Linklaters LLP & Anor v Mellish

For an interim injunction restraining threatened disclosure of confidential information, the claimant must show a sufficient threat or risk of publication, a likelihood that publication should not be allowed at trial, and a likely absence of any successful defence or justification. The court must balance contractual confidentiality duties against freedom of expression and the public interest. A freely negotiated contractual duty carries substantial weight, but it does not justify restraining general discussion where confidential details are not disclosed. The court must also consider the privacy rights of affected third parties, the public domain, proportionality, adequacy of damages and practical effectiveness. A worldwide injunction may be granted against a contracting party where the contractual obligation is territorially unlimited and the order can operate effectively.

Before proceedings were issued, Linklaters LLP and Linklaters Business Services sought an urgent interim injunction against Frank Mellish, their former Director of Business Development and Marketing. He had indicated that he intended to give media interviews about Linklaters’ workplace culture and to use three examples involving current or former personnel. The claimants contended that specified identities, settlement information and internal discussions were confidential under an express contractual obligation that continued after employment.

The intended defendant was notified but neither attended nor was represented. The court considered service, the absence of the defendant, the competing rights under Articles 8 and 10 of the Convention, and whether the threshold for interim relief was met. The central issues were whether there was a sufficient threat or risk of publication, whether publication was likely to be prohibited at trial, and whether an injunction was justified and effective.

Application granted. The court granted a short-term interim injunction, substantially in the terms sought, pending a return date.

1. The claimant had to establish a sufficient threat or risk that the defendant would publish and satisfy the court that it was likely to establish at trial that publication should not be allowed. Under section 12(3) of the Human Rights Act 1998, “likely” normally meant more likely than not, although a lesser prospect could suffice where the court needed only a short time to consider the evidence or publication would have extremely serious consequences. The claimant also had to show that the three elements of breach of confidence were likely to be established.
2. The court had to consider prior public-domain disclosure, any compelling public interest in disclosure and the Convention rights engaged. The approach in ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329, informed by Mionis v Democratic Press SA [2018] QB 662 and HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, required attention to whether it was in the public interest, in all the circumstances, that confidentiality should be breached. A freely assumed contractual obligation made for good consideration carried substantial weight. The privacy rights of employees and partners involved in grievance matters also supported protection.
3. A general public interest in the proper treatment of staff, or a general wish to discuss an organisation’s culture, did not justify indiscriminate disclosure of sensitive confidential details. A compelling case might arise where individual allegations combined to show persistent or habitual serious wrongdoing, or where disclosure was needed to correct misleading public statements, but the evidence did not establish such a case.
4. The court retained a discretion after the threshold conditions were met. It considered the adequacy of damages, possible compensation for the defendant, abuse of process and practical effectiveness. The approach in McKennitt v Ash [2006] EWCA Civ 1714 did not prevent relief. An injunction could have worldwide effect against a contracting party under Attorney General v Barker [1990] 3 All ER 257 (CA) where the obligation was territorially unlimited and the order could operate effectively.
5. The court also authorised alternative service by email with text-message alerts, applying Abela v Baadarani [2013] UKSC 44. The order restricted disclosure of specified information, required disclosure of the identities of relevant media contacts, and restricted access to the court file and hearing papers.