KB-2025-BHM-000174 - [2025] EWHC 2263 (KB)

The hearing of those cross-applications on jurisdiction and for an injunction was listed for 23^rd June 2025, but on 16^th June the Claimant applied to adjourn it due a health problem. That was refused on 16^th June by HHJ Owen on the basis that the material submitted by the Claimant, an experienced Consultant, was inadequate to show why he could not attend at Court. In any event, the matter came on before HHJ Owen himself on 23^rd June. The Claimant did not attend the hearing, and HHJ Owen gave a detailed judgment explaining why the material he had did not justify a medical adjournment and addressing the substance of the case. He noted that the Employment Tribunal had effectively converted the final hearing listed in November 2025 to a two-day preliminary hearing in relation to various matters in October 2025 which, as I understand, it is the latest word from the Tribunal. I should say that the Claimant has since produced additional medical information which explains that he had to attend an appointment on 23^rd June, which he considered to be a clinical emergency. But he did not properly put that material before HHJ Owen either on 16^th June in the original adjournment application, on 23^rd June, or indeed since then.

I have a note, helpfully prepared by the Defendant’s solicitors, of HHJ Owen’s judgment of 23^rd June. He refused the Claimant’s application to stay the County Court proceedings until the conclusion of the Employment Tribunal. The note records that HHJ Owen said:

“I am satisfied the County Court has jurisdiction to consider a claim brought by the Claimant. It seems to me the pleading is a contractual claim, breach of contract seeking to restrain. That is a matter the County Court has jurisdiction to consider under section 15 County Courts Act 1984. The Court has general jurisdiction in relation to any action founded in contract. I do not consider the matter needs to be transferred to the High Court or should be transferred to the High Court. If my conclusion were otherwise, I would strike out the claim rather than transfer. The parties choose where to issue. The Claimant chose to issue in the County Court rather than the High Court.”

I note there HHJ Owen there actually rejected the Defendant’s jurisdictional argument, which nevertheless Mr Keen renews before me for the High Court (although unsurprisingly does not suggest the High Court’s jurisdiction is narrower than the County Court’s).

Turning to the Claimant’s injunction application itself, HHJ Owen reminded himself of the test for making an interim injunction in American Cyanamid v Ethicon [1975] AC 396 (HL): namely whether there was a serious issue to be tried on the merits of the claim; whether damages would be an adequate remedy for it; and where the balance of convenience lay. HHJ Owen refused to grant the interim injunction to suspend the MHPS process pending the Employment Tribunal proceedings. His main reason was that he was not satisfied there was a serious issue to be tried, because the MHPS process appeared to have been followed and proposed a straightforward and fairly minor outcome of agreed training and a disputed verbal warning, which HHJ Owen did not see even arguably to be a breach of contract. Moreover, HHJ Owen went on to say that even if there were a serious issue to be tried on the merits and indeed even if the Claimant won, he could be adequately compensated in damages for reputation that would also vindicate him; and HHJ Owen added that even if he was wrong about that too, the balance of convenience pointed in favour of the status quo and against an injunction. I will elaborate a little on the last point later. HHJ Owen went on to make further case management directions, allocating the case to the Intermediate Track, providing for disclosure, witness and a trial window between February and April 2026, which of course would be after the Employment Tribunal had dealt with the preliminary hearing, because it would be sensible for the County Court to have the benefit of the Tribunal’s decision on issues of whistleblowing, whatever it turned out to be.