Payone GbmH v Jerry Kofi Logo

An injunction restraining misuse of confidential information remains discretionary even after default judgment. Disclosure or reference to confidential material in Employment Tribunal proceedings does not necessarily destroy confidentiality. Loss of confidentiality depends on fact and degree, including the extent of publicity and the requirements of open justice.

Underlying documents do not automatically become public merely because parts are included in a hearing bundle or referred to in a judgment. The court must balance open justice, freedom of expression and confidentiality. An employee who unlawfully obtained and retained documents may properly be restrained more strictly than a true third party because of continuing contractual and equitable duties.

Payone sought a final injunction against its former employee, Jerry Kofi Logo, after he unlawfully copied, retained and disclosed confidential business information, personal data and company records. He had deployed some of the material in Employment Tribunal proceedings and argued that inclusion in bundles and references in public judgments had placed it in the public domain.

Liability for conversion, breach of contract and breach of confidence had already been established following the striking out of Mr Logo’s defence. The issue was whether the court should exercise its discretion to grant final injunctive relief despite the Employment Tribunal proceedings and Mr Logo’s reliance on freedom of expression and open justice.

1. Final injunction. The court granted a final injunction and dismissed Mr Logo’s application to set aside earlier orders, certifying that application as totally without merit. The injunction retained carve-outs for communications with regulators and use of information in ongoing litigation, including appeals.
2. Discretion and free expression. Default judgment did not entitle Payone automatically to an injunction in the terms sought. Injunctive relief was discretionary, and the court had to apply Article 10(1) of the Convention, section 12 of the Human Rights Act 1998, and the common law protection of free speech. Any restraint had to be necessary and proportionate to protecting confidentiality, property and the interests of clients and business partners.
3. Confidentiality and Employment Tribunal proceedings. Disclosure or reference by an Employment Tribunal does not necessarily destroy confidentiality. Confidentiality may be lost through sufficient publicity, assessed as a question of fact and degree, or because open justice requires the information to be treated as public. The latter presumption may be rebutted where there is good reason to preserve confidentiality. Mere inclusion in a bundle, or partial reference to an underlying document, does not make the whole document public.
4. Application to the evidence. The underlying documents were not readily accessible to the public. No true third party had attended the hearings or applied for access. The Employment Tribunal judgment disclosed only information necessary to explain its reasoning, while many documents had not been read or referred to. Open justice therefore provided little justification for further disclosure, whereas disclosure would prejudice Payone and affected third parties.
5. Employee’s special position. Mr Logo was not in the same position as a journalist or other true third party. He had obtained the material unlawfully and remained subject to contractual and equitable duties. He also possessed substantially more information than a member of the public could obtain. Treating him differently was therefore justified, and the balance favoured restraint.
6. Costs. Payone was awarded its costs on the indemnity basis, if not agreed, and Mr Logo was ordered to pay £100,000 on account.

The judgment records earlier procedural decisions in the same proceedings, including an interim injunction by the High Court and refusals by the Court of Appeal of permission to appeal. Those decisions were not under appeal in this judgment. The court determined the terms of the final injunction, costs and Mr Logo’s application to set aside earlier orders.