London Borough of Redbridge (Applicant/Claimant) v Lee Johnson (Respondent/Defendant)

JurisdictionEngland & Wales
JudgeMR JUSTICE SUPPERSTONE
Judgment Date26 September 2011
Neutral Citation[2011] EWHC 2861 (QB)
CourtQueen's Bench Division
Docket NumberCase No: HQ11X02937
Date26 September 2011

[2011] EWHC 2861 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Supperstone

Case No: HQ11X02937

Between:
London Borough of Redbridge
Applicant/Claimant
and
Lee Johnson
Respondent/Defendant

MR S FORSHAW (instructed by Barlow, Lyde and Gilbert) appeared on behalf of the Claimant

MR L JOHNSON appeared in person

MR JUSTICE SUPPERSTONE
1

On 12 August 2011, Edward Stewart J made an order on an application by the claimants in the following terms:

"Until 23 September 2011 or further Order of the Court, the Defendant must not make use and/or disclose and/or publish and/or copy any document or material (whether in hard copy form or stored on any computer or disc or other electronic medium in machine-readable form) containing any Confidential Information (as defined below) save for (a) in making any disclosure of information to the Solicitors Regulation Authority; and/or (b) the purposes of complying with the terms of this Order. Provided always that nothing in this Order shall restrain the Defendant from (1) seeking and obtaining legal advice and representation from qualified lawyers to conduct on his behalf this action; nor (2) conducting this action himself as a litigant in person."

2

Paragraph 4 of the order provides a definition of confidential information for the purposes of this order:

"(a) the email from Ms Laura Horovitz (of Barlow Lyde & Gilbert LLP) to Ms Kay Osborne (of the London Borough of Redbridge) sent on 8 October 2009 at or around 17.58 with the subject "FW: Mr Lee Johnson"; (b) the email from Mr James Major (of Barlow, Lyde & Gilbert LLP) to Ms Kay Osborne (of the London Borough of Redbridge) sent on 30 June 2009 at or around 17.33 with the subject "Mr Lee Johnson"; (c) any other emails and/or letters and/or communications sent from employees and/or agents and/or partners and/or members of Barlow, Lyde & Gilbert LLP to one or more of the Claimants and containing legal advice; (d) any documents containing or disclosing the content of those communications referred to at paragraphs (a), (b) and/or (c) above."

3

There are two applications before the court. The claimants apply for summary judgment pursuant to CPR 24/2 or, alternatively, for the continuance of the interim injunction granted by Edward Stewart J. By both applications they seek (1) an order preventing the defendant from disclosing or otherwise making use of the claimants' confidential information, save in limited circumstances; (2) an order that the defendant deliver up to Barlow, Lyde and Gilbert, the claimants solicitors, hard copy documents containing the claimant's confidential information; (3) an order that the defendant destroy computerised documents or files containing the claimants confidential information.

4

I heard the applications on Friday afternoon, 23 September. At the conclusion of the hearing, I reserved judgment until 2.00pm on Monday, 26 September. On 23 September, I extended the order made by Edward Stewart J to the giving of this judgment.

5

The factual background to these proceedings can be summarised shortly. Mr Johnson, the defendant, was employed by Trinity Catholic High School, the second claimant, as an ICT technician from February 2008 until his resignation which took effect on 16 August 2011. In the defendant's contract of employment, his employer is expressed to be the London Borough of Redbridge, the first claimant. However, as a matter of law, the defendant was employed by the school. The school is a voluntary aided school. The local authority provides legal and human resources services to the school pursuant to an agreement between the local authority and the school.

6

Since the termination of his employment, the defendant has brought five claims against claimants in the London East Employment Tribunal, in which he makes allegations of disability discrimination, contrary to the Disability Discrimination Act 1995 and Equality Act 2010; and most recently, constructive unfair dismissal contrary to sections 94 and 98 of the Employment Rights Act 1996.

