In a sage reminder of the dangers of applying for without notice interim injunctive relief, the High Court handed down judgment in the case of Sinclair Pharmaceuticals Limited v Burrell and Perry [2025] EWHC 1602, and C’s application to appeal is refused by Rt. Hon.Lady Justice Elizabeth Laing (here).
Factual Background
Sinclair Pharmaceuticals Limited (“C”) is a medical aesthetics business. Burrell (D1) is a solicitor and remained, as at the return date of the injunction application, an employee of C’s. D1 had been dismissed by C on 19th November 2024 purportedly on the grounds of redundancy. C submitted a Data Subject Access Request (DSAR). A claim was filed in the Employment Tribunal on 2nd January 2025 by D1. C applied to strike out D1’s employment tribunal claim with the application in the Employment Tribunal due to be heard in July 2025.
Perry (D2) was D1’s husband. He received an envelope containing documents belonging to C. He believed some of these should have been disclosed as part of the DSAR request. These became known as the “1st May Materials.” D2 started to explain the gist of the information to D1 but D1 stopped him. Neither D1 nor her solicitors read the material. However, in due course C’s solicitors were informed of the existence of these documents by D1 and the contention that they should have been provided under the DSAR.
Correspondence ensued with C’s solicitors demanding that the documents be delivered up, and affidavits from D1 and D2. On 16th May 2025, solicitors for D1 advised that they would send the 1st May Materials to the Employment Tribunal and thereafter destroy any other copies. Solicitors for C indicated that unless there was immediate confirmation that the 1st May Materials would not be sent to the Tribunal and that documentation would be returned and not destroyed, an injunction would be “inevitable.” Following further exchanges solicitors for D1 confirmed that no data or evidence would be destroyed. However, on 17th May 2025, D1’s solicitors sent the 1st May Materials in a sealed envelope to the ET. On 19th May 2025, EJ Jenkins decided not to open the sealed envelope but made reference to the obligations of disclosure in the Tribunal.
On 22nd May 2025, C applied for an order without notice. Neither D’s attended. C’s solicitor provided a 29 page witness statement over 100 pages of exhibits and Counsel prepared a skeleton argument of around 20 pages. The without notice hearing took place before Goose J. The hearing began with Goose J stating that “You don’t need to explain in detail what the claim is. It is a fairly clear and not unfamiliar situation where you are seeking to preserve confidential documents which have been or probably have been taken by D1. Do you want to saying anything before we turn to the order itself?”
Goose J ordered the return of all copies of the 1st May Materials and made an order that D1 and D2 be restrained from disclosing the confidential information (amongst other orders). Both D1 and D2 challenged the order, arguing for dismissal of the interim injunction on the basis that there had been a failure to comply with the rules, practice directions and law and that the application was an abuse of process.
The High Court’s Decision
Rory Dunlop KC sitting as a Deputy High Court Judge agreed that the order of Goose J should be set aside. He found that there was no adequate basis for making an application without notice and noted that this was not a case where there was a requirement for secrecy – on the contrary everything that C’s knew about the wrongdoing was through D1’s solicitors. It was noted that the trigger for the without notice application was the decision to send material to the Employment Tribunal. That did not justify an urgent application without even informal notice.
Having been referred to the case of Tugushev v Orlov [2019] EWHC 2031 (which set out 13 points of principle relating to the duty of full and frank disclosure), the Judge also suggested that the order would be set aside on the basis that there had been a failure to make full and frank disclosure. Whilst the Judge accepted that the “evidence was all there, to anyone who had time to read the exhibits” he was critical of how that information had been presented by C’s legal team suggesting that it was “not even-handed.” In particular he was critical of the contention made at the without notice hearing that the D’s were likely to destroy information when in fact they wanted to preserve the material and use it in the Employment Tribunal proceedings. He noted that Goose J’s summary of the facts “cried out for correction” and that he had been presented with a “very one-sided picture of the arguments for and against the injunctions he made.”
In an important reminder to practitioners, the Judge noted that carrying out the duty of full and frank disclosure “pulls against a legal representative’s instinct to present their own client’s case in the best light,” and that practitioners are subject to a “high duty” when applying without notice.
The Judge also agreed with D’s that the Employment Tribunal was best placed to adjudicate over the issues for several reasons:-
Following the provision of undertakings, the case has been stayed to enable the Employment Tribunal to determine what action should be taken in relation to the 1st May materials.
This week Rt. Hon.Lady Justice Elizabeth Laing, examined Mr Dunlop KC’s judgment and refused the Claimant’s application to appeal, recognising the iniquity exception was a matter for the Employment Tribunal (§28).
Simon Gorton KC and Jack Mitchell represented the Defendants instructed by Aaron & Partners, successfully securing the discharge of the interim injunction.
This article was written by Oliver Isaacs.
