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

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.

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.

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.

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.

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.

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.’

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.

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.

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.

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.

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.