“10. When my wife returned home later that day, I told her that I had received some concerning documents and emails via the post that had been sent anonymously which I told her I assumed had been sent, I surmised, by someone at her work but that there was no covering note or other indication as to who had sent them, or why. I said I believed it included information that I would have expected to have been disclosed as part of her DSAR and that it appeared to paint a different background to her redundancy. In particular, it seemed clear to me that they had recruited a replacement of her role prior to starting her redundancy consultation, and I found that extremely surprising. I started to convey the gist of what I had read. My wife asked me to stop discussing it and told me not to let her see the documents. I did not share the contents with my wife. She was very upset about what I had told her and concerned about who had sent the documents to me.”
“[D1] has obtained additional material evidence that significantly reinforces her [ET] claims. Our client is confident that this material demonstrates that the grievance, redundancy and consultation processes to which she was subjected were not only procedurally and substantively flawed, but were also improperly manipulated with the objective of removing her from the business following her protected disclosures.”
“some information has come into our client's possession. She maintains it is relevant and strengthens her claims. We haven't seen it yet and we don't want to. Some information has been given to [D1], in hard copies which show the whole redundancy process to be a sham. They show that someone else had already been appointed into the role. I am conscious that we don't want to be getting involved in any criminal activity. I have said it needs to be dealt with properly. We have taken specific advice and we have been told that the information is to go into a sealed envelope and we should send it to the [ET] and let the [ET] do what they want. I don't want to look at it or see it but I can't ignore that I have been told it…before we send to the [ET] I want settlement to be explored.”
“I advised yesterday that our client has been provided with documentation that the provider maintains should have been provided under the DSAR and wasn’t. He has great concerns about the company’s conduct and as such has raised the concerns. I can’t comment on the content as I have not seen it and won’t see it unless we get tribunal directions to allow for this but I am advised that the content includes a lot of email correspondence clearly showing the redundancy exercise to be a sham and it also potentially calls into question whether correspondence between yourself and your client should remain privileged.”
“You are hereby required by 5pm on Monday19 May 2025 (i) to send us all copies of [the 1 May Materials]; and (ii) for you and your client to undertake to us in writing that neither you of you have retained any copies of [the 1 May Materials] (whether in hard or electronic copy or stored in the cloud) copies or transmitted or otherwise disseminated or allowed access to any other party. Your client is also required, by 5pm on Monday19 May 2025 , to provide to us in writing full details of the source of [the 1 May Materials] and a full account of how [the 1 May Materials] was obtained and provided to her.”
“information that we are advised your client should have disclosed as part of a … DSAR from our client was provided to our client’s husband by someone who I am advised considers themselves a whistleblower in this situation (I am not aware who this whistleblower is …). We are advised by our client that the documentation has not been seen or reviewed by her nor has it been seen or reviewed by myself or anyone here at the firm. Given the alleged content and duty of disclosure we have taken our own advice and have been advised to obtain the information in a sealed envelope and send it directly to the tribunal so our client has not seen it and nor have we. We will instruct our client that any copies or information still held is to be destructed [sic] by 5pm today. I can provide reassurance that apart form [sic] the sealed envelope we now have to send to the tribunal, we have not seen anything else in respect of this nor have we discussed anything more than an overview of content as a result of our client’s call to us about this. At which point we sought our own advice and are acting upon it.”