7

On 9 July 2011, the defendant wrote to the first claimant informing the authority that documents had been disclosed to him pursuant to a subject access request made under section 7 of the Data Protection Act 1998 and that those documents included legal advice which has been provided by Barlow, Lyde and Gilbert (who I shall refer to as BLG) to the school. The defendant attached the two emails of 30 June 2009 and 8 October 2009 to his letter. In the material part of the letter the defendant says:

"I've also been able to briefly discuss these documents with my legal chum. He was appalled that any solicitor would give their client advice as shown on the email date 4 November 2009. On his suggestion I have registered a complaint with the SRA of gross professional misconduct by BLG, and the solicitors at BLG who are involved. … You should take note that I have registered a complaint on this issue with the LBR whistle blower, and I have publicised the November 2009 email to my union, with the suggestion that they in turn publish it to all their union members who have recently been selected for redundancy by LBR. You should also take note that the November 2009 email has been provided to the press, both local and national. It is, after all, in the public interest for all LBR employees' to understand the internal procedures at LBR for staff to be selected for redundancy."

8

BLG wrote to the defendant on 15 July 2011 and explained to him that the emails were legally privileged and confidential. Undertakings were sought from the defendant in relation to the further use of the emails which he refused to provide. Thereafter the defendant attempted to deploy the contents of the emails in the Employment Tribunal proceedings. The claimants made an application to the tribunal to prevent such use. The application was heard as part of a pre-hearing review on 21 and 22 July. That application was granted by the tribunal in a judgment sent to the parties with reasons on 4 August. Employment Judge Ferris gave his reasons for his decision on this issue at paragraphs 80 to 85 of the Reasons.

9

The defendant sought to appeal the decision to the Employment Appeal Tribunal. On 13 September the President, Underhill J, ruled that the appeal had no reasonable prospect of success so no further action would be taken on it. Specifically in relation to the judge's analysis at paragraphs 80 to 85 of the Reasons the President stated that the documents in question are not in the public domain.

10

On 29 July, despite the fact that the use of the emails were subject to consideration by the tribunal, the first claimant received a letter from the defendant in which he stated:

"I am copying this letter and the attachments to the local press, the national press, and anybody I can think of that might be remotely interested in the continuing illegal activities of LBR."

The attachments to the letter contained the emails.

11

By a further letter to BLG of 30 July 2011 the defendant stated:

"I have no intention whatsoever of signing your undertaking regarding your illegal advice of June issued in 2009."

12

On 8 August, the claimants issued an application notice for an interim injunction to be heard on 12 August. On the afternoon of 11 August, the defendant made an ex parte application to Edward Stewart J seeking an adjournment of the 12 August hearing, he said, so that he could attend a medical appointment the following morning. In the circumstances, the judge agreed to delay the hearing until 2.00pm on 12 August. Thereafter the following occurred. The defendant attended the hearing on 12 August. According to the witness statement of Mr Major dated 7 September at paragraph 15(2) the defendant was keen to establish that the interim order would not apply to him until at least 2.00pm on that date.

13

The defendant did not explain why he had such a concern. The defendant did not, during the course of the hearing, indicate that he had issued another claim in the High Court before 2.00pm. However, the following day the defendant wrote to BLG and to the court and stated that on 12 August he had "filed a protected writ" under claim number HQ11XD3029, which he has subsequently referred to as a negligence claim that he has brought against the claimants. He stated that he did not intend to serve the claim form at that time.

14

Thereafter, by letter of 16 August, BLG required the defendant to serve the claim form on them. The defendant has now provided BLG with a copy of the claim form which purports to quote the emails. The claimants maintain that the emails are subject to legal professional privilege in all actions including this action. The claim was struck out by Master Eyre on 16 September. That order has now been set aside, Mr Johnson having been given an extension of time in which to serve draft Amended Particulars of Claim. However, paragraph 3 of the strike out order remains. Paragraph 3 states:

"An injunction prohibiting disclosure of the documents attached to the claim-form in this action having been granted in the related action HQ11X02937 on 12 August [that is the proceedings with which we are presently concerned], no non-party is to be permitted to inspect the file in this action without the leave of the court."

15

Mr Johnson says that there was no deception or duplicity on his part in relation to the issue of the negligence claim. It is not, though, easy to understand why he made no mention of having issued the negligence claim at the hearing on 12 August.

16...

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  • Mr A Fadairo v Suit Supply UK Lime Street Ltd
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    • Employment Appeal Tribunal
    • 17 Enero 2014
    ...Collins J in ISTIL Group Inc v Zahoor [2003] 2 All ER at 74). (d) The Tribunal’s application of London Borough of Redbridge v Johnson [2011] EWHC 2861 (QB) to the case instant was inappropriate. Redbridge v Johnson is not on all fours with this case and was decided on whether the disclosed ......

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