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

In the course of their submissions, each counsel referred me to various authorities.

Mr Sethi KC handed up a bundle of authorities (Footnote: 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.

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.

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.

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.

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.

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’.

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’.

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.

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.

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’.

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.

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).

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’.

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.

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.

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.

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).

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.

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:

“(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.”

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:

“(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.”