Sinclair Pharmaceuticals Limited v Jayne Katherine Burrell & Anor

A without-notice injunction requires strict compliance with the duties of procedural fairness, including reasonable justification for secrecy and full, frank and even-handed disclosure. Where the central issue concerns whether documents reveal iniquity affecting legal professional privilege, the specialist tribunal already dealing with the underlying employment dispute may be the appropriate forum. The court should preserve the status quo while avoiding orders that give one party an unfair procedural or costs advantage. Legal professional privilege, where applicable and not waived, is absolute. Interim relief must be tailored to the real risk shown by the evidence; speculative risks do not justify serious restrictions on open justice or additional preservation and non-inducement orders.

The claimant sought urgent injunctive relief against an employee and her husband after the husband received confidential documents, some apparently subject to legal professional privilege. The documents were sent to the Employment Tribunal in a sealed envelope, which declined to open them. The claimant then obtained a without-notice order requiring delivery up, preservation, witness evidence and restrictions on disclosure.

The defendants applied to set aside that order. The claimant sought continuation of parts of the relief, including restrictions on use, preservation and inducement. The central issues were whether the without-notice procedure was justified, whether the claimant had complied with its duty of full and frank disclosure, and whether the Employment Tribunal or the High Court should determine whether the documents disclosed iniquity.

1. The Goose J Order was set aside. The claimant had no adequate basis for making the application without notice and, in any event, no adequate justification for failing to give even informal notice. Under CPR 25.6(2) and CPR 25.8(1)(c), the circumstances did not establish that secrecy was essential.
2. The claimant also failed to present the application fairly and even-handedly. The material placed before the judge did not adequately identify the defendants’ evidence, their legitimate wish to preserve the documents for the Employment Tribunal proceedings, or the absence of a sound evidential basis for believing that they would destroy or disseminate them. That failure independently justified setting aside the order. The court declined to conduct a detailed mini-trial on all alleged non-disclosures, applying the caution in Tugushev v Orlov.
3. The principal issue was whether the documents disclosed a prima facie case of iniquity, particularly a sham redundancy process. If so, privilege might be lost and a defence to confidence might arise. If not, the defendants might have obtained an unfair advantage from confidential or privileged material. The Employment Tribunal was the better forum because it knew the employment context, was well placed to assess the alleged sham, and could determine the consequences, including striking out reliance on inadmissible material.
4. The court rejected the claimant’s submission that the defendants were required to surrender all copies to the claimant’s solicitors. The authorities concerning copied or unlawfully obtained documents did not establish such a rule for innocent receipt, particularly where wrongdoing by those solicitors was alleged. The court instead sought to restore the position that would probably have existed had the parties acted cooperatively.
5. The court maintained protection against further reading of the documents, unless disclosed through the Employment Tribunal proceedings, but permitted deployment of the documents in those proceedings. No further preservation or non-inducement order was justified. The court did not order a speedy trial and invited submissions on a time-limited stay or suitable directions. Any relief from sanction required by the defendants was granted because the alleged delay was trivial and arose from the unreasonable time pressure created by the defective order.