Linklaters LLP & Linklaters Business Services v Mellish [2019] EWHC 177 (QB)

Case date: 05/02/2019
Court: High Court, Queen’s Bench Division (Media and Communications List)
Area/s of law: Breach of Confidence | Injunctions
Barrister/s: Andrew Caldecott QC | Aidan Eardley

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Background

The Claimants were the well-known multi-national law firm (‘Linklaters’) and the company through which it employs its UK-based employees (‘LBS’).
From March 2017 the Defendant was employed by LBS as Linklaters’ Director of Business Development and Marketing. His contract of employment contained confidentiality obligations and clauses specifying that any dispute arising from the contract would be determined by the courts of England and Wales applying English law.

In the course of his work, the Claimants claimed, the Defendant would have acquired a substantial amount of confidential information, in particular through his membership of Linklaters’ Executive Committee, which handles matters of particular importance and sensitivity.

In June 2018 the Defendant was given six months’ notice that his contract would be terminated. He was to be paid his contractual entitlements and a substantial additional ex gratia sum. He was reminded that his contractual obligations of confidentiality would persist after his employment came to an end.

On 23 January 2019, shortly after receiving his final termination payment, the Defendant emailed Linklaters’ senior partner stating that he intended to “share my impressions of the current culture at Linklaters”. He stated that he would do this by reference to three specific examples, referred to in the Judgment as (1) the Munich Incident; (2) the NY Settlement, and (3) the London Settlement. He stated that he would be giving “interviews” in the first two weeks of February and that Linklaters should be prepared for media enquiries.

The Claimants applied for an interim injunction (issuing an application notice the day before the hearing) to restrain the Defendant from using or disclosing information about the three “examples” (limited, in the case of the Munich incident, where there was already much information in the public domain, to the identity of the female complainant). The Defendant was notified of the hearing but did not attend the hearing and was not represented. He did not respond to the Claimants’ invitation to identify the third parties to whom he intended to give interviews. It was unclear where he was located but it appeared most likely that he was in France.

The Judgment

Warby J gave an open judgment with a confidential annex. He decided as follows:

  • All practicable steps had been taken to notify the Defendant and it was appropriate to proceed on short notice and in the Defendant’s absence: [17]-[18] & [22];
  • If the Defendant was in France or another EU state, then there would be no need for the Court’s permission to serve proceedings outside England and Wales, because of the exclusive jurisdiction clause in his contract of employment (CPR 6.33(2)(b)(v)). However, because of the uncertainty as to the Defendant’s whereabouts, it was also appropriate to grant permission to serve the proceedings out of the jurisdiction and to permit this to be done by an alternative method, namely email: [19]-[21];
  • The Defendant had declined to identify those whom he intended to contact with his story, so the Claimants could not be expected to notify them of the application and it was not necessary or appropriate for the Claimants to be required to issue a general notification: [23];
  • Most of the hearing had to be in private in order to avoid destroying or undermining the claimed confidentiality: [24];
  • The law on breach of confidence and the applicable test for an interim injunction in such a claim is as stated, most recently, in ABC v Telegraph Media Group Ltd [2019] EMLR 5. Where the information is or maybe of worldwide interest and publication has taken place or is imminent abroad, the Court must take that into account when considering the practical effectiveness of the relief sought,  but where the claim seeks to enforce an express contractual obligation which is territorially unlimited the Court can grant an injunction with worldwide effect (see Attorney General v Barker [1990] 3 All ER 257:  [26]-[31];
  • There was sufficiently strong evidence that the Defendant intended to breach his obligations: [32];
  • The rights of the individual complainants involved bolstered the case for an injunction. There are strong policy reasons for upholding their legitimate expectations that matters raised in internal grievance procedures will be kept confidential. This encourages complainants to come forward: [33];
  • In general terms (as accepted by the Claimants), there is a legitimate public interest in large firms like Linklaters performing the social and moral duties they owe to their staff, but this cannot justify the indiscriminate disclosure of otherwise sensitive confidential information which others have a legitimate interest in keeping confidential. A general desire to talk about the “culture” of a large firm is insufficient. The position might be different if the evidence demonstrated a compelling picture of persistent or habitual wrongdoing, or if the firm had made misleading public statements that required correction: [34];
  • The claim was motivated partly by reputational concerns, but that was not the sole or main purpose of the application and an injunction was likely to be effective: [35];
  • Accordingly, Warby J granted an injunction, to be reconsidered at a return date. The Order included provisions requiring the Defendant to identify any journalists etc to whom he had disclosed the protected information with a view to publication in the media, together with protections for the hearing papers and documents on the Court file. 

Return date

On the return date, 11 February 2019, Warby J continued the injunction until trial or further order.

Andrew Caldecott QC and Aidan Eardley, instructed by Linklaters LLP, for the Claimants

The judgment is available here.