Notting Hill Genesis v Ali

The court may grant retrospective permission for collateral use of documents disclosed in Employment Tribunal proceedings. The discretion depends on the circumstances, with particular weight given to whether prospective permission would have been granted and to the consequences of refusal. Ownership of the documents, privacy rights, confidentiality, data-protection duties and the purpose of the proposed use may all be relevant. Where an injunction would restrict freedom of expression, Human Rights Act 1998 section 12(3) requires a sufficient likelihood of success at trial. An interim injunction may therefore restrain further disclosure of confidential information where the claimant is likely to establish the relevant obligation and breach, subject to appropriate protection for participation in related proceedings.

Notting Hill Genesis, a housing association, brought proceedings alleging breaches of data protection obligations, misuse of private information and misuse of confidential information by its former employee, Abdirahman Ali. It made two applications: retrospective permission to use documents disclosed by Mr Ali in Employment Tribunal proceedings, and an interim injunction restraining further disclosure.

The permission application followed an earlier hearing before Soole J, who had referred to IG Index Ltd v Cloete [2014] EWCA Civ 1128 and adjourned consideration until Mr Ali had notice. The central issues were whether permission could be granted retrospectively and whether the evidence justified interim injunctive relief.

1. Retrospective permission. The restrictions in CPR r.31.22 applied to documents disclosed in the Employment Tribunal proceedings. The High Court had power to grant permission for collateral use, including retrospectively. Retrospective permission was said to be rare, but the outcome depended on the circumstances. A principal consideration was whether permission would have been granted prospectively, although that was neither a necessary nor sufficient condition.

2. The court would have granted prospective permission. The proceedings sought to protect the claimant’s confidential information and its tenants’ privacy. The claimant also had data-security obligations under the GDPR. The uncertainty about the documents retained by the defendant, and the serious consequences of refusing permission, supported the exercise of the discretion. Where retained documents were originals, Process Development Ltd v Hogg [1996] FSR 45 CA indicated that permission might not be necessary; the distinction between originals and copies remained relevant.

3. The court rejected the allegations that the claimant’s failure to seek advance permission, or its conduct concerning the earlier hearing, had been deliberate or reckless. Permission was granted to rely on the documents disclosed in the Employment Tribunal proceedings.

4. Interim injunction. Because the requested injunction affected freedom of expression, Human Rights Act 1998 section 12(3) required the claimant to show that it was likely to obtain injunctive relief at trial. In the circumstances, that meant showing that success was more likely than not, applying Cream Holdings Ltd v Banerjee [2005] 1 AC 253 (HL).

5. The evidence showed that the defendant retained and had disclosed the claimant’s confidential information to several recipients. The claimant was likely to succeed at trial in restraining further disclosure. The order had to be qualified so as not to inhibit the defendant’s Employment Tribunal proceedings, while still preventing unnecessary disclosure of tenants’ personal information. The interim injunction was granted, with modifications, until trial or further order.