KB-2025-001904 - [2025] EWHC 1602 (KB)

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.

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.

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.

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)).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.