ET] and let the [ET] do what they want. I don't want to look at it or see it but I can't ignore that I have been told it… before we send to the [ET] I want settlement to be explored."
  21. On 14 May 2025 AP emailed JD in similar terms and said the following:
  22. "I advised yesterday that our client has been provided with documentation that the provider maintains should have been provided under the DSAR and wasn't. He has great concerns about the company's conduct and as such has raised the concerns.
    I can't comment on the content as I have not seen it and won't see it unless we get tribunal directions to allow for this but I am advised that the content includes a lot of email correspondence clearly showing the redundancy exercise to be a sham and it also potentially calls into question whether correspondence between yourself and your client should remain privileged."
  23. D2 explains, in his first witness statement, that on 15 May 2025 he hand-delivered 'a copy' of the 1 May Materials to AP. Mr Gorton KC clarified, on instructions, that D2 created a copy of the 1 May Materials and he was not sure whether he provided the original or the copy to AP. The other he retained in his safe.
  24. In a letter dated 16 May 2025, sent by email at 8.38AM, JD wrote to AP in the following terms:
  25. "You are hereby required by 5pm on Monday 19 May 2025 (i) to send us all copies of [the 1 May Materials]; and (ii) for you and your client to undertake to us in writing that neither you of you have retained any copies of [the 1 May Materials] (whether in hard or electronic copy or stored in the cloud) copies or transmitted or otherwise disseminated or allowed access to any other party.
    Your client is also required, by 5pm on Monday 19 May 2025, to provide to us in writing full details of the source of [the 1 May Materials] and a full account of how [the 1 May Materials] was obtained and provided to her."
  26. At 9.56AM on 16 May 2025 AP emailed JD as follows:
  27. "information that we are advised your client should have disclosed as part of a … DSAR from our client was provided to our client's husband by someone who I am advised considers themselves a whistleblower in this situation (I am not aware who this whistleblower is …). We are advised by our client that the documentation has not been seen or reviewed by her nor has it been seen or reviewed by myself or anyone here at the firm.
    Given the alleged content and duty of disclosure we have taken our own advice and have been advised to obtain the information in a sealed envelope and send it directly to the tribunal so our client has not seen it and nor have we. We will instruct our client that any copies or information still held is to be destructed [sic] by 5pm today. I can provide reassurance that apart form [sic] the sealed envelope we now have to send to the tribunal, we have not seen anything else in respect of this nor have we discussed anything more than an overview of content as a result of our client's call to us about this. At which point we sought our own advice and are acting upon it."
  28. In a second letter dated 16 May 2025 JD stated:
  29. "5. The Documentation belongs to our client. To the extent it is privileged, our client has not waived such privilege. Nor has it waived confidentiality. In order to avoid the need for immediate injunctive steps against all those who may have received the Documentation or details of their contents, it must be sent to us no later than 5pm today by courier to the extent to which it is in hard copy. Your client is under management instructions, conveyed by us, to do so. We remind her of her contractual obligations … Our client is aware of its own obligations to preserve evidence which it will do upon receipt of the Documentation (we note that, conversely, you appear to be advising your client to destroy evidence in the course of proceedings – to be clear she must not do so).
    6. Additionally, your client is under a duty to preserve evidence and she must not destroy any copies of the Documentation (whether in electronic or hard copy form). We require written undertakings in the form below to be provided by your client and her husband by 5pm today and affidavits (at paragraph 8) by 12pm Monday. Our client reserves its rights to take appropriate action should these not be provided.
    7. We require an undertaking from each of your client and her husband that:
    a. they will immediately deliver up to Jones Day the Documentation in original format (to the extent in hard copy) and all other hard copy material belonging to Sinclair or any of its affiliated entities (other than material that is made available to third parties without restriction by Sinclair) that is in their possession, custody or control or which comes into their possession, custody or control in the future as soon as they are aware of the same. To the extent to which the Documentation or other company documentation is held in electronic format they will provide full details and access to an independent IT expert to allow proper preservation of a forensic image and thereafter deletion from their systems by that expert in a forensically sound manner;
    b. subject to their obligations at (a), they will preserve all documentation and information potentially relevant to the proceedings and to not now or at any time in the future, take steps to delete such material; and
    c. they will not now or at any time in the future use nor (save as may be required or permitted by law) disclose to any person any confidential or privileged information belonging to Sinclair in any way whatsoever other than to their legal advisors.
    8. We further require an affidavit from each of your client and her husband:
    a. confirming full details of any third party to whom the Documentation (or any information regarding the contents of the Documentation) has been provided, including the means of transmission, dates and the identity of all such recipients and onward recipients of which they are aware;
    b. confirming any steps which they have taken to delete or otherwise destroy the Documentation and/or evidence of its transmission; and
    c. providing full details of where the Documentation is held, including electronically and including any copies, summaries or notes of the contents of the Documentation."
  30. At 3.16PM on 16 May 2025 AP emailed JD stating:
  31. "on advice we obtained, we are sending the documents that have been delivered to our reception in a sealed envelope to the tribunal. We had instructed our client to delete any copies soft or hard copy by 5pm today, that was before your correspondence, but it is still entirely appropriate as there is a full copy of the information/ documentation and it will be on its way by courier to the tribunal. You will have original copies of all of this in any event.
    I have already confirmed to you, aside of the sealed envelope we have not been in possession of any of the information/ documentation so there is nothing for us to keep or destroy. We have taken advice and we are happy that we are acting entirely appropriately by sending the documents in a sealed envelope to the tribunal. The tribunal will give appropriate directions. So you have my reassurance that we don't have any of this information or documentation beyond the sealed envelope which is on its way to the tribunal.
    I disagree that there is anything inappropriate in the deletion of this in soft and/or hard copy by our client where it could be deemed in her possession. I have confirmed this will also be done by 5pm today. She has discharged her disclosure obligation by sealing it in an envelope and asking us to send it to the tribunal."
  32. At 3.27PM on 16 May 2025 JD responded as follows:
  33. "We will respond in more detail separately, but for now I reiterate that your client is under strict management instructions not to destroy and to return to us Company property, being the Documentation (as defined in our letter of today). Further, it is an offence under the DPA and a breach of court rules on preservation of evidence to destroy evidence in the course of litigation or when litigation is contemplated. We require disclosure of your legal advice that you are relying on as indicated in your email below.
    If you fail to confirm immediately that your client will return the Documentation to us and you will not send it to the Tribunal, an injunction application seems inevitable. We are prepared for that to be on notice, but it must obviously not be frustrated by your action of sending the documents to the Tribunal and, more importantly, your client wilfully destroying evidence when it is entirely unclear what it is that will be destroyed. You are, however, aware that it is privileged and belongs to the Company as well as containing personal data belong to the Company.
    Please confirm by return that you will pause matters until an injunction application can be issued on an urgent basis so that this can be determined before irremediable steps are taken."
  34. At 5.11PM AP responded to say:
  35. "… where reference has been made to deletion this was only in relation to any copies that may exist, and not to the sealed hard copy which Helen Watson has referred to in previous correspondence, meaning no actual data or evidence would have been destroyed only copies. This was intended to give your client comfort that our client did not retain copies of any of the data that had come into her possession.
    Nevertheless, we have in the meantime advised our client to preserve any copies of the documents that may exist until we can consider, take advice and reconvene with our client on Monday."
  36. At 5.52PM JD emailed AP stating:
  37. "You have not confirmed that your client has undertaken to comply with your advice. Further, you have not said what has happened with the sealed envelope held by your firm. …
    If an application and hearing in the interims list is to be avoided on Monday morning, we require the entirely reasonable and justified undertakings set out in our letter of earlier today to be provided by 7pm this evening together with confirmation that the affidavits will be provided by midday on Monday."
  38. No such undertakings were provided. Instead, under cover of a letter dated 16 May 2025 (sent on Saturday 17 May 2025) AP sent a copy of the 1 May Materials to the ET in a sealed envelope and made an application for:
  39. "7.1 A determination of whether privilege has been waived in any specific document within the Documentation which purports to be legal advice from Jones Day to [C]…
    An order for early disclosure to [Ms Burrell] of any document within the Documentation which is not privileged…
    …an order that [C] must disclose any non-privileged document contained in the Documentation at the Disclosure stage of the case (date still to be determined, during the Preliminary Hearing listed for 21-22 July 2025)..."
  40. On Sunday 18 May 2025 AP sent an email to JD enclosing a copy of their letter to the ET.
  41. On 19 May 2025 EJ Jenkins decided not to open the sealed envelope and instead ruled:
  42. "7.1 Determination of waiver of privilege could only be achieved by first determining whether privilege applied. In the absence of any understanding, by anyone currently, as to what the documents enclosed with the letter contain, it is difficult to see how that could be achieved.
    The Respondent will be under an obligation to disclose all relevant documentation which is not privileged, and it is not clear what early disclosure would achieve.
    As noted above, when a disclosure order is made, which will presumably happen at the preliminary hearing on 21 and 22 July 2025, it will require the Respondent to disclose all documents relevant to the issues to be determined, unless it has a right to withhold any, e.g. due to privilege. It is difficult to see what benefit would be gained by making specific reference to a requirement to disclose non-privileged documents, as that is the general position in any event. The Judge observes that it might possibly be of assistance to require the Respondent to confirm if it has relevant documents over which it asserts privilege, similar to the CPR process under Part 31, and that could be something discussed at the forthcoming preliminary hearing"
  43. On 22 May 2025 C applied in this court for injunctive relief. No notice, even informal notice, was given to Ds of this application.
  44. A hearing took place at 12.40pm on 22 May 2025 before Goose J. Neither Ds nor anyone representing them attended. It was only attended by C's legal representatives. Goose J was provided with a 29 page witness statement from Ms Whitaker, of JD, over 100 pages of exhibits and a skeleton argument from Mr Sethi KC which was unpaginated but ran to around 20 pages. In paragraph 17 of his skeleton argument, Mr Sethi KC said that 'C is fully cognisant of its duty of full and frank disclosure' and directed the court's attention to paragraphs 63-64 of Ms Whitaker's statement. In those paragraphs Ms Whitaker set out arguments that Ds might have made, if they had attended, including that 'the action … [was] inappropriate in the context of the [ET] proceedings' and that 'it is inconsistent for [C] to suggest that this application need[ed] to be brought without notice whilst at the same time having delayed bringing it'.
  45. In paragraph 63.5 of Ms Whitaker's statement she said the following:
  46. "Had the Respondents provided the entirely reasonable affidavits and undertakings which have been repeatedly sought (and refused), this application could have been brought on notice with appropriate time for the Respondents to respond (as suggested in my email of 16 May 2025) … The fact that they have rejected the safeguards sought, threatened to destroy documents and then unilaterally proceeded to send documents to the Employment Tribunal means that Sinclair has a genuine fear about what they may now do following the indication from the Employment Tribunal on 19 May 2025 that it is not minded to grant the immediate directions which they sought. Sinclair considers it entirely possible that the documents may now be sent elsewhere or further documents containing confidential information obtained from Ms Burrell's source within Sinclair."
  47. A hearing took place at 12.40pm on 22 May 2025 before Goose J. Goose J began the hearing by saying: 'Thank you for providing your documents electronically which I have read. You don't need to explain in detail what the claim is. It is fairly clear and not an unfamiliar situation where you are seeking to preserve confidential documents which have been or probably have been taken by D1. Do you want to say anything before we turn to the order itself?' [Emphasis added]. Mr Sethi KC responded by thanking the judge for fitting them in and asking the judge to confirm what he had seen. There is no record in the transcript of the judge's answer to that question. There is then a discussion of the terms of the order. In the course of that discussion, Mr Sethi KC mentioned that a 'source', presumably internal, provided D1's husband with the detail he provided to D1. He asked for an additional order, requiring Ds not to disclose the existence of the order until the Return Date, in order to prevent the source being tipped off. Goose J granted the order subject to the amendments discussed.
  48. The Goose J Order included the following:
  49. i) injunctions prohibiting Ds from using or disclosing any "Confidential Information" save for certain exceptions – Sch 4(1) para 1 and Sch 4(2) para 1. 'Confidential Information' was defined, in Schedule 3, more broadly than the information in the 1 May Materials;

