Pertemps Medical Group Ltd v Ladak

At the interim stage, a freely negotiated settlement agreement containing non-disparagement obligations may receive particular weight when the court applies the enhanced merits test required by Human Rights Act 1998, section 12(3). Truth is not, without more, a defence to breach of an express contractual prohibition on adverse or derogatory comments. Protected-disclosure provisions preserve the right to whistle-blow, but wider disclosures must satisfy the statutory requirements of reasonableness, including the audience selected and the availability of disclosure to an appropriate authority. Interim relief may restrain contractual breaches and harassment, provided that legitimate disclosures to the NHS Counter Fraud Authority remain permitted.

Pertemps Medical Group Limited sought interim injunctive relief against its former chief executive, Imraan Ladak. It alleged that a series of emails and wider communications breached a settlement agreement dated 4 December 2018 and constituted harassment contrary to the Protection from Harassment Act 1997. Mr Ladak maintained that his conduct formed part of bona fide whistle-blowing concerning alleged fraud, misconduct and risks to the NHS.

The application followed an interim injunction granted by His Honour Judge Worster on 19 July 2019 and continued on later adjournments. The issue before Pepperall J was whether the injunction should continue pending trial, having regard to contractual obligations, protected disclosures, freedom of expression and the statutory harassment claim.

1. Interim relief granted. PMG was likely to succeed at trial in obtaining injunctive relief and it was just to continue the order pending trial or further order. The order was subject to an express liberty to disclose matters to the NHS Counter Fraud Authority and retained a mechanism for seeking prior court approval for wider disclosures.
2. Section 12(3) of the Human Rights Act 1998 modifies the usual American Cyanamid approach. Interim relief affecting freedom of expression cannot be granted merely because there is a serious issue to be tried; the court must be satisfied that the claimant is likely to establish at trial that publication should not be allowed. A freely entered settlement agreement, supported by independent legal advice and substantial consideration, is a factor of particular weight: Mionis v Democratic Press SA [2017] EWCA Civ 1194, [2018] Q.B. 662; ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329, [2019] E.M.L.R. 5.
3. On the proper construction of clause 14.4, a comment may be adverse or derogatory even if true, and true statements may bring another into disrepute. Truth was therefore no defence to the contractual claim. Similar non-disparagement obligations had been enforced in RSM International Ltd v Harrison [2015] EWHC 2252 (QB) and Taher v Cumberland [2019] EWHC 524 (QB).
4. The court assumed for interim purposes that certain communications were qualifying or protected disclosures under Part IVA of the Employment Rights Act 1996. The wider disclosure to PMG’s customers could only be protected under sections 43G or 43H. The selected audience, the claimant’s stated purpose of increasing pressure, and the prior availability of disclosure to the NHS Counter Fraud Authority meant that the trial court was likely to find the disclosure unreasonable.
5. The communications were also likely to amount to a course of harassment intended to persuade PMG to provide further compensation, engaging sections 1(1A) and 3A(2)(b) of the Protection from Harassment Act 1997. The judgment made no finding on the truth of the serious allegations.