“5. The Documentation belongs to our client. To the extent it is privileged, our client has not waived such privilege. Nor has it waived confidentiality. In order to avoid the need for immediate injunctive steps against all those who may have received the Documentation or details of their contents, it must be sent to us no later than 5pm today by courier to the extent to which it is in hard copy. Your client is under management instructions, conveyed by us, to do so. We remind her of her contractual obligations … Our client is aware of its own obligations to preserve evidence which it will do upon receipt of the Documentation (we note that, conversely, you appear to be advising your client to destroy evidence in the course of proceedings – to be clear she must not do so). 6. Additionally, your client is under a duty to preserve evidence and she must not destroy any copies of the Documentation (whether in electronic or hard copy form). We require written undertakings in the form below to be provided by your client and her husband by 5pm today and affidavits (at paragraph 8) by 12pm Monday. Our client reserves its rights to take appropriate action should these not be provided. 7. We require an undertaking from each of your client and her husband that: a. they will immediately deliver up to Jones Day the Documentation in original format (to the extent in hard copy) and all other hard copy material belonging to Sinclair or any of its affiliated entities (other than material that is made available to third parties without restriction by Sinclair) that is in their possession, custody or control or which comes into their possession, custody or control in the future as soon as they are aware of the same. To the extent to which the Documentation or other company documentation is held in electronic format they will provide full details and access to an independent IT expert to allow proper preservation of a forensic image and thereafter deletion from their systems by that expert in a forensically sound manner; b. subject to their obligations at (a), they will preserve all documentation and information potentially relevant to the proceedings and to not now or at any time in the future, take steps to delete such material; and c. they will not now or at any time in the future use nor (save as may be required or permitted by law) disclose to any person any confidential or privileged information belonging to Sinclair in any way whatsoever other than to their legal advisors. 8. We further require an affidavit from each of your client and her husband: a. confirming full details of any third party to whom the Documentation (or any information regarding the contents of the Documentation) has been provided, including the means of transmission, dates and the identity of all such recipients and onward recipients of which they are aware; b. confirming any steps which they have taken to delete or otherwise destroy the Documentation and/or evidence of its transmission; and c. providing full details of where the Documentation is held, including electronically and including any copies, summaries or notes of the contents of the Documentation.”
“on advice we obtained, we are sending the documents that have been delivered to our reception in a sealed envelope to the tribunal. We had instructed our client to delete any copies soft or hard copy by 5pm today, that was before your correspondence, but it is still entirely appropriate as there is a full copy of the information/ documentation and it will be on its way by courier to the tribunal. You will have original copies of all of this in any event. I have already confirmed to you, aside of the sealed envelope we have not been in possession of any of the information/ documentation so there is nothing for us to keep or destroy. We have taken advice and we are happy that we are acting entirely appropriately by sending the documents in a sealed envelope to the tribunal. The tribunal will give appropriate directions. So you have my reassurance that we don’t have any of this information or documentation beyond the sealed envelope which is on its way to the tribunal. I disagree that there is anything inappropriate in the deletion of this in soft and/or hard copy by our client where it could be deemed in her possession. I have confirmed this will also be done by 5pm today. She has discharged her disclosure obligation by sealing it in an envelope and asking us to send it to the tribunal.”
“We will respond in more detail separately, but for now I reiterate that your client is under strict management instructions not to destroy and to return to us Company property, being the Documentation (as defined in our letter of today). Further, it is an offence under the DPA and a breach of court rules on preservation of evidence to destroy evidence in the course of litigation or when litigation is contemplated. We require disclosure of your legal advice that you are relying on as indicated in your email below. If you fail to confirm immediately that your client will return the Documentation to us and you will not send it to the Tribunal, an injunction application seems inevitable. We are prepared for that to be on notice, but it must obviously not be frustrated by your action of sending the documents to the Tribunal and, more importantly, your client wilfully destroying evidence when it is entirely unclear what it is that will be destroyed. You are, however, aware that it is privileged and belongs to the Company as well as containing personal data belong to the Company. Please confirm by return that you will pause matters until an injunction application can be issued on an urgent basis so that this can be determined before irremediable steps are taken.”
“… where reference has been made to deletion this was only in relation to any copies that may exist, and not to the sealed hard copy which Helen Watson has referred to in previous correspondence, meaning no actual data or evidence would have been destroyed only copies. This was intended to give your client comfort that our client did not retain copies of any of the data that had come into her possession. Nevertheless, we have in the meantime advised our client to preserve any copies of the documents that may exist until we can consider, take advice and reconvene with our client on Monday.”
“You have not confirmed that your client has undertaken to comply with your advice. Further, you have not said what has happened with the sealed envelope held by your firm. … If an application and hearing in the interims list is to be avoided on Monday morning, we require the entirely reasonable and justified undertakings set out in our letter of earlier today to be provided by 7pm this evening together with confirmation that the affidavits will be provided by midday on Monday.”
“7.1 A determination of whether privilege has been waived in any specific document within the Documentation which purports to be legal advice from Jones Day to [C]… An order for early disclosure to [Ms Burrell] of any document within the Documentation which is not privileged… …an order that [C] must disclose any non-privileged document contained in the Documentation at the Disclosure stage of the case (date still to be determined, during the Preliminary Hearing listed for 21-22 July 2025 )...”
