Vaughan v London Borough of Lewisham & Ors

An interim injunction restraining allegedly defamatory statements in employment tribunal proceedings will rarely be granted. The court must not interfere with the proper conduct of proceedings before a tribunal with jurisdiction, particularly where the proposed statements may attract absolute privilege. The rule in Bonnard v Perryman applies where a claim is framed as harassment but its substance is defamation. Relief requires a sufficiently precise claim and injunction, and a clear case in which no substantive defence can succeed. Parallel High Court proceedings may be stayed where the employment tribunal was first seised, is the specialist forum, and is substantially advanced. The court should avoid duplication, delay, inconsistent decisions and abusive circumvention of tribunal case management.

The claimant, formerly employed by the first defendant, brought extensive employment tribunal proceedings concerning discrimination, whistleblowing, harassment, victimisation and unfair dismissal. She also commenced High Court proceedings in defamation and harassment against her former employer, employees involved in her management and dismissal, and an occupational health consultant.

She applied for an interim injunction restraining anticipated statements and publications in the employment tribunal proceedings, and permission to amend to add malicious falsehood. The first to seventh defendants opposed those applications and sought a stay of the High Court claim pending resolution of the tribunal proceedings. The eighth defendant was neutral but sought protection from an indefinite stay. The issues were whether interim relief was available and whether the High Court proceedings should be stayed.

1. Interim injunction. The application was refused. Its sole purpose was to prevent the first to seventh defendants from making statements in preparing for and defending the employment tribunal proceedings. That would interfere with the proper conduct and resolution of proceedings before the tribunal and constituted a clear abuse of process, analogous to Hunter v Chief Constable of the West Midlands and Apsion v Butler.
2. Statements made in the course of litigation are at least likely to attract absolute privilege. That protection reflects the public interest in enabling witnesses and parties to participate freely, notwithstanding the competing public interest in protecting reputation, as explained in Trapp v Mackie and Smeaton v Butcher.
3. The jurisdiction to restrain publication before trial is delicate and exercised only in the clearest cases. Under William Coulson & Sons v James Coulson & Co and the rule in Bonnard v Perryman, the court should not impose prior restraint where a substantive defence may succeed. The defendants intended to rely on justification, honest comment, qualified privilege and absolute privilege. The claimant’s assertion that those defences must fail was unsupported. Her pleaded case was also insufficiently precise as to the defamatory meanings and the terms of the proposed injunction.
4. The harassment claim did not avoid that analysis. Where the alleged harassment consisted of defamatory publications in the litigation, the same restraint applied. Although Iqbal v Dean Manson Solicitors contemplated, obiter, that exceptionally abusive litigation conduct might amount to harassment, the present case was materially different. The claimant had not shown conduct likely to be oppressive and unacceptable, nor that the statutory defence under section 1(3)(b) of the Protection from Harassment Act 1997 was likely to fail. She also failed to meet the threshold in section 12(3) of the Human Rights Act 1998, as explained in Cream v Banerjee.
5. Stay. The claim against the first to seventh defendants was stayed. The proceedings concerned substantially the same employment circumstances. The employment tribunal was first seised, had specialist jurisdiction, and had already devoted substantial resources to advanced proceedings fixed for a lengthy hearing. The interests of justice and convenience favoured allowing those proceedings to proceed first, avoiding multiplicity, delay, wasted resources and inconsistent decisions. Authorities concerning parallel unfair-dismissal and wrongful-dismissal claims were not analogous.
6. The question of a stay against the eighth defendant was deferred until his imminent strike-out application. The court would revisit the issue at that hearing.