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

Mr Gorton applies to set aside the Goose J Order on two grounds: (1) C was unjustified in making the application without notice; and (2) C failed in its duty of full and frank disclosure.

For the reasons set out above, I accept Mr Gorton’s submissions on the first ground. I do not think there was any adequate basis for making the application without notice but, even if there was, there was certainly no adequate justification for failing to give even informal notice.

In my judgment, that failure to give Ds even informal notice of the application would be enough, on its own, to set aside the Goose J Order. I don’t therefore need to consider the second ground proposed for setting aside the Goose J Order.

However, if I am wrong about that, I think the second ground would also justify setting aside the Goose J Order. I do not propose to go through the 48 items of alleged non-disclosure in the Scott schedule I have been provided with. That would not be proportionate and it would likely lead to the kind of ‘mini-trial’ that is deprecated against in Tugushev.

I do, however, observe that this case is a good illustration of why the common law places such value on hearing from both sides. I very much doubt that any judge would have made the Goose J Order if they had heard from both sides. It is not that there are any glaring omissions in the evidence of Ms Whitaker or the skeleton argument of Mr Sethi KC which were provided to Goose J. The evidence was all there, to anyone who had time to read the exhibits to Ms Whitaker’s statements, and the points that Ds might have taken, if present, are, by and large, at least alluded to briefly. However, the presentation of that evidence was not ‘even-handed’.

Mr Sethi KC said nothing at all in his skeleton argument about the case that might have been made by Ds – instead, he referred the court to certain paragraphs of Ms Whitaker’s statement. Ms Whitaker’s statement was 29 pages and 74 paragraphs long. The paragraphs on full and frank disclosure, to which Mr Sethi KC’s skeleton referred, were not ‘even-handed’. For example, Ms Whitaker suggests, in paragraph 63.5 that Ds ‘rejected the safeguards sought’ and ‘threatened to destroy documents’. That presents a picture of defendants who were likely to destroy the 1 May Materials if no injunction was made. In truth, there was no risk of Ds destroying the 1 May Materials. On the contrary, they wanted to preserve the 1 May Materials as they wanted to use them in D1’s ET proceedings. The allegation that AP ‘threatened to destroy’ documents was not even-handed either. AP offered to delete further copies, beyond the one that they sent to the ET, as they hoped that would reassure C that the 1 May Materials would not fall into the wrong hands. When JD objected, they agreed to preserve the information. In paragraph 68 of her statement, Ms Whitaker said: ‘Had [Ds] been willing to comply with maintaining the status quo, there is absolutely no reason in my view why appropriate undertakings would not have been given.’ This glosses over the fact that the undertakings JD sought from Ds would not have maintained ‘the status quo’ but would have required D1 and her solicitors to provide what Mr Gorton termed a ‘complete surrender’ of all copies of the 1 May Materials.

Goose J was presented with a mass of evidence and submissions – a 29 page witness statement, over 100 pages of exhibits, and around 20 pages of legal argument. Mr Sethi’s skeleton argument proposed 30 minutes reading time. I do not know how much time Goose J in fact had to read any of this material but it is notable that the application came on before him at 12.40 on the day it was made. Without receiving any counter-balancing submissions from Ds, it would have been easy for anyone, even a highly experienced judge such as Goose J, to lose sight of the wood for the trees. At the start of the transcript of the hearing before Goose J, he said it was ‘not an unfamiliar situation where you are seeking to preserve confidential documents which have been or probably have been taken by D1’ (emphasis added). I don’t know on what basis Goose J said that the 1 May Materials were, or were probably, ‘taken’ by D1. I don’t know whether that was just a slip of the tongue or whether Goose J thought that the account given by Ds – i.e. that D2 received the documents in an envelope from an unknown ‘source’ – was probably fictitious. If the latter, then that stark allegation (that the whole story is a lie and there is no source) has never actually been made by C.

Either way, Goose J’s summary of the facts at the start of the hearing cried out for correction. If Ds had been present, I am sure that they would have corrected the idea that the information was ‘taken’ by D1. They probably would have explained that D1 is a solicitor of good standing with an impeccable regulatory history and there was no basis for doubting her account of how she came by the 1 May Materials. They probably would have submitted that there was no risk of dissemination or destruction of the 1 May Materials as D1 wanted to use it in her ET proceedings and had already disseminated it in the only way she ever wanted to disseminate it – i.e. sent it to the ET.

None of those points was made by Mr Sethi KC in his skeleton argument or his oral submissions. The statement of Ms Whitaker, to which Mr Sethi KC referred, did not do justice to these points and was not even-handed. As a result, Goose J had a very one-sided picture of the arguments for and against the injunctions he made.

I can understand why it might have been difficult for C’s legal representatives to have discharged their duty to provide the arguments ‘in a fair and even-handed manner’, which drew attention to evidence and arguments ‘the absent party would wish to make’. Carrying out that duty pulls against a legal representative’s instinct to present their own client’s case in the best light. It was probably particularly difficult in this case, where C’s legal representatives had, in Mr Sethi’s words, ‘lost all trust’ in Ds’ legal representatives after the 1 May Materials were sent to the ET. Even so, they were subject to that ‘high duty’ as a result of C’s unwarranted decision to make the application without even informal notice. In my judgment, they failed to discharge that high duty.

It follows, in my judgment, that the Goose J Order should be set aside. In Ds’ application they asked for the return of the documents that were delivered up under the Goose J Order – e.g. the laptop, iphone, memory sticks and boxes of papers. It is not clear to me whether those things are the property of C. If so, it does not seem to follow that they need to be returned. I asked this of Mr Gorton and he said that the return of these things was not important. Ds only asked for their return because, as a matter of principle, C should have no benefits from an order that should not have been made. I recognise that the court should deter parties from making unwarranted without notice applications and/or failing in their high duty to the court in such applications. I recognise that one way of deterring such conduct is to strip the party who has made such an application of all benefits of the without notice order they obtained. However, in this context, I see little point in requiring C to return items which belong to them and which they can simply ask for again. I expect counsel to agree an order that sets aside the Goose J Order without requiring C to return any property, delivered up to C, which belongs to C.