Howard Beckett v Sharon Graham & Anor [2026] EWHC 1794 (KB)

2026] EWHC 1794 (KB)Case No KB-2024-004120
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice,Date 16 July 2026
Strand,
London,
WC2A 2LL
Before
MR JUSTICE COPPEL
Between
HOWARD BECKETTClaimant(1) SHARON GRAHAMDefendant(2) UNITE THE UNIONDefendant
Anