Linklaters LLP v Frank Mellish
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] EWHC 177 (QB) |
| Date | 05 February 2019 |
| Court | Queen's Bench Division |
[2019] EWHC 177 (QB)
Mr Justice Warby
IN THE MATTER OF AN INTENDED ACTION
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Caldecott QC and Aidan Eardley (instructed by Linklaters LLP) for the Claimants
The Intended Defendant was neither present nor represented
Hearing date: 31 January 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On Thursday 31 January 2019, I heard an urgent application for an injunction to restrain an ex-employee from disclosing information obtained from and relating to his employment by the claimants, which the claimants say is confidential information, protected by express duties of confidence owed to them by the defendant, pursuant to his contract of employment. The threat, according to the claimants, was to provide such information for publication in the media by unidentified organisations.
I granted the injunction for a short period, until a return date on Monday 11 February 2019, in substantially the terms sought. Those terms prohibit the disclosure of eleven specified categories of information. They allow (that is, they do not prohibit) the discussion of some issues which the defendant has said he wishes to raise, and the disclosure of some information about one of the topics covered by the order, even though that information may originally have been confidential in nature.
This public judgment summarises the case, and my reasons for granting the injunction. It will be in somewhat general terms. That is only fair and proper, when the hearing took place in the absence of the defendant, the injunction is only temporary, and the nature of the case and my decision upon it mean that some of the facts cannot fairly or properly be set out in a public judgment. There is a confidential annex to the judgment, which may not be inspected or reported, at least not until after judgment or further order.
The facts
For the purposes of this judgment it is sufficient to provide this summary, which is based on the evidence filed by the claimants.
The claimants are a well-known multi-national law firm (“Linklaters”), and the company through which it employs its UK-based employees (“LBS”). The defendant is an Australian national, aged in his late 50s, who previously worked for Deloittes. He is not a lawyer. His specialist training and experience lies in other fields. From 27 March 2017, the defendant was employed by LBS to work as Linklaters' Director of Business Development and Marketing.
Clause 10 of the defendant's contract of employment, dated 8 March 2017, included an express obligation of confidentiality which provide so far as relevant:
“ Confidential Information
…
You must not at any time, other than for the proper performance of your work:
— disclose to a third party (unless required to do so by law, regulation or an order of the court); or
— make use of
Confidential Information (as defined below) relating to a client, LBS, the Firm, or its or their partners or employees which you acquire in the course of your work and you shall use your best endeavours to prevent the use or disclosure of the same. This obligation continues for so long as such information remains confidential, including after you have ceased to work for LBS. The obligation shall cease to apply to information which comes into the public domain other than by reason of your default.”
Clause 10 contained a non-exhaustive definition of “Confidential Information”:
“Confidential Information” shall include (without limitation) client lists of the Firm, information regarding existing or prospective clients, partners and employees of LBS and/or the Firm, information concerning the marketing and promotional plans of the Firm and financial information relating to the performance of the Firm.”
The contract also contained an English law clause and an irrevocable submission by both parties to the exclusive jurisdiction of the Courts of England and Wales, in the event of “any claim, dispute or difference arising out of or in relation to this Agreement” (clause 16).
The claimants maintain that in his capacity as Linklaters' Director of Business Development and Marketing the defendant will have acquired a substantial amount of information about Linklaters, its partners and employees, that falls within the scope of this restriction. For present purposes that general proposition seems hard to dispute. In addition, the defendant was a member of Linklaters' Executive Committee. It is the claimants' case that this Committee handled matters of particular importance and sensitivity.
In June 2018, the defendant was given six months' notice his contract would be terminated. He left on terms that he would be paid his contractual entitlements and a substantial additional sum, which – it would presently appear, rightly – was characterised as ex gratia. The letter of termination expressly stated that this obligation was to persist after his employment came to an end. Given the gratuitous nature of the additional payment, that would appear to be by way of a reminder, rather than giving rise to any independent legal obligation.
On 11 January 2019, the defendant received his final termination payment. On 23 January, he emailed Linklaters' senior partner and the firmwide managing partner. He expressed dissatisfaction with the termination of his employment which, given his age, he suggested was effectively the end of his career. He acknowledged that the terms on which his employment had been ended were in accordance with the law. He stated that he intended to “share my impressions of the current culture at Linklaters” with particular reference to what he called “the ongoing struggle Linklaters has with women in the workplace”. He said that, to that end, he would be giving “interviews” in the first two weeks of February.
The email identified three “specific examples” which the defendant said “I will be using to demonstrate the Linklaters culture”. According to the e-mail, the defendant's motive was to allow Linklaters to prepare for the questions from the media. The three examples are the focus of the present claim. They are all matters that involve what the claimants say is confidential information relating to partners and/or employees of the firm, falling within the scope of clause 10. Details are set out in the Confidential Annex to this judgment. To allow some open discussion about them, they have been referred to, and I shall refer to them, under neutral labels (1) the Munich Incident, (2) the NY Settlement and (3) the London Settlement.
The claimants' application was for an injunction to restrain disclosure of (1) one specific item of information relating to the Munich Incident – the identity of the female complainant involved; (2) the identity of a a Linklaters' staff member who has been given the pseudonym “CP1” and those about whose conduct CP1 complained, along with two other categories of information about the NY Settlement; (3) the identity of another Linklaters staff member described as “CP3” and those about whom complaint was made by CP3, including a former Linklaters partner described as “CP2”; (4) any detail as to the internal discussions within Linklaters as to their public response to any third party interest or questions in relation to any of the above matters. The claimants did not seek to restrain the defendant from publicising in general terms his “impressions of the current culture at Linklaters”. In respect of the Munich Incident they sought only the restriction I have identified. They acknowledge, and it is clear from the evidence, there is much about the Munich Incident that is already in the public domain, both here and in Germany. The claimants have nonetheless reserved their right to claim damages in respect of anything that is published.
The evidence of Mr Bennett states that CP1 and CP3 have been consulted about the prospect of publication. Neither wished information about their cases to be made public. The claimants have not approached the complainant in respect of the Munich Incident out of sensitivity. Indeed, it does seem obvious that an approach would not be necessary. It can easily be assumed that the individual concerned would not wish their identity as the victim of a sexual assault to be revealed. The evidence is that the identity of this individual is not in the public domain, as one would expect.
Procedure
The application was made by Mr Caldecott QC for the claimants, before any proceedings had been issued. Strictly, therefore, the parties are the “intended claimants” and the “intended defendant”. I have described them as claimants and defendant for ease of reference.
The application papers included a draft order, following the form of the Model Order attached to the Master of the Rolls' Practice Guidance on Interim Non-Disclosure Orders [2012] 1 WLR 1003, and two witness statements in support, supported by a statement of truth, from Michael Bennett of the claimants.
The defendant was not present or represented at the hearing. Nor did he instruct any lawyer, or send anyone else to represent his interests. Nor did he submit any evidence or written representations. The Court is always wary of granting injunctions against absent parties. That includes, in particular, injunctions which affect free speech – protected by the Convention right to freedom of expression under Article 10. Section 12(2) of the Human Rights Act 1998 ( HRA) prohibits a court from granting such an injunction unless it is satisfied either...
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