    ii) injunctions requiring Ds not, otherwise in accordance with the Goose J Order, to destroy, alter or part with Relevant Documents - Sch 4(1) para 2 and Sch 4(2) para 2. 'Relevant Documents' was defined, in Schedule 3, more broadly than the 1 May Materials – it included, for example, 'any document relating to the business of [C] and/or any Group Company created by [D1] at any time during her employment or directorship with [C]';

    iii) injunctions requiring Ds to deliver up 'any property belonging to C (including Relevant Documents)' - Sch 4(1) para 3 and Sch 4(2) para 3;

    iv) injunctions requiring Ds to serve witness statements:

    a) confirming compliance with the order for delivery up;
    b) Verifying that they do not have hard copies of Relevant Documents;
    c) Identifying what soft copies they have had of Relevant Documents and where and how they are retained;
    d) setting out what use they made of the Relevant Documents;
    e) identifying (by name, address and contact details) any person or persons to whom or by whom the Relevant Documents (including information contained therein) have been disclosed, or offered to be disclosed;
    f) identifying (by name, address and contact details) any other person or persons who within their knowledge have extracted information from, copied, adapted, deleted or destroyed the Relevant Documents;
    g) identifying (by name, address and contact details) any other person or persons to whom they have given access or permission to use the Relevant Documents; and
    h) identifying (by name, address and contact details) any other person who has disclosed to them, or offered to disclose to them, the Relevant Documents or copies thereof.

    v) Injunctions not to induce any current or former employee of C to breach their duty of fidelity and good faith.

    vi) An order that, 'Except for the purpose of obtaining legal advice, the Defendants must not directly or indirectly inform anyone of these proceedings or of the contents of this order, or warn anyone that proceedings have been or may be brought against the Defendants by the Claimant until 4.30 p.m. on the Return Date or further order of the court.' ("Injunction 1.2")

  50. The Return Date was set at 6 June 2025. Unfortunately, as discussed in my judgment of 6 June 2025 which appears in an Appendix, there appears to have been a delay in KBD listings becoming aware of that return date.
  51. On 22 and 23 May 2025 the Goose J Order was served on Ds.
  52. On 26 May 2025 (a Bank Holiday) Ds delivered up to JD various things, including a box of hard copy papers, three branded Sinclair USB data storage devices, a laptop computer and an iPhone. As part of that delivery up, JD received hard copies of the 1 May Materials.
  53. On 28 May 2025 each D served a witness statement. Each confirmed that they had complied with the order for delivery up. D2 confirmed that he no longer had any copies of 'Relevant Documents'. D1 confirmed that she no longer held hard copies of any Relevant Documents save for Relevant Documents relating to her ET claim. She clarified that this did not include the 1 May Materials – in other words, all hard copies of the 1 May Materials had been delivered up.
  54. On 2 June 2025 Ds applied to set aside the Goose J order on the grounds that there had been a failure to comply with the rules, practice directions and law and an abuse of process, and for C to return all the documentation and devices to Ds.
  55. On 4 June 2025 C applied for a continuation of injunctive relief, in particular that paragraphs 1, 2 and 5 of Schedule 4(1) and 4(2) of the Goose J Order should continue until trial or further order – i.e. the paragraphs that require Ds not to use or disclose Confidential Information, not to dispose of Relevant Documents (other than in accordance with the Goose J Order) and not to induce any current or former employee of C to breach their duty of fidelity and good faith.
  56. The matter came before me on 6 June 2025. I adjourned it to a hearing on 10 June 2025. I also made orders under CPR 5.4D and 31.22(2). I provided counsel to the parties with an embargoed draft of my reasons in writing and then formally handed them down on 10 June. I include, as an appendix, a record of those reasons where terminology has been amended to ensure consistency. The parties sent me an agreed order which I approved. At no point, during that hearing before me on 6 June 2025, did Mr Sethi KC apply for Injunction 1.2 to be extended. It follows, in my judgment, that Injunction 1.2 lapsed at 4.30pm on 6 June 2025. From that point, Ds regained the right to inform others, for purposes other than just to obtain legal advice, of the Goose J Order and of the proceedings brought against them in the High Court.
  57. One of the issues discussed at the 6 June 2025 hearing was whether Ms Watson, the solicitor with conduct of the case at AP, had read the 1 May Materials. In her witness statement she said: 'until writing this statement I had not seen' them. Mr Sethi KC submitted that this indicated she had read them. Mr Gorton KC submitted that that was a misunderstanding - 'seen' did not mean 'read'. By letter dated 6 June 2025 JD asked AP to confirm that Mr Gorton KC's submission was correct. AP did so – they confirmed, in writing to JD, that neither Ms Watson, nor her legal team, have read the 1 May Materials.
  58. I asked the parties to agree a list of issues. They provided the following list:
  59. "C's List of Issues for determination:
    1. Is D1 in breach of Sch 4(1) para 3 of the Injunction Order for delivery up?
    2. Is D1 in breach of Sch 4(1) para 4.1 of the Injunction Order for a witness statement?
    3. Is D2 in breach of Sch 4(2) para 4.1 of the Injunction Order for a witness statement?
    4. Should the court grant interim relief pending trial against D1 in respect of:
    4.1. C's Confidential Information;
    4.2. Preservation;
    4.3. Delivery up [nb. this does not appear in the current Draft Return Date Order but is addressed in C Skeleton/8.5 and 14. It continues Sch 4(1) para 3 of the Injunction Order];
    4.4. Witness statement focussed on HW1 Documents; and
    4.5. Non-inducement.
    5. Should the court grant interim relief pending trial against D2 in respect of:
    5.1. C's Confidential Information;
    5.2. Preservation;
    5.3. Copy of the Royal Mail Envelope [nb. this does not appear in the current Draft Return Date Order but is addressed in C Skeleton/8.6(6) and 9.5 (where the reference to D1 should instead be to D2 as he received and retains the envelope), and Whitaker 2/24-25]; and
    5.4. Non-inducement.
    6. Are Ds entitled to relief from sanction for:
    (1) the late filing of their evidence in reply to the Injunction Application in breach of paragraph 2.1 of the Injunction Order?
    (2) the late filing of their application pursuant to CPR 23.10(1) to set aside the Injunction Order in breach of CPR 23.10(2)?
    7. Costs
    D's Issues in respect of the application to set aside the Order:
    1. Should the order be set aside on the grounds that:
    a. C was not justified in seeking an order 'without notice'?
    b. Did C fail in its duty to provide Mr Justice Goose with full and frank and fair disclosure of matters relevant to the application and the order sought?
    c. If so, should the order be set aside?
    2. If the Order is set aside, is C entitled to any further relief and if so in what terms?
    3. If the Order is set aside, what steps should C be ordered to take to be deprived of any advantage from the Order it has been granted?
    4. If the Order is set aside, should the action be stayed and if so on what terms?
    Costs
    5. If the Order is not set aside:
    a. Should any other further Order be granted?
    6. Subject to 5, what Directions are required for C's claim:
    a. Is a speedy trial required?

