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

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.

On 5 August 2024 D1 raised a formal grievance and speak-up complaint. C did not uphold that grievance.

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.

On 02 December 2024 D1 submitted a Data Subject Access Request (“DSAR”) to C.

On 2 January 2025 D1 filed a claim in the ET against C and four individual respondents.

On 2 March 2025 C provided its response to D1’s DSAR.

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.

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.

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:

“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.”

By letter dated 2 May 2025, D1’s solicitors Aaron & Partners (“AP”) wrote to C’s solicitors, Jones Day (“JD”), saying that:

“[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.”

An attendance note, dated 13 May 2025, of a telephone call between AP and JD records AP as saying that:

“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.”

On 14 May 2025 AP emailed JD in similar terms and said the following:

“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.”

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.

In a letter dated 16 May 2025, sent by email at 8.38AM, JD wrote to AP in the following terms:

“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.”

At 9.56AM on 16 May 2025 AP emailed JD as follows:

“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.”

In a second letter dated 16 May 2025 JD stated:

“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.”

At 3.16PM on 16 May 2025 AP emailed JD stating:

“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.”

At 3.27PM on 16 May 2025 JD responded as follows:

“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.”

At 5.11PM AP responded to say:

“… 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.”

At 5.52PM JD emailed AP stating:

“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.”

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:

“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)...”

On Sunday 18 May 2025 AP sent an email to JD enclosing a copy of their letter to the ET.

On 19 May 2025 EJ Jenkins decided not to open the sealed envelope and instead ruled:

“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”

On 22 May 2025 C applied in this court for injunctive relief. No notice, even informal notice, was given to Ds of this application.

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’.

In paragraph 63.5 of Ms Whitaker’s statement she said the following:

“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.”

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.

The Goose J Order included the following:

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.

On 22 and 23 May 2025 the Goose J Order was served on Ds.

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.

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.

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.

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.

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.

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.

I asked the parties to agree a list of issues. They provided the following list:

“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: