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

Mr Sethi KC submitted that there was a very serious issue to be tried. He said there was prima facie evidence that D1 and D2 were in breach of various duties. D1, in particular, was in breach of duties to C, who is still her employer, including ‘receiving, misusing, copying and disclosing privileged material for her own benefit, which might do harm to her employer’.

Mr Sethi KC took me through the relevant factual history. He referred to the forthcoming case management hearing listed in the ET for 21-22 July, where C’s strike out application is to be considered. I asked if C was applying to strike out all of the claim or only some of it. Initially, Mr Sethi answered all of it but then, after taking instructions, he apologised and corrected himself and said only some of it. He said that the 1 May Materials were irrelevant to this case management hearing as it would turn on the existing pleadings. He submitted that, as no disclosure was yet required in the ET proceedings then, applying Brandeaux and Imerman, D1 should return all copies and trust the disclosure process. I asked if an employee needs to do that even if the documents they are being asked to disclose allegedly show wrongdoing on the part of the very solicitors who will be conducting the disclosure exercise. Mr Sethi said ‘Yes’.

Mr Sethi then took me through the various obligations which D1 owes to C, under the terms of her Director’s Service Agreement (“DSA”), and in equity. I asked how those obligations are to be reconciled with her right to sue her employer. For example, paragraph 2.3 of the DSA requires D1 to use her best endeavours to promote the interests of C. Bringing a claim in the ET against C is not promoting C’s best interests. Mr Sethi said that D1’s statutory right to bring ET proceedings takes precedence over her contractual rights.

Mr Sethi took me through the contemporaneous documents, cited above. I asked what changed, between 22 May 2025 and the week before, that resulted in C applying for a without notice application, even though they had discussed making an on notice application the week before. His first answer was that if C went on notice there was an ‘obvious risk’ that the source might be tipped off. I pointed out that AP had informed C about receiving the 1 May Materials from a source and this had not prompted a without notice application – on the contrary, JD had threatened an application on notice. Something must have changed from one week to the next. When I pressed Mr Sethi on what had changed, he said there had been a ‘breakdown of trust’ and they had ‘lost all trust on a professional level’ after AP had sent the 1 May Materials to the ET. He said there was ‘no ground for sending it’ to the ET.

Mr Sethi submitted that Ds had been ‘dubious and lacking in candour’. He relied on Ds not telling C the source. He submitted that a large proportion of the 1 May Materials is subject to LPP. He said there is a high risk of ‘inadvertent misuse of the documents even if they were in a safe’. The mere fact of having access to the documents is important to restrain.

Mr Sethi submitted that Ds were in breach of the Goose J Order. I asked where that issue went to. He said that I could either give Ds a second chance to give witness evidence or make a finding of contempt of court. He submitted that D1 was ‘unambiguously and clearly’ in breach of the Goose J Order because she admitted to retaining copies of some documents defined as ‘Relevant Documents’ which related to her employment dispute. He submitted that D2 was also in breach of the Goose J Order because he had failed to deliver up the Royal Mail envelope in which the 1 May Materials were received. He submitted that a speedy trial was in Ds’ interests.

Mr Gorton KC submitted that it was very important that, in Imerman and Brandeaux, the person being injuncted was the one who took the information. He said Mr Sethi was right that X v Y was appealed but the important point was that the ET can adjudicate on iniquity. He agreed that there was a serious issue to be tried but he said it should be tried in the ET, not the High Court. He said that C was trying to take the issue from the ET to the High Court, because the High Court was a costs jurisdiction. He pointed to the scale of costs already incurred by C in the High Court proceedings (hundreds of thousands of pounds) and said that the purpose of C bringing proceedings in the High Court was to intimidate Ds with the costs risk.

Mr Gorton submitted that the idea that D1 should have to provide a ‘complete surrender’ of all the documents she had which might show an illegal sham to ‘the very people implicated in the sham’ was surprising.

Mr Gorton submitted, on instructions, that D2 had not retained the envelope in which the 1 May Materials arrived but had ‘ripped it up’ and put it in the bin. He stressed that D1 was a solicitor of the highest integrity. He submitted she took the ‘most cautious of lines’. He said she was following advice to send the 1 May Materials to the relevant judicial body and this was ‘entirely proper conduct’. He said AP warned JD in advance that they would do this.

He submitted that C only obtained a High Court order because they went without notice. He said it gave them a ‘procedural springboard’ and a ‘gagging order’ in relation to the ET. He said that the ET strike out application could not go ahead until this was dealt with, otherwise C would have a ‘spectacular advantage’.

Mr Gorton pointed out that, in Mr Sethi’s skeleton, he asked me to read the 1 May Materials and that Ms Whitaker had provided her own summary of it. He submitted that Ms Whitaker was more than ‘marking her own homework’ and he gave me two examples where he said that Ms Whitaker’s summary was the ‘most favourable’ possible.

Mr Gorton submitted that there was a failure to provide Goose J with full and frank disclosure. He said it was suggested that D1 would destroy the 1 May Materials and he asked ‘why would she destroy it when she wants to rely on it?’. He pointed to paragraph 63.5 of Ms Whitaker’s first statement, cited above, and said it was not brought to Goose J’s attention that what C had sought was a complete handover, rather than just asking for a copy. He also relied on a table of 48 alleged ‘without notice failures’. I have a version of this table, akin to a Scott Schedule, which runs to 30 odd pages where C has added, in red, their responses to each of the 48 alleged failures. He took me to the transcript of the hearing before Goose J and submitted that the hearing was extremely short. He pointed to what Goose J said at the start of the hearing and how Mr Sethi KC did not correct them. He said C should be deprived of the benefits of the Goose J Order, including the directions for a speedy trial. He asked for a stay. He explained that Ds had not requested a stay in their application to set aside as they were dealing with matters ‘at pace’.

He said there was no contempt application and so I should not be concerned with the alleged breaches of the Goose J Order which were all misunderstandings. He said that D1 had only retained hard copies of Relevant Documents that she was not obliged, under Goose J’s Order, to deliver up – e.g. documents such as her own grievance document.

In reply Mr Sethi KC said that he did not submit that Ds could not deploy documents in the ET. However, she was in possession not just of confidential documents but also privileged documents and must be disabused of that straightaway given the high public interest in protecting LPP. He submitted that the jurisdictions of the ET and High Court were ‘mutually exclusive’ even if the issues may overlap. The ET had no jurisdiction to make any form of prohibitory or mandatory order. He said the ET ‘cannot adjudicate on a breach of confidence’. He said that D1 had used the material to amend her Grounds of Complaint in the ET.

I gave Mr Gorton KC the opportunity to reply to the reply. He said there was no evidence that D1 used the 1 May Materials to amend her Grounds of Complaint in the ET. Mr Sethi interrupted to say there was such evidence in Ms Whitaker’s statement in the paragraphs that were redacted. Mr Gorton retorted that C had withdrawn that. He said this argument was ‘specious’.

Then, when I thought the hearing was concluded and was thanking the parties, Mr Sethi made the two applications I have referred to above, each of which I refused.