    The 10 June 2025 hearing

  60. I asked the parties to agree a timetable and indicated that I would reserve judgment so they did not need to allow time for me to give an ex tempore judgment. The parties could not agree, between them, who should address me first. I indicated that I would like to hear counsel for C first as my provisional view was that the most important issues for me to resolve were the C's issues 4 and 5 – i.e. whether I should grant interim relief.
  61. The hearing began at 10.30am and appeared to conclude at 4.30pm. I thanked the legal teams, reiterated that I would reserve judgment and said I would provide it as soon as I could. At that point, when I was standing up to leave the court, Mr Sethi KC made two unheralded applications. First, he asked me to make an order in the same terms as Injunction 1.2. Secondly, he asked me to extend time for C to file Particulars of Claim. Mr Gorton KC opposed each application.
  62. After taking a short time to consider the applications, I indicated orally that I would not make either such order. As to the latter, I said that I would attempt to draft my judgment that week. I said it was a matter for C whether to file the Particulars of Claim by Friday (which I was told was the date it was due) or make an application in writing for an extension of time. As to the former, I said that, on my reading, Injunction 1.2 had lapsed. I also said that I accepted the submission of Mr Gorton KC that it would be a significant infringement of the right of open justice to impose the order requested. We had had a full day of argument in open court and there would have to be a very strong justification before I would make an order that would prevent Ds speaking to anyone about that hearing, other than for the purposes of legal advice. I did not and do not think that there was any such justification.
  63. I would add the following observations to what I said in court. If Ds had had the ability and inclination to tip off the source about the existence of these proceedings they could, in any event, have done so between 4.30pm on 6 June and the time (4 days later) when Mr Sethi made his application. There was no evidence that they had done so. Indeed, the idea that Ds might tip off a source had no solid evidential foundation. The witness statements from Ds make clear that they did not know the identity of the source who provided them with the 1 May Materials. There is no evidence to contradict that. Mr Sethi KC's submissions laid great emphasis on sentences in AP's correspondence. He placed particular emphasis on Ms Watson's email of 15.16 on 14 May 2025, which I have cited above and what she said about 'the provider'. He stressed the word 'he' several times and emphasised the passages where Ms Watson set out the concerns of the 'provider'. The implication, which was not spelled out in terms, appeared to be that the statements of Ds were untrue and one or both Ds did know the source – how else could Ms Watson have known the source's gender and concerns?
  64. In my judgment, there is an obvious and innocent explanation for the words Ms Watson used in her 14 May email. In paragraph 21 of Ms Watson's statement she explains that, after her initial instructions, she thought that D1 had been provided with the 1 May Materials directly by a source in C. However, she later came to realise that it was D2, not D1, who first received the 1 May Materials and then began to gist them to D1. It seems to me that Ms Watson's comments, on 14 May, about 'the provider' were most likely comments about D2. It was D2 (and D2 is of course a 'he') who expressed concerns about C's conduct and whether they had complied with the DSAR. I don't think it can be inferred, from the email of 14 May 2025, that D1, D2 and Ms Watson are all lying or concealing information about the source who sent the 1 May Materials to D2.
  65. In short, the risk of this unknown source being tipped off by Ds is overstated by C and does not justify what would be a very serious infringement on the principle of open justice.
  66. Legal Framework

