Dunlop: No basis to consider that secrecy was needed
The High Court has criticised lawyers who unnecessarily brought a without-notice application against an in-house solicitor and then did not present the case in the “fair and even-handed manner” required.
Rory Dunlop KC, sitting as a deputy High Court judge, set aside the interim order Sinclair Pharmaceuticals had obtained from Mr Justice Goose after finding it was unjustified in making the application without notice and then failed in its duty of full and frank disclosure.
Sinclair is a medical aesthetics business that in November 2024 made general counsel Jayne Burrell redundant, three months after she had raised a formal grievance and ‘speak-up’ complaint that were not upheld.
She is on year-long gardening leave and is suing Sinclair in the employment tribunal (ET). The company’s application to strike out the claim will be considered at a case management hearing in three weeks’ time.
On 1 May 2025, her husband, James Perry, received an anonymous letter containing internal Sinclair emails that raised doubts about how genuine the redundancy process was.
He began to convey their contents to Ms Burrell but she stopped him and neither her nor her solicitors, Chester firm Aaron & Partners (AP), have read them.
Two weeks later, AP sent a copy of them to the tribunal, after warning Sinclair’s solicitors, Jones Day (JD), that they planned to do this and being told not to.
Sinclair then successfully applied without notice for injunctive relief from Goose J, which required the couple to do various things, including delivering up the materials and other documents.
At the return hearing, Sinclair sought continuation of the relief while the defendants applied to set it aside.
Judge Dunlop accepted that there were serious issues to be tried, principally whether the materials disclosed a prima facie case of iniquity, in particular a deliberate attempt to conduct a sham redundancy process.
“If so, then LPP [legal professional privilege] is likely lost and there may be a defence to any claim for breach of confidence.
“If not, then there has been a breach of confidence from which Ds may have obtained an unfair advantage: e.g. sight (at least by Ds’ counsel) of LPP material which they should never have seen, and early disclosure of other confidential material which may not even be relevant to her claim.”
The real dispute, the judge went on, was where this should be tried – and he held it was the employment tribunal.
Both parties bore “some responsibility” for the matter reaching the High Court.
“If the parties had been behaving cooperatively, in the way the CPR expects, they could have reached a compromise which would have made these proceedings unnecessary: e.g. that AP and JD each retain copies of the 1 May materials and the ET was invited to adjudicate on what should happen next, e.g. whether it should receive a copy.
“That did not happen because JD asked for too much and AP offered too little.”
Judge Dunlop said there was no adequate justification for Sinclair applying for the order without even informal notice. “It looks to me like a retaliation for AP sending the 1 May materials to the ET.”
There was “no reasonable basis” to believe that secrecy was essential. Ms Burrell is “a solicitor of good standing” and has an “impeccable” regulatory record. It was her solicitors who notified Sinclair’s solicitors of the existence of the materials.
“Often a without notice application is made because the applicant has found out about a respondent’s wrongdoing and does not want the respondent to know they have found that out until they have the protection of a court order,” Judge Dunlop said.
“In this case it was the opposite – everything C knew about the alleged wrongdoing, they knew through D1’s solicitors.
“The two firms were in discussions about what to do about the 1 May materials for several days. JD repeatedly told AP that they might make an application. There was no justification for suddenly cutting Ds out of the loop on 22 May 2025.”
The judge said the case was “a good illustration of why the common law places such value on hearing from both sides”.
He said: “I very much doubt that any judge would have made the Goose J order if they had heard from both sides.”
There was a “high duty” on lawyers making a without-notice application to present the evidence in a fair and even-handed manner, and here Jones Day and counsel Mohinderpal Sethi KC “failed to discharge that high duty”.
As a result, “Goose J had a very one-sided picture of the arguments for and against the injunctions he made”.
Judge Dunlop set aside the order and said he would aim “to bring the parties back, as close as possible, to the position they would have been if they had cooperated with one another”.
Ms Burrell “acted properly in not reading the 1 May materials and in stopping her husband when he began to convey the gist of it to her. I also think that AP acted properly in not reading the 1 May materials and taking the position that they would not do so unless the ET said they could.”
At the same time, they “were inviting trouble” by sending the materials to the ET – they could have asked the ET for directions first or sought a compromise with Sinclair.
The “most likely reason” they did so was to “pre-empt and, they hoped, render redundant the High Court application JD was threatening to make”.
They provided undertakings not to read the materials save if and in so far as they were disclosed to them in the ET proceedings and the judge said he would consider at the consequentials hearing if they meant he did not need to grant Sinclair interim relief.
He urged the parties to agree that the High Court proceedings did not need to continue, granting a stay in the meantime, and to agree the order as to costs, saying this “should reflect the public interest in discouraging the inappropriate use of the without notice application procedure”.
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