Payone GbmH v Jerry Kofi Logo

The Claimant, a German payment services provider, sought a final injunction restraining the Defendant, a former employee, from further use or disclosure of Company Records and Confidential Information misappropriated during his employment. The Claimant relied on causes of action in conversion, breach of contract and equitable breach of confidence. The court held that (i) liability was established by a prior strike-out of any defence; (ii) an injunction is a discretionary remedy even where default judgment is appropriate under CPR 12.3(2)(a), and the court must weigh free expression (Article 10 and s.12 Human Rights Act 1998) against the legitimate aims of protecting property, confidentiality and personal data; and (iii) reference to documents in Employment Tribunal proceedings does not automatically destroy confidentiality: confidentiality can be lost either factually (extensive publicity) or as a result of the open justice principle, but the loss is a question of fact and degree and may be rebutted.

The judge concluded that most of the misappropriated material had not become publicly accessible in a way that negated confidentiality, that the Defendant had obtained and deployed the documents unlawfully, and that the balance of competing interests favoured a final injunction on terms similar to the earlier interim order, with carve-outs for communications with specified regulators and ongoing litigation. The Claimant was awarded costs on an indemnity basis and an interim payment on account.

This case concerns post-employment misappropriation and use of confidential Company Records by a former employee. The Claimant alleged that the Defendant had covertly copied, photographed and recorded Company Records and Confidential Information during his employment, retained them after termination, and then deployed them in Employment Tribunal proceedings and by disclosures to regulators. The Claimant sought a final injunction (and delivery up) rather than monetary remedies.

Background and procedural posture:

• The Defendant was employed from 15 November 2016 until 4 March 2021 and had contractual confidentiality and property obligations (notably Clauses 14 and 15 of the Contract).
• The Claimant commenced High Court proceedings seeking injunctive relief after correspondence and attempts at remediation, and an interim injunction was granted by Linden J on 19 May 2023 (reasons recorded 6 June 2023).
• A purported defence/witness statement by the Defendant was struck out by Lane J ([2023] EWHC 3038 (QB)); various appeals and applications by the Defendant were refused by the Court of Appeal and others, so no arguable defence remained.

Nature of relief sought: final injunctive relief restraining use and disclosure of defined categories of Confidential Information and Company Records, delivery up of materials and deletion with verification.

Issues framed by the court:

• Whether the Claimant was entitled to final injunctive relief given the strike-out of the Defendant’s defence.
• Whether the documents the Claimant sought to protect had entered the public domain through their inclusion in Employment Tribunal bundles or reference in ET judgments, thereby defeating confidentiality.
• How to reconcile the Defendant’s free expression and open justice arguments (Article 10(1) and s.12 HRA 1998) with the Claimant’s property and confidentiality interests.
• What terms of final relief would be proportionate, including carve-outs for regulatory disclosures and litigation use, and the appropriate costs order.

Reasoning and conclusions:

• The court emphasised that injunctions are discretionary and that the existence of default or struck-out defences does not remove the need to consider free speech and open justice principles. The court applied the two-limb approach derived from Mohammed v Ministry of Defence: (a) factual loss of confidentiality through sufficient publicity; or (b) legal loss through the open justice principle — but either limb requires a fact-sensitive inquiry.
• The judge found that, except for material expressly disclosed in the ET judgment itself, the underlying documents were not publicly accessible to members of the public and had not lost their confidential character. There had been no third-party applications to obtain ET bundle materials; press reporting relied on the ET judgment; and many documents were not read or relied upon by the Tribunal.
• The Claimant had not waived confidentiality by failing to seek ET confidentiality orders: the documents were principally introduced into tribunal bundles by the Defendant after unlawful appropriation and the Claimant reasonably sought a proportionate approach rather than wholesale attempts to place the entire bundle under restriction.
• The Defendant, having acquired the materials unlawfully, was correctly treated differently from an ordinary member of the public; he possessed additional context and non-public materials that could amplify harm.
• The balance of interests favoured the Claimant: final injunctive relief (largely following the interim order) was necessary and proportionate. The order included carve-outs for regulatory communications and the Defendant’s continuing litigation, but required deletion, return and verification where appropriate. The Defendant’s inadequate witness evidence of compliance justified continuing verification obligations.
• Costs were ordered to follow the event on an indemnity basis, with an interim payment on account of £100,000. The Defendant’s application to set aside prior orders was dismissed and certified as totally without merit. The Claimant did not seek monetary relief.

Wider observations: the judgment reiterates that open justice does not automatically trump confidentiality where materials have been misappropriated and that tribunals (including Employment Tribunals) have powers under their rules (eg Rule 50) to restrict public access in appropriate cases. The court preserved a tailored carve-out for genuine regulatory engagement and ongoing litigation while protecting personal data and commercially sensitive information from further dissemination.

The court granted a final injunction restraining the Defendant from further use or disclosure of defined Company Records and Confidential Information. The judge found the Defendant had unlawfully misappropriated and used the Claimant’s documents, that most underlying documents had not entered the public domain despite some references in the Employment Tribunal judgment, and that the balance between free expression and confidentiality favoured the Claimant. The order preserved carve-outs for communications with specified regulators and for ongoing litigation. Costs were awarded to the Claimant on an indemnity basis and an interim payment of £100,000 was ordered. The Defendant’s application to set aside earlier orders was dismissed and certified as totally without merit.

The judgment records prior interlocutory and appellate steps. Linden J granted an interim injunction on 19 May 2023 (written reasons dated 6 June 2023). Lane J struck out the Defendant's putative defence and refused permission to file a defence on 30 November 2023 ([2023] EWHC 3038 (QB)). The Defendant's applications for permission to appeal and related applications to the Court of Appeal were refused (Bean LJ refused permission to appeal Lane J on 26 February 2024; subsequent CPR 52.30/53.20 applications were dismissed). There were also Employment Tribunal and Employment Appeal Tribunal proceedings and related appeals described in the Appendix to the judgment.