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

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. (Footnote: 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.

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.

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. (Footnote: ³)

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.

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.

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.