  67. In the course of their submissions, each counsel referred me to various authorities.
  68. Mr Sethi KC handed up a bundle of authorities[1], which included Curless v Shell International Ltd [2019] EWCA Civ 1710. He explained that Curless was the reported Court of Appeal judgment which reversed the decision of the EAT in X v Y Limited (Appeal No. UK/EAT/0261/17/JOJ), a case relied on by Mr Gorton in the 6 June 2025 hearing.
  69. The facts in Curless bear some similarity to the present case. Mr Curless was a lawyer employed by Shell. He raised a grievance and brought a claim for disability discrimination. He was later dismissed by reason of redundancy. He brought a claim in the ET alleging that this was, in effect, a sham and the real reason for his dismissal was his disability and his first claim of discrimination. He received, from an anonymous source, an internal email giving legal advice, headed 'legally privileged and confidential' concerning his selection for redundancy. The ET held that the email was privileged and struck out the paragraphs of his claim which relied on its contents. The EAT allowed an appeal, holding that the email recorded advice, on how to 'cloak' dismissal as dismissal for redundancy, and that established a strong prima facie case of iniquity requiring legal advice privilege to be disapplied. The Court of Appeal allowed the employer's appeal. They held that the advice was the sort which employment lawyers give 'day in, day out' and was not advice to act in an underhand or iniquitous way. Accordingly, they held that the advice remained privileged and could not be relied on by Mr Curless in support of his case.
  70. In my judgment, Curless illustrates how the ET (and, if necessary, the appellate courts which sit above the ET) can deal effectively with a dispute about whether legal professional privilege ("LPP") should be disapplied because the relevant legal advice was to carry out an iniquity, such as concealing the true reason for dismissal. The ET can give adequate remedies where it concludes that the iniquity exception does not apply and the claimant should never have received the document – it can rule that the privileged document is inadmissible and any part of the claim which relies on it should be struck out.
  71. Mr Sethi KC also referred me to Al Sadeq v Dechert LLP and others [2024] EWCA Civ 28 at [63]-[108]. In that authority, Popplewell LJ held that the threshold for the iniquity exception to LPP, was a prima facie case which meant that, on the material available, it was more likely than not that on a balance of probabilities that such iniquity existed. I accept Mr Sethi KC's submission (which was not opposed) that that is the test. However, neither party is asking me to apply that test and determine myself whether the iniquity exception applies to the 1 May Materials.
  72. Mr Sethi KC also took me to Brandeaux Advisers (UK) Limited et al v Ruth Chadwick [2010] EWHC 3241 (QB) at [25]. In that action the claimant companies sought an order for the delivery up of confidential information by Ms Chadwick, the defendant former employee. Ms Chadwick had emailed that information, in the form of several documents, to her own private email address. After doing so she double deleted the emails she had sent. Ms Chadwick did not disclose to her employer that she had done this. Instead, these disclosures were discovered by the employer's IT department. A without notice injunction was obtained for divulgence and delivery up, which was granted. The injunction was maintained after a return date hearing.
  73. Jack J accepted that Ms Chadwick had not intended to use the material for a 'nefarious purpose', only to 'arm herself for the future' in any disputes that might arise with her employer (see para. 18). Ms Chadwick's argument was that this was not a breach of contract as there was an implied term in her contract that she could use such information 'to protect her legal rights or to defend herself'.
  74. Jack J identified flaws in that argument. First, Ms Chadwick simply sent herself a vast quantity of material regardless of whether it was relevant to any dispute. Secondly, she was 'not involved in any whistle blowing exercise'. He said that 'in the event of a dispute with her employer' a 'comparatively small number of documents would have been required' (para. 21). Jack J distinguished the authorities Ms Chadwick relied upon and said they fell 'a long way short' of establishing that Ms Chadwick was entitled to act the way she did (para. 23). Jack J then said 'I should not get drawn into any wide statements of principle which are unnecessary to my decision'. What Mr Sethi KC relied on were the words that followed (to which I have added emphasis), i.e. 'I am doubtful if the possibility of litigation with an employer could ever justify an employee in transferring or copying specific confidential documents for his own retention, which might be relevant to such a dispute.' In my judgment, this observation does not assist me in the present case. First, it is obiter dicta and Jack J was expressly not intending to lay down a 'wide statement of principle' unnecessary to his decision. Secondly, it is specific to a different factual context – where the employee transfers or copies the confidential documents – and does not apply to the present case of innocent receipt. Thirdly, even in that context, Jack J does not express a concluded view – he says he is 'doubtful'.
  75. Mr Sethi KC also relied on Imerman v Tchenguiz and others; Immerman v Immerman [2010] EWCA Civ 908; [2011] 2 WLR 592. The claimant in those proceedings was the husband in divorce proceedings. The claimant's brother-in-law, who shared an office and computer system with him, accessed his computer system without his permission and copied information and documents stored there. The brother-in-law did this out of concern that the claimant might conceal assets and prevent Mrs Imerman obtaining a fair financial settlement. The brother-in-law passed the information he obtained to Mrs Imerman.
  76. The claimant issued proceedings against the brother-in-law (and his associates) and obtained an order from Eady J restraining them from using the information and requiring them to deliver up copies. The claimant also made an application in the divorce proceedings for the return of the documents. Mostyn J (as he then was) ordered that the files be handed back to the husband, for the removal of any material in respect of which they claimed privilege, but the remaining material was to be handed back. Appeals were brought against each order.
  77. The Court of Appeal (which included Lord Neuberger MR and Moses and Munby LJJ) gave one judgment. They went through the history of the law of confidence. At para. 64, they cited caselaw that confidence could be invoked 'where an obviously confidential document is wafted by an electric fan out of a window'.
  78. At para. 68 the Court of Appeal added 'If confidence applies to a defendant who adventitiously, but without authorisation, obtains information in respect of which he must have appreciated that the claimant had an expectation of privacy, it must, a fortiori, extend to a defendant who intentionally, and without authorisation, takes steps to obtain such information. It would seem to us to follow that intentionally obtaining such information, secretly and knowing that the claimant reasonably expects it to be private, is itself a breach of confidence.' Mr Sethi KC relies on the first sentence cited above. He submits that the principles in Imerman therefore apply even to a case of innocent receipt, not just a case where the defendant has knowingly procured the confidential material unlawfully. However, in my judgment, that begs the question 'what principles?'. In this particular paragraph (68) the Court of Appeal were addressing the question of whether there may be confidence in information obtained by innocent receipt. Paragraph 68 is authority that there can be confidence in information obtained by innocent receipt. However, paragraph 68 says nothing about how to assess a potential defence to a breach of confidence claim when the recipient came across the information innocently.
  79. Mr Sethi KC relied also on paragraphs 69-79 of Imerman. Paragraphs 69-71 are concerned with the general nature of the law of confidence. The Court of Appeal were not there addressing possible defences to such a claim. For example, in paragraph 69, the Court of Appeal made the following observation: 'It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy.' (emphasis added).
  80. In paragraphs 72 to 75 of Imerman the Court of Appeal set out the relief that may be granted where there is a breach of confidence, e.g. injunctions to restrain, use and return or destroy copies. The Court were not saying that such relief should always be granted in relation to confidential material, no matter what reasons the respondent might give for wanting to retain the material. They made clear that such orders should be made 'in the absence of good reason otherwise'. Indeed, in para. 75, the Court mentioned a case where an injunction was refused on the grounds of 'public interest in the disclosure of wrongdoing and the proper administration of justice'.
  81. In paragraphs 76-79, the Court mentioned why, on the facts, the materials accessed by the brother-in-law were confidential. It is only later that the court addressed the other side of the balance – i.e. the arguments as to why Mrs Imerman should be able to retain the documents, notwithstanding their confidential character. Most of the arguments focused on a practice in matrimonial proceedings (which had been termed the Hildebrand rules) of no application to this case, which I do not need to set out. In short, the court considered that what was done in that case could not be justified under the Hildebrand rules and, further, that there were no such rules.
  82. The Court said the following at paragraph 142: 'Of course a claim for breach of confidentiality may be defeated by showing that the documents or information revealed unlawful conduct or intended unlawful conduct by the claimant: see Istil's case [2003] 2 All ER 252. But in the instant appeal it is not suggested that the documents themselves disclose measures taken to defeat the wife's claim.' That, in itself, marks an important distinction between Imerman and the present case. In this case, it is alleged that the 1 May Materials disclose unlawful measures taken to conceal the true reason for D1's dismissal.
  83. The Court also placed significance on the fact that 'what happened in this case was an invasion of privacy in an underhand way and on an indiscriminate scale.' That factor led into the Court's observation that Mrs Imerman should not be able to 'benefit in any way from the wholesale, wrongful, and possibly criminal, accessing and copying' of the claimant's confidential documents.
  84. It is significant, in my judgment, that the Court proposed an order which sought to achieve 'a fair balance' between 'two competing concerns': on the one hand, the justice in seeking to eliminate or minimise the benefit the wife obtained from the confidential documents; on the other hand, the justice in seeking to ensure the husband cannot dispose of or hide documents. That order required Mrs Imerman and her relations to hand over the confidential documents to the husband's solicitors on terms that those solicitors should not part with the documents, without permission of the court. The court observed that those solicitors would need to consider those documents as part of any disclosure exercise. The court considered that to be a 'more appropriate' way of protecting Mrs Imerman's interests than the order made by Mostyn J (which allowed Mrs Imerman to retain some of the documents).
  85. In my judgment, Imerman provides a good illustration of the maxim that, in law, context is everything. The court expressly sought to achieve a fair balance between competing considerations that reflected the factual context. In that factual context, a fair balance could be achieved by ordering the wife to return documents to the husband's solicitors because there was no reason to doubt that the husband's solicitors would disclose, in due course, the documents belonging to the husband which fell for disclosure. There was a suspicion that the husband might wrongly withhold those documents, if given the chance, but no suspicion that the solicitors would do so. I do not think that one can extrapolate, from Imerman, a principle that courts should always order litigants, who obtain confidential documents belonging to their opponents at a pre-disclosure stage, to deliver up all copies of those documents to their opponent's solicitors and simply trust to the disclosure process. The court in Imerman were not considering a situation where it is alleged that the confidential documents may show wrongdoing by the very solicitors who would be carrying out the disclosure exercise.
  86. Mr Gorton KC referred me to Tugushev v Orlov et al [2019] EWHC 2031 (Comm) at [7]. In that case Carr J (as she then was) laid down 13 principles in relation to the duty of disclosure in without notice applications:
  87. "(i) The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court's attention to significant factual, legal and procedural aspects of the case;
    (ii) It is a high duty and of the first importance to ensure the integrity of the court's process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make;
    iii) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents;
    iv) An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made. The urgency of a particular case may make it necessary for evidence to be in a less tidy or complete form than is desirable. But no amount of urgency or practical difficulty can justify a failure to identify the relevant cause of action and principal facts to be relied on;
    v) Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention and for example to disclosure of related proceedings in another jurisdiction;
    vi) Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect;
    vii) A defendant must identify clearly the alleged failures, rather than adopt a scatter gun approach. A dispute about full and frank disclosure should not be allowed to turn into a mini-trial of the merits;
    viii) In general terms it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself;
    ix) If material non-disclosure is established, the court will be astute to ensure that a claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived;
    x) Whether or not the non-disclosure was innocent is an important consideration, but not necessarily decisive. Immediate discharge (without renewal) is likely to be the court's starting point, at least when the failure is substantial or deliberate. It has been said on more than one occasion that it will only be in exceptional circumstances in cases of deliberate non-disclosure or misrepresentation that an order would not be discharged;
    xi) The court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties;
    xii) The court nevertheless has a discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter non-compliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts;
    xiii) The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure."
  88. Mr Gorton KC also referred me to the judgment of Warby J in Birmingham City Council v Asfar and others [2019] EWHC 1560 (QB) at [19]. I do not need to cite all of the principles set out therein. The following are sufficient:
  89. "(1) Any application to the Court should ordinarily be made by application notice, filed and served on the respondent, with the supporting evidence, not less than 3 days before the hearing at which the Court is to decide whether to grant the relief sought: CPR 23.3, 23.4, 23.7(1) & (3) and PD23A para 4.1.
    (2) An application may be made without serving a copy of the application notice if this is permitted by (a) a rule; (b) a practice direction; or (c) a court order": CPR 23.4(2). "Where an application notice should be served but there is not sufficient time to do so, informal notice of the application should be given unless the circumstances of the application require secrecy": PD23A para 4.2."

    Submissions

  90. Mr Sethi KC submitted that there was a very serious issue to be tried. He said there was prima facie evidence that D1 and D2 were in breach of various duties. D1, in particular, was in breach of duties to C, who is still her employer, including 'receiving, misusing, copying and disclosing privileged material for her own benefit, which might do harm to her employer'.
  91. Mr Sethi KC took me through the relevant factual history. He referred to the forthcoming case management hearing listed in the ET for 21-22 July, where C's strike out application is to be considered. I asked if C was applying to strike out all of the claim or only some of it. Initially, Mr Sethi answered all of it but then, after taking instructions, he apologised and corrected himself and said only some of it. He said that the 1 May Materials were irrelevant to this case management hearing as it would turn on the existing pleadings. He submitted that, as no disclosure was yet required in the ET proceedings then, applying Brandeaux and Imerman, D1 should return all copies and trust the disclosure process. I asked if an employee needs to do that even if the documents they are being asked to disclose allegedly show wrongdoing on the part of the very solicitors who will be conducting the disclosure exercise. Mr Sethi said 'Yes'.
  92. Mr Sethi then took me through the various obligations which D1 owes to C, under the terms of her Director's Service Agreement ("DSA"), and in equity. I asked how those obligations are to be reconciled with her right to sue her employer. For example, paragraph 2.3 of the DSA requires D1 to use her best endeavours to promote the interests of C. Bringing a claim in the ET against C is not promoting C's best interests. Mr Sethi said that D1's statutory right to bring ET proceedings takes precedence over her contractual rights.
  93. Mr Sethi took me through the contemporaneous documents, cited above. I asked what changed, between 22 May 2025 and the week before, that resulted in C applying for a without notice application, even though they had discussed making an on notice application the week before. His first answer was that if C went on notice there was an 'obvious risk' that the source might be tipped off. I pointed out that AP had informed C about receiving the 1 May Materials from a source and this had not prompted a without notice application – on the contrary, JD had threatened an application on notice. Something must have changed from one week to the next. When I pressed Mr Sethi on what had changed, he said there had been a 'breakdown of trust' and they had 'lost all trust on a professional level' after AP had sent the 1 May Materials to the ET. He said there was 'no ground for sending it' to the ET.
  94. Mr Sethi submitted that Ds had been 'dubious and lacking in candour'. He relied on Ds not telling C the source. He submitted that a large proportion of the 1 May Materials is subject to LPP. He said there is a high risk of 'inadvertent misuse of the documents even if they were in a safe'. The mere fact of having access to the documents is important to restrain.
  95. Mr Sethi submitted that Ds were in breach of the Goose J Order. I asked where that issue went to. He said that I could either give Ds a second chance to give witness evidence or make a finding of contempt of court. He submitted that D1 was 'unambiguously and clearly' in breach of the Goose J Order because she admitted to retaining copies of some documents defined as 'Relevant Documents' which related to her employment dispute. He submitted that D2 was also in breach of the Goose J Order because he had failed to deliver up the Royal Mail envelope in which the 1 May Materials were received. He submitted that a speedy trial was in Ds' interests.
  96. Mr Gorton KC submitted that it was very important that, in Imerman and Brandeaux, the person being injuncted was the one who took the information. He said Mr Sethi was right that X v Y was appealed but the important point was that the ET can adjudicate on iniquity. He agreed that there was a serious issue to be tried but he said it should be tried in the ET, not the High Court. He said that C was trying to take the issue from the ET to the High Court, because the High Court was a costs jurisdiction. He pointed to the scale of costs already incurred by C in the High Court proceedings (hundreds of thousands of pounds) and said that the purpose of C bringing proceedings in the High Court was to intimidate Ds with the costs risk.
  97. Mr Gorton submitted that the idea that D1 should have to provide a 'complete surrender' of all the documents she had which might show an illegal sham to 'the very people implicated in the sham' was surprising.
  98. Mr Gorton submitted, on instructions, that D2 had not retained the envelope in which the 1 May Materials arrived but had 'ripped it up' and put it in the bin. He stressed that D1 was a solicitor of the highest integrity. He submitted she took the 'most cautious of lines'. He said she was following advice to send the 1 May Materials to the relevant judicial body and this was 'entirely proper conduct'. He said AP warned JD in advance that they would do this.
  99. He submitted that C only obtained a High Court order because they went without notice. He said it gave them a 'procedural springboard' and a 'gagging order' in relation to the ET. He said that the ET strike out application could not go ahead until this was dealt with, otherwise C would have a 'spectacular advantage'.
  100. Mr Gorton pointed out that, in Mr Sethi's skeleton, he asked me to read the 1 May Materials and that Ms Whitaker had provided her own summary of it. He submitted that Ms Whitaker was more than 'marking her own homework' and he gave me two examples where he said that Ms Whitaker's summary was the 'most favourable' possible.
  101. Mr Gorton submitted that there was a failure to provide Goose J with full and frank disclosure. He said it was suggested that D1 would destroy the 1 May Materials and he asked 'why would she destroy it when she wants to rely on it?'. He pointed to paragraph 63.5 of Ms Whitaker's first statement, cited above, and said it was not brought to Goose J's attention that what C had sought was a complete handover, rather than just asking for a copy. He also relied on a table of 48 alleged 'without notice failures'. I have a version of this table, akin to a Scott Schedule, which runs to 30 odd pages where C has added, in red, their responses to each of the 48 alleged failures. He took me to the transcript of the hearing before Goose J and submitted that the hearing was extremely short. He pointed to what Goose J said at the start of the hearing and how Mr Sethi KC did not correct them. He said C should be deprived of the benefits of the Goose J Order, including the directions for a speedy trial. He asked for a stay. He explained that Ds had not requested a stay in their application to set aside as they were dealing with matters 'at pace'.
  102. He said there was no contempt application and so I should not be concerned with the alleged breaches of the Goose J Order which were all misunderstandings. He said that D1 had only retained hard copies of Relevant Documents that she was not obliged, under Goose J's Order, to deliver up – e.g. documents such as her own grievance document.
  103. In reply Mr Sethi KC said that he did not submit that Ds could not deploy documents in the ET. However, she was in possession not just of confidential documents but also privileged documents and must be disabused of that straightaway given the high public interest in protecting LPP. He submitted that the jurisdictions of the ET and High Court were 'mutually exclusive' even if the issues may overlap. The ET had no jurisdiction to make any form of prohibitory or mandatory order. He said the ET 'cannot adjudicate on a breach of confidence'. He said that D1 had used the material to amend her Grounds of Complaint in the ET.
  104. I gave Mr Gorton KC the opportunity to reply to the reply. He said there was no evidence that D1 used the 1 May Materials to amend her Grounds of Complaint in the ET. Mr Sethi interrupted to say there was such evidence in Ms Whitaker's statement in the paragraphs that were redacted. Mr Gorton retorted that C had withdrawn that. He said this argument was 'specious'.
  105. Then, when I thought the hearing was concluded and was thanking the parties, Mr Sethi made the two applications I have referred to above, each of which I refused.
  106. Discussion