“7.1 Determination of waiver of privilege could only be achieved by first determining whether privilege applied. In the absence of any understanding, by anyone currently, as to what the documents enclosed with the letter contain, it is difficult to see how that could be achieved. The Respondent will be under an obligation to disclose all relevant documentation which is not privileged, and it is not clear what early disclosure would achieve. As noted above, when a disclosure order is made, which will presumably happen at the preliminary hearing on 21 and22 July 2025 , it will require the Respondent to disclose all documents relevant to the issues to be determined, unless it has a right to withhold any, e.g. due to privilege. It is difficult to see what benefit would be gained by making specific reference to a requirement to disclose non-privileged documents, as that is the general position in any event. The Judge observes that it might possibly be of assistance to require the Respondent to confirm if it has relevant documents over which it asserts privilege, similar to the CPR process under Part 31, and that could be something discussed at the forthcoming preliminary hearing”
“Had the Respondents provided the entirely reasonable affidavits and undertakings which have been repeatedly sought (and refused), this application could have been brought on notice with appropriate time for the Respondents to respond (as suggested in my email of16 May 2025 ) … The fact that they have rejected the safeguards sought, threatened to destroy documents and then unilaterally proceeded to send documents to the Employment Tribunal means that Sinclair has a genuine fear about what they may now do following the indication from the Employment Tribunal on19 May 2025 that it is not minded to grant the immediate directions which they sought. Sinclair considers it entirely possible that the documents may now be sent elsewhere or further documents containing confidential information obtained from Ms Burrell’s source within Sinclair.”
‘Thank you for providing your documents electronically which I have read. You don’t need to explain in detail what the claim is. It is fairly clear and not an unfamiliar situation where you are seeking to preserve confidential documents which have been or probably have been taken by D1. Do you want to say anything before we turn to the order itself?’ [Emphasis added].
‘until writing this statement I had not seen’ them. Mr Sethi KC submitted that this indicated she had read them. Mr Gorton KC submitted that that was a misunderstanding - ‘seen’ did not mean ‘read’
‘It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy.’
‘Of course a claim for breach of confidentiality may be defeated by showing that the documents or information revealed unlawful conduct or intended unlawful conduct by the claimant: see Istil’s case[2003] 2 All ER 252 . But in the instant appeal it is not suggested that the documents themselves disclose measures taken to defeat the wife’s claim.’
“(i) The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court’s attention to significant factual, legal and procedural aspects of the case; (ii) It is a high duty and of the first importance to ensure the integrity of the court’s process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make; iii) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents; iv) An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made. The urgency of a particular case may make it necessary for evidence to be in a less tidy or complete form than is desirable. But no amount of urgency or practical difficulty can justify a failure to identify the relevant cause of action and principal facts to be relied on; v) Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention and for example to disclosure of related proceedings in another jurisdiction; vi) Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect; vii) A defendant must identify clearly the alleged failures, rather than adopt a scatter gun approach. A dispute about full and frank disclosure should not be allowed to turn into a mini-trial of the merits; viii) In general terms it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself; ix) If material non-disclosure is established, the court will be astute to ensure that a claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived; x) Whether or not the non-disclosure was innocent is an important consideration, but not necessarily decisive. Immediate discharge (without renewal) is likely to be the court’s starting point, at least when the failure is substantial or deliberate. It has been said on more than one occasion that it will only be in exceptional circumstances in cases of deliberate non-disclosure or misrepresentation that an order would not be discharged; xi) The court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties; xii) The court nevertheless has a discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter non-compliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts; xiii) The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure.”
“(1) Any application to the Court should ordinarily be made by application notice, filed and served on the respondent, with the supporting evidence, not less than 3 days before the hearing at which the Court is to decide whether to grant the relief sought:CPR 23.3 , 23.4, 23.7(1) & (3) andPD23A para 4.1. (2) An application may be made without serving a copy of the application notice if this is permitted by (a) a rule; (b) a practice direction; or (c) a court order”:CPR 23.4 (2). “Where an application notice should be served but there is not sufficient time to do so, informal notice of the application should be given unless the circumstances of the application require secrecy”:PD23A para 4.2.”
‘(1) Where the applicant reasonably believes that there is good reason for not giving the required notice, and where the application is to be dealt with at a court hearing… (c)except in cases where the applicant reasonably believes that secrecy is essential, the applicant must take steps to notify the respondent of the application.’
‘Had [Ds] been willing to comply with maintaining the status quo, there is absolutely no reason in my view why appropriate undertakings would not have been given.’