Case Law: Linklaters LLP v Mellish, Protecting confidential information in the open – Alexander Vakil

12 02 2019

In a judgment of 5 February 2019, Mr Justice Warby granted Linklaters an interim non-disclosure injunction against a former employee and set a return date hearing (which was heard yesterday). Following the return date hearing, the continuation of the injunction was not opposed and the case was stood over until 22 February 2019, when a further hearing has been scheduled.

With some parallels with the recent case of ABC & Others v Telegraph Media Group Limited, the judgment is a helpful reminder of some of the procedural steps to be taken when applying for breach of confidence injunctions and a useful reminder that injunctions don’t need to be anonymised to be effective.

What was the case about? 

The defendant was a former employee of Linklaters and held a senior role within the business, also sitting on the firm’s Executive Committee. He was given six months’ notice that his contract of employment would be terminated and was reportedly paid a substantial ex gratia sum upon exit.

Following his departure, he is said to have contacted senior members of the firm and stated that he intended to “share [his] impressions of the current culture of Linklaters” and the “ongoing struggle Linklaters has with women in the workplace“. He went on to say that he would be giving “interviews” in the first two weeks of February and referenced three specific examples which the defendant said he would be using to “demonstrate Linklaters’ culture“.

Linklaters applied for an interim injunction to restrain disclosure of confidential information, but did not seek to prevent the defendant from publicising in general terms “his impressions of the current culture at Linklaters“.

Anonymity and injunctions 

It was not long ago that Lord Hain was lambasted in some quarters for taking it upon himself to name Sir Philip Green as the individual behind a breach of confidence injunction, thereby driving a coach and horses through its anonymity provisions.

Previous articles in relation to the cases of  PJS v NGN and ABC have highlighted the potential pitfalls of anonymous injunctions, in particular their tendency to get the press excited.

Whilst anonymity must surely have crossed the minds of those who sought the Linklaters injunction, it is interesting to note the less hysterical news coverage of it compared to the Philip Green injunction. “Linklaters wins gagging order blocking sexism claims” (FT.com) is not ideal but probably better than feverish speculation in the legal community as to who the anonymised firm was that obtained an injunction about work place culture.

Aside from the news coverage, it is worth pointing out some procedural and evidential reminders from the case.

1) Timing of injunction 

An application of this nature should be made by application notice, the requirement for such notice able to be dispensed with in cases of extreme urgency (CPR 23.4(2) and PD23A(3)). Whilst Linklaters initially suggested that this was a case of exceptional urgency, the position was reconsidered, so that by the time of the hearing, there was an application notice before the judge. Had the defendant suggested that publication was imminent (the evidence was that he gave the claimants a week’s notice of the intended interviews with third parties), the position may well have been different.

2) Notification of intended disclosure to the complainants

The evidence of Linklaters was that two staff members complainants whose identities were subject to duties of confidence were approached prior to the hearing and asked whether they wished their identities to be made public. Unsurprisingly, neither did. Whilst the claimants did not approach one of the individuals out of sensitivity, the Court found that it could be assumed that the individual concerned did not want their identity to be revealed.

3) Notification to the defendant 

Although the defendant was not present or represented, Linklaters notified him of the injunction hearing and provided him with all the court documents in advance. Section 12(2) of the Human Rights Act 1998 prohibits the court from granting an injunction unless it is satisfied that: (a) the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. In this case, the court was satisfied that Linklaters had taken all practicable steps to notify the defendant. Had there been a risk of ‘tipping off’ the defendant, this approach may have been reconsidered.

4) Duty of full and frank disclosure

Warby J reminds us in the judgment that a claimant seeking an injunction against a defendant who is not present at the hearing owes the Court a duty to make full and frank disclosure of any matter of fact or law that is material to the decision the Court is being asked to make. This is notwithstanding that Linklaters notified the Defendant of the application and provided all papers in advance. The Court was satisfied that Linklaters had ‘conscientiously’ sought to fulfil this duty. Linklaters’ Leading Counsel also made submissions on any factors which might count against the grant of relief and included points that might have been made by or on behalf of the defendant had he been present or represented.

5) Tightly defined list of confidential information 

The temptation when seeking a non-disclosure injunction is to define confidential information too broadly. The claimants specified eleven categories of information in the draft order which, on the evidence, were not in the public domain and were confidential in nature. Being precise in this way is much more likely to be successful. It is always possible to drop one or more categories.

6) Order for alternative service 

Given that Linklaters did not know the current residential address of the claimant, an order was sought for alternative service by email. The Court has in recent years been willing to grant such orders for service electronically and was prepared to do so in this case.

7) Order to deliver up the identities of third parties in receipt of confidential information

Given that the defendant indicated in the email to Linklaters that the confidential information would be provided to third parties, the order sought the disclosure by the defendant of the identify of any third parties to whom the defendant had disclosed the confidential information, thus giving the claimants the opportunity to, in the first instance, seek the delivery up of such information and obtain undertakings of non-disclosure, or, failing which, to seek a non-disclosure order against such third parties at the return date hearing or at another stage of the proceedings.

Conclusion

Overall, with the continuation of the injunction not being opposed at the return date hearing, it’s looking like Linklaters may be in for an easier ride than Philip Green.

Alex Vakil is a senior associate in the Media and Information Law team at Osborne Clarke


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12 02 2019
Case Law: Linklaters LLP v Mellish, Protecting confidential information in the open | Private Law Theory - Obligations, property, legal theory

[…] “In a judgment of 5 February 2019, Mr Justice Warby granted Linklaters an interim non-disclosure injunction against a former employee and set a return date hearing (which was heard yesterday). Following the return date hearing, the continuation of the injunction was not opposed and the case was stood over until 22 February 2019, when a further hearing has been scheduled …” (more) […]

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