  107. Before turning to the issues each counsel asked me to address, I think it is helpful to take a step back and make some observations on these High Court proceedings.
  108. First, there is no real dispute between the parties that there are serious issues to be tried. The principal issue, in my judgment, is whether the 1 May Materials disclose a prima facie case of iniquity, in particular a deliberate attempt to conduct a sham redundancy process. If so, then LPP is likely lost and there may be a defence to any claim for breach of confidence. If not, then there has been a breach of confidence from which Ds may have obtained an unfair advantage: e.g. sight (at least by Ds' counsel) of LPP material which they should never have seen, and early disclosure of other confidential material which may not even be relevant to her claim.
  109. Secondly, the real dispute is not so much whether there is a serious issue to be tried but where that issue should be tried. In my judgment, the best forum in which to try the principal issue between the parties (set out in the paragraph above) is the ET. The case of Curless illustrates that the ET can try such an issue. It is a better forum to try such an issue than this court for several reasons. First, the ET is apprised of, and has in any event to adjudicate upon, the relevant facts which provide the context for the allegation that the 1 May Materials disclose a 'sham' redundancy exercise. Secondly, the ET is better placed than most judges sitting in this court to determine on which side of the line the 1 May Materials sits. In Curless the Court of Appeal restored the decision of the ET that the advice in question did not disclose iniquity but was, instead, the kind of advice which employment lawyers give 'day in, day out.' The ET is better placed to make that kind of assessment as, unlike this court, it deals with employment claims day in day out. Thirdly, the ET is a costs free jurisdiction. Parliament created the ET as a costs free jurisdiction so that employees could bring claims against their employers without the intimidating prospect that, if they lose, they might have to pay very large costs bills. I was told, in a note from Ds on 6 June 2025, that the costs bill they received from JD was more than £260,000. That is an eye-watering amount for litigation that has only been in existence for two weeks. I take Mr Sethi's point that this is a very high value ET claim. However, I have no evidence before me as to the personal wealth of Ds and I think most people, even wealthy people bringing high value claims, would be intimidated by the litigation risk of having to pay such high costs. In my judgment, this claim can be seen as a form of satellite litigation arising out of the ET claim – after all, the only thing D1 wants to use the 1 May Materials for is in support of her ET claim. There is a risk that if I ordered a speedy trial of this claim, ahead of the ET claim, the intimidatory prospect of a huge costs risk in this litigation might, in the words of Mr Gorton, 'crush' Ds. In other words, it might pressure D1 into abandoning a potentially meritorious claim or settling it on terms she would not settle if she did not have a steepling costs risk exposure. Finally, the ET is also best placed to address the consequences, if there has been an actionable breach of confidence. C asserts that D1 made amendments to her ET claim because of her knowledge of the 1 May Materials. Ds deny this. If C is correct, and D1 has made amendments to her claim form based on LPP information she should never have had, then those amendments could be struck out by the ET (as happened in Curless). The ET is far better placed than this court would be to determine whether any amendments D1 made to her ET claim were likely because she knew of the information in the 1 May Materials or for some other reason.
  110. Thirdly, in my judgment, both parties bear some responsibility for the fact that this matter has come to the High Court. If the parties had been behaving cooperatively, in the way the CPR expects, they could have reached a compromise which would have made these proceedings unnecessary: e.g. that AP and JD each retain copies of the 1 May Materials and the ET was invited to adjudicate on what should happen next, e.g. whether it should receive a copy. That did not happen because JD asked for too much and AP offered too little. I reject the submission of Mr Sethi that, in the circumstances of this case, D1 was obliged to comply with the requests in JD's letters of 16 May 2025 and surrender up all copies of the 1 May Materials to the very lawyers that were alleged to have advised C on how to perpetrate a sham redundancy. For the reasons set out above, I do not think that any of the authorities Mr Sethi took me to support that submission. On the other hand, I think that D1 and/or AP were inviting trouble when, over the weekend of 17/18 May, they sent a copy of the 1 May Materials to the ET in contravention of a clear instruction from C not to do so. They did not have to do that. They could have asked the ET for directions before sending the 1 May Materials to the ET. They could have negotiated with JD for a compromise to hold the ring which fell short of the 'complete surrender' JD were asking for but did not involve disclosing the 1 May Materials to a third party. It seems to me that the most likely reason that AP sent the 1 May Materials to the ET on the weekend was because they wanted to pre-empt and, they hoped, render redundant the High Court application JD was threatening to make on the Monday.
  111. Fourthly, I do not think there was any adequate justification for C making an application on 22 May 2025 without even informal notice. It looks to me like a retaliation for AP sending the 1 May Materials to the ET.
  112. Ordinarily, 3 days' notice of an application is required (CPR 25.6(2)). Where there is good reason for not giving 3 days' notice, informal notice should nonetheless be given. CPR 25.8(1)(c) provides as follows: '(1) Where the applicant reasonably believes that there is good reason for not giving the required notice, and where the application is to be dealt with at a court hearing… (c) except in cases where the applicant reasonably believes that secrecy is essential, the applicant must take steps to notify the respondent of the application.'
  113. In my judgment, there was no reasonable basis for any belief that 'secrecy' was 'essential' to C's application of 22 May 2025. D1 was a solicitor of good standing and an impeccable regulatory record. It was her solicitors, AP, who notified C's solicitors, JD, of the existence of the 1 May Materials. Often a without notice application is made because the applicant has found out about a respondent's wrongdoing and does not want the respondent to know they have found that out until they have the protection of a court order. In this case it was the opposite – everything C knew about the alleged wrongdoing, they knew through D1's solicitors. The two firms were in discussions about what to do about the 1 May Materials for several days. JD repeatedly told AP that they might make an application. There was no justification for suddenly cutting Ds out of the loop on 22 May 2025.
  114. The trigger for that change in approach seems to have been AP's decision to send the 1 May Materials in the post to the ET over the weekend. It is understandable that that provoked a reaction but there was no justification for that reaction to be an urgent application to this court without even informal notice. By that time, the one and only form of dissemination of the confidential information that was ever likely to happen had already happened – it had been sent to the ET. There was nothing left to guard against. This was not, as Mr Sethi KC accepted, a case of confidential trade secrets, or something like that, where there is a risk that the confidential information will be spread to competitors or posted on the internet.
  115. In oral submissions, Mr Sethi KC argued that there was no secrecy because the hearing before Goose J took place in open court. That misses the point. As Ds were not given even informal notice of the hearing before Goose J they had no reason to be present at the hearing or even aware of its existence. The hearing before Goose J may not have been secret, in the way that closed proceedings are. Even so, C's failure to warn Ds, even informally or with short notice, that the application had been made could only have been justified if C reasonably believed 'secrecy' was essential. Secrecy was not essential.
  116. Finally, in my judgment (subject to the issue of full and frank disclosure, discussed below) I should balance the competing interests by making an order that puts the parties into the position that they would have been in if they had acted cooperatively and reasonably.
  117. I now turn to the issues which the parties ask me to determine. I accept Mr Gorton KC's submission that I should begin with the application to set aside the Goose J Order. If I accept that submission, it may affect how I deal with many of the issues raised by Mr Sethi KC, e.g. whether or not Ds are in breach of the Goose J Order.
  118. The application to set aside the Goose J Order

  119. Mr Gorton applies to set aside the Goose J Order on two grounds: (1) C was unjustified in making the application without notice; and (2) C failed in its duty of full and frank disclosure.
  120. For the reasons set out above, I accept Mr Gorton's submissions on the first ground. I do not think there was any adequate basis for making the application without notice but, even if there was, there was certainly no adequate justification for failing to give even informal notice.
  121. In my judgment, that failure to give Ds even informal notice of the application would be enough, on its own, to set aside the Goose J Order. I don't therefore need to consider the second ground proposed for setting aside the Goose J Order.
  122. However, if I am wrong about that, I think the second ground would also justify setting aside the Goose J Order. I do not propose to go through the 48 items of alleged non-disclosure in the Scott schedule I have been provided with. That would not be proportionate and it would likely lead to the kind of 'mini-trial' that is deprecated against in Tugushev.
  123. I do, however, observe that this case is a good illustration of why the common law places such value on hearing from both sides. I very much doubt that any judge would have made the Goose J Order if they had heard from both sides. It is not that there are any glaring omissions in the evidence of Ms Whitaker or the skeleton argument of Mr Sethi KC which were provided to Goose J. The evidence was all there, to anyone who had time to read the exhibits to Ms Whitaker's statements, and the points that Ds might have taken, if present, are, by and large, at least alluded to briefly. However, the presentation of that evidence was not 'even-handed'.
  124. Mr Sethi KC said nothing at all in his skeleton argument about the case that might have been made by Ds – instead, he referred the court to certain paragraphs of Ms Whitaker's statement. Ms Whitaker's statement was 29 pages and 74 paragraphs long. The paragraphs on full and frank disclosure, to which Mr Sethi KC's skeleton referred, were not 'even-handed'. For example, Ms Whitaker suggests, in paragraph 63.5 that Ds 'rejected the safeguards sought' and 'threatened to destroy documents'. That presents a picture of defendants who were likely to destroy the 1 May Materials if no injunction was made. In truth, there was no risk of Ds destroying the 1 May Materials. On the contrary, they wanted to preserve the 1 May Materials as they wanted to use them in D1's ET proceedings. The allegation that AP 'threatened to destroy' documents was not even-handed either. AP offered to delete further copies, beyond the one that they sent to the ET, as they hoped that would reassure C that the 1 May Materials would not fall into the wrong hands. When JD objected, they agreed to preserve the information. In paragraph 68 of her statement, Ms Whitaker said: 'Had [Ds] been willing to comply with maintaining the status quo, there is absolutely no reason in my view why appropriate undertakings would not have been given.' This glosses over the fact that the undertakings JD sought from Ds would not have maintained 'the status quo' but would have required D1 and her solicitors to provide what Mr Gorton termed a 'complete surrender' of all copies of the 1 May Materials.
  125. Goose J was presented with a mass of evidence and submissions – a 29 page witness statement, over 100 pages of exhibits, and around 20 pages of legal argument. Mr Sethi's skeleton argument proposed 30 minutes reading time. I do not know how much time Goose J in fact had to read any of this material but it is notable that the application came on before him at 12.40 on the day it was made. Without receiving any counter-balancing submissions from Ds, it would have been easy for anyone, even a highly experienced judge such as Goose J, to lose sight of the wood for the trees. At the start of the transcript of the hearing before Goose J, he said it was 'not an unfamiliar situation where you are seeking to preserve confidential documents which have been or probably have been taken by D1' (emphasis added). I don't know on what basis Goose J said that the 1 May Materials were, or were probably, 'taken' by D1. I don't know whether that was just a slip of the tongue or whether Goose J thought that the account given by Ds – i.e. that D2 received the documents in an envelope from an unknown 'source' – was probably fictitious. If the latter, then that stark allegation (that the whole story is a lie and there is no source) has never actually been made by C.
  126. Either way, Goose J's summary of the facts at the start of the hearing cried out for correction. If Ds had been present, I am sure that they would have corrected the idea that the information was 'taken' by D1. They probably would have explained that D1 is a solicitor of good standing with an impeccable regulatory history and there was no basis for doubting her account of how she came by the 1 May Materials. They probably would have submitted that there was no risk of dissemination or destruction of the 1 May Materials as D1 wanted to use it in her ET proceedings and had already disseminated it in the only way she ever wanted to disseminate it – i.e. sent it to the ET.
  127. None of those points was made by Mr Sethi KC in his skeleton argument or his oral submissions. The statement of Ms Whitaker, to which Mr Sethi KC referred, did not do justice to these points and was not even-handed. As a result, Goose J had a very one-sided picture of the arguments for and against the injunctions he made.
  128. I can understand why it might have been difficult for C's legal representatives to have discharged their duty to provide the arguments 'in a fair and even-handed manner', which drew attention to evidence and arguments 'the absent party would wish to make'. Carrying out that duty pulls against a legal representative's instinct to present their own client's case in the best light. It was probably particularly difficult in this case, where C's legal representatives had, in Mr Sethi's words, 'lost all trust' in Ds' legal representatives after the 1 May Materials were sent to the ET. Even so, they were subject to that 'high duty' as a result of C's unwarranted decision to make the application without even informal notice. In my judgment, they failed to discharge that high duty.
  129. It follows, in my judgment, that the Goose J Order should be set aside. In Ds' application they asked for the return of the documents that were delivered up under the Goose J Order – e.g. the laptop, iphone, memory sticks and boxes of papers. It is not clear to me whether those things are the property of C. If so, it does not seem to follow that they need to be returned. I asked this of Mr Gorton and he said that the return of these things was not important. Ds only asked for their return because, as a matter of principle, C should have no benefits from an order that should not have been made. I recognise that the court should deter parties from making unwarranted without notice applications and/or failing in their high duty to the court in such applications. I recognise that one way of deterring such conduct is to strip the party who has made such an application of all benefits of the without notice order they obtained. However, in this context, I see little point in requiring C to return items which belong to them and which they can simply ask for again. I expect counsel to agree an order that sets aside the Goose J Order without requiring C to return any property, delivered up to C, which belongs to C.
  130. If the Order is set aside, is C entitled to any further relief and if so in what terms?

  131. This issue, Ds' issue 2, overlaps with C's issues 4 and 5. It is clear from Tugushev that if a without notice order is set aside that may have an impact on whether the court is willing to grant interim relief to the party who obtained the without notice order improperly. There is a balance to be struck.[2] On the one hand, there is the need to deter improper conduct in making without notice applications. That provides a powerful reason to deprive the party who made such an application from any interim relief. On the other hand, the interests of justice may require interim relief and costs may be a better way of penalising the inappropriate use of the without notice procedure.
  132. In this case, I think the balance is best struck by trying to bring the parties back, as close as possible, to the position they would have been if they had cooperated with one another. In my judgment, D1 acted properly in not reading the 1 May Materials and in stopping her husband when he began to convey the gist of it to her. I also think that AP acted properly in not reading the 1 May Materials and taking the position that they would not do so unless the ET said they could. I do not think that position should change now, just because the 1 May Materials has now been exhibited to Ms Watson's witness statement in these proceedings. If the current status quo is maintained, that will make matters less complicated if the ultimate conclusion is that the 1 May Materials do not disclose any iniquity, only confidential information that should never have been sent to D2.
  133. However, it may not be necessary for me to grant interim relief in that regard. If D1 and her solicitors are willing to provide suitable undertakings, that they will not read the 1 May Materials save if and in so far as it is disclosed to them in the ET proceedings, then that will be sufficient and I will grant no interim relief to C. If not, I will make an interim order to that effect.[3]
  134. I will make such an interim order, if no undertakings of the kind suggested above are provided, because there is a triable issue in this case, albeit an issue that could also be tried by the ET. It is in the interests of justice to preserve the status quo as it was before C's application to this court, pending any decision by the ET. That means preventing D1 and her solicitors from learning more about the confidential information than they already know.
  135. My order under CPR 31.22, made on 6 June 2025, needs to be amended to make clear that there is an exception - I permit the 1 May Materials to be deployed in the ET proceedings. However, with that exception, my 6 June 2025 order shall remain in force. That takes away any need there might have been for interim relief preventing Ds from misusing the 1 May Materials or disclosing them to any third parties.
  136. I see no need for any other form of interim relief, beyond that which I have set out above. There is no need for any preservation order. The commencement of these proceedings, and the usual duties to preserve relevant documents during litigation, are enough. There is no need for a non-inducement order. There is no evidence that either D has ever induced any employee or former employee of C to do anything which would be in breach of their contractual duty of fidelity and good faith to C. There is no evidence that the 1 May Materials were solicited by either D. Further, there are contractual, tortious and equitable obligations on D to prevent unlawful inducement in any event. There is no satisfactory evidential basis for making special provision, by order, in this regard.
  137. If the Order is set aside, should the action be stayed and if so on what terms?

  138. I will need further submissions on this issue, if the parties cannot agree it. I heard very little on the subject of whether to grant a stay at the hearing. It seems to me that the parties should reflect on my judgment and see if they can agree directions, whether for a stay or for a trial that is not 'speedy'. I do not order a speedy trial because, for the reasons set out above, I think it is better that the ET make rulings on the 1 May Materials rather than this court.
  139. I do not wish to grant an open-ended stay. If a stay is sought in any agreed or proposed order, it should be a stay until a particular date or event. If, instead, directions are sought, I suggest the directions be set towards a case management hearing at some point where the picture from the ET proceedings may be clearer – that would likely be a point after the 21-22 July hearing. I would also be grateful for the parties to consider whether the case should be transferred to the media and communications list.
  140. Other issues raised by C

  141. I have dealt with C's application for interim relief. In light of my decision to set aside the Goose J Order, most of the other issues raised by C fall away. It is not necessary for me to determine whether Ds were in breach of an order I have now set aside. In any event, I see no basis for the allegations that Ds failed to deliver up all they were required to deliver up. The evidence suggests that all hard copies of the 1 May Materials were delivered up. D1 was not required to deliver up all 'Relevant Documents', only those which were the 'property' of C. She says she has only kept Relevant Documents which were not the property of C, such as her own grievance document, and I see no reason to doubt her. I don't need to deal with the criticisms C makes of the witness statements Ds provided.
  142. I heard no submissions from either party on C's issue 6, i.e. whether Ds were entitled to relief from sanction for the alleged 'late filing' of (a) their evidence in reply (in breach of paragraph 2.1 of the Goose J Order), and (b) their application to set aside the Goose J Order (in breach of CPR 23.10(2)).
  143. If and in so far as relief from sanction is required, I would grant it. Any 'lateness' on the part of Ds was trivial. Ds and their legal representatives were being asked to respond in extremely short time to a large volume of material. The interests of justice weigh heavily in favour of granting relief from sanction because they should not have been placed under such time pressure in the first place.
  144. Costs

  145. I invite the parties to try to agree the order as to costs. The proceedings are not yet concluded and I have found that Ds have some responsibility for these proceedings coming into existence. On the other hand, if there is a winner from the 10 June hearing, it is Ds. Moreover, I think the final order on costs should reflect the public interest in discouraging the inappropriate use of the without notice application procedure.
  146. Postscript

  147. I emailed an embargoed draft of the judgment, set out in the paragraphs above, on 12 June 2025 to counsel for the parties. I did not set a hand down date as I wanted to hear from the parties first. I asked them, by 2 pm on Monday 16 June, to provide (inter alia) either (a) an agreed order, or (b) an order with two variations and either (i) dates they could both attend a hearing about these variations and a time estimate of how long that hearing would need to be, or (ii) succinct submissions in support of their version of the order. I indicated that I would try to accommodate a further hearing, at the same time as hand down, unless both parties were content to make written submissions on consequential matters.
  148. I did not receive either an agreed order or an order with two variations. Instead, I received two different orders. Nor did I receive dates they could both attend a further hearing (although it was subsequently clarified they could both attend 27 June). Mr Sethi asked for a further hearing and proposed a time estimate of 2.5 hours. Mr Gorton said his clients would prefer that outstanding matters were dealt with by written submissions.
  149. As the Claimant wishes to have an oral hearing, to resolve outstanding matters, I have made arrangements for there to be such a hearing on 27 June, with a time estimate of half a day. 30 minutes of that, at least, should be for an ex tempore judgment from me. I am intending to send today (17 June 2025) an extended embargoed judgment with this postscript added.
  150. By email on 16 June 2025 Mr Gorton asked me to hand down judgment immediately and make an interim order in the meantime, which stayed the action and dealt with permission to appeal. I decline to do that. I have not heard C's submissions on permission to appeal yet and, as a result, cannot make a decision on permission to appeal. That is part of the purpose of the hand down hearing. Further, I received hardly any submissions on Ds' application for a stay – that too should be dealt with at the hearing on 27 June 2025. Mr Gorton referred, in his email of 16 June 2025, to the fact that, without a stay, the Particulars of Claim would be required within 7 days. That is an obligation on C, not his clients. Besides, it is late and inconsistent for him to raise concern about this - at the hearing on 10 June 2025 he opposed an application from Mr Sethi for an extension of time for the Particulars of Claim. I said, at the time, that C could either file the Particulars of Claim on time or apply for an extension. I do not know which of those options C took. If C has made an application for an extension of time, C can ask for that to be placed before me to determine at the hearing, on 27 June 2025.
  151. Mr Gorton also raised the fact that the ET hearing was on 21 July 2025 and his client needed to prepare for that and the ET needed to be seised of the matter. This judgment will be handed down on 27 June 2025. That should give the ET enough time, before 21 July, to consider the implications of this judgment on the case management of D1's ET claim. My judgment will not change substantively and so the Ds can begin their preparation now (if they have not already) of what they intend to say to the ET.
  152. In the email which I will send today, attaching an embargoed judgment with this postscript, I will direct that (a); C should, by 4pm on 23 June 2025, file submissions on the consequential matters which are disputed; (b) Ds are to file a reply by 4pm on 25 June 2025.
  153. In case it helps the parties reach settlement or narrow the issues, I will set out my preliminary views on the order I will make. I am inclined to adopt the first three paragraphs of the draft order provided by Mr Sethi. I am inclined to grant a stay until 31 January 2026, with provision for the C to make an application to lift the stay on 28 days' notice. I am inclined to order C to pay Ds' costs of these proceedings to date. Those are preliminary views which I will reconsider if either party makes submissions that I should reconsider them.
  154. Appendix 1 – Judgment relating to hearing on 6 June 2025


     

  155. At the start of the hearing on 6 June 2025, I indicated the position that I found myself in – I received some (but not all) of the papers in relation to this case around 5pm yesterday. The estimated pre-reading time given by each counsel was wholly unrealistic. They each suggested pre-reading would take 2 hours. In the limited time I have had, I have spent considerably more than 2 hours reading into the case but that has been nowhere near sufficient. I have only scratched the surface.
  156. I asked officials in KBD listing to write to the parties to find out if counsel could accommodate certain hearing dates in the near future. In a note provided to me this morning, Mr Gorton KC raised objection to the idea of adjourning the matter. He raised the issue of costs. I am acutely conscious of the costs being incurred in this case but, as I put to Mr Gorton KC, it is even more important that justice be done. Mr Gorton KC accepted that albeit with a 'heavy heart'. After taking instructions he did not object to my proposal to adjourn the case to a date next week. It transpired that all counsel could accommodate Tuesday 10 June and so I adjourned this case to that date.
  157. We then dealt with housekeeping. In the course of doing so Mr Sethi KC referred to the bundles before the court and specifically referred me to the materials which he terms the 'Misappropriated Materials' but which I will call the '1 May Materials' and to a paragraph in his solicitor's witness statement which had been redacted in the version provided to the Defendants (but which appeared, in red, in the bundle provided to the court).
  158. Mr Sethi KC then asked me to make orders in relation to CPR 31.22 and 5.4D in relation to this material. He initially handed up a confidentiality undertaking he wished the Defendants to sign. I asked what point the undertakings would serve if I made the orders he sought. In response, Mr Sethi KC took instructions and did not press for the undertakings to be signed.
  159. Mr Gorton KC did not object to an order under CPR 5.4D but said that an order under CPR 31.22 was unnecessary as his clients were familiar with the need to keep material, disclosed in proceedings, confidential and not use them for other purposes.
  160. In my judgment, an order under CPR 31.22 is necessary. The confidential documents were referred to at the hearing before me, which was in open court. It follows that the exception in CPR 31.22(1)(a) would apply if I were not to make an order under CPR 31.22(2). I make an order under CPR 31.22(2), that the confidential documents not be used for purposes other than these proceedings, at least until further order. I do that in order to preserve the status quo until the hearing on 10 June 2025. The order can be revisited then. I do not think that the Defendants will be prejudiced by that as they have expressed no intention to use these documents for any purposes other than these proceedings in the short time until the hearing on 10 June 2025.
  161. Mr Gorton KC flagged that he intended to permit the First Defendant to read the 1 May Materials. Mr Sethi KC submitted that this would be a breach of Goose J's order, specifically paragraph 1 of Schedule 4(1) which prohibits the First Defendant from using any of the Confidential Information. Mr Gorton KC disputed that 'reading' amounts to 'using' the Confidential Information. In any event, he asked me to vary the order of Goose J in order expressly to allow the First Defendant to read the 1 May Materials.
  162. Mr Sethi KC submitted that it was unnecessary for the First Defendant to read the 1 May Materials. I asked why, if that was the case, his solicitor had referred to the 1 May Materials both in the redacted paragraph of her witness statement and in a table. After taking instructions, Mr Sethi KC said he would withdraw all reliance on the redacted paragraph of his solicitor's statement (i.e. paragraph 43). He also confirmed that he would not need to address the court, on 10 June 2025, on the contents of the 1 May Materials beyond the high level point that it was confidential and, for the most part, subject to legal professional privilege.
  163. As I indicated at the hearing, I am not minded, in the limited time I have had to consider the matter, to vary Goose J's order. That order was made, I am sure, after careful consideration by a highly experienced judge. It is not my function to advise the First Defendant on what precisely that order means. I limit myself to two observations.
  164. First, the Defendants have managed to make submissions, in robust terms, as to what the outcome of the applications before me should be, without the First Defendant having read the 1 May Materials. Those submissions did not turn on the actual contents of the 1 May Materials. The Defendants argue that the question of what should be done with the 1 May Materials can be left to the Employment Tribunal and this court does not need to be involved. As Mr Gorton KC conceded, if they are right about that, there is no need for the First Defendant or this court to read the contents of the 1 May Materials. It is telling that the Defendants' initial position before me was that this hearing should go ahead today. If they were in a position to argue matters today, I see no reason why they will not be in a position to argue matters on Tuesday without varying Goose J's order.
  165. Secondly, this application has been made far too late. The Defendants did not apply to vary this aspect of Goose J's order before today. The application to vary the order was made orally before me about half-way through this morning's hearing. That did not give me a proper opportunity to consider it.
  166. Finally, I observe that, as matters transpired, it seems unlikely that one day would have been sufficient. We spent one hour and a half dealing with preliminary matters and even that required numerous judicial interventions to steer counsel back to the issues I need to decide. We have one day to conclude matters and I will need counsel to focus on the essential points that this court needs to rule on, in order to conclude the case in that day.

Note 1   I have been provided with four bundles of authorities, two by each side, some in hard copy only, some in soft copy only, some paginated and some not. It would have been more helpful if the parties had provided a composite, paginated bundle of authorities in soft and hard copy.    [Back]

Note 2   In submissions made after I provided the parties with the embargoed judgment, C appeared to misunderstand what I meant by this phrase ‘there is a balance to be struck’. I am not suggesting that, where LPP applies, there is a balance to be struck between the public interest in preserving LPP and the public interest in reaching the correct conclusion in a given case. I recognise, of course, that there is no such balance and, where it applies and is not waived, LPP is absolute (see e.g. R v Derby Magistrates’ Court ex p B [1996] AC 487, 507). The balance I am referring to here is the balance between the public interest in discouraging inappropriate use of the without notice procedure and the interests of justice which may weigh in favour of granting interim relief.     [Back]

Note 3   This paragraph was in the embargoed version of the judgment, which I sent the parties on 12 June 2025. By a letter dated 24 June 2025 D1 and D1’s solicitors and D2 provided undertakings. After the hand down of this judgment, at the hearing to consider consequential matters, I will consider whether those undertakings are sufficient to make it unnecessary to grant interim relief.    [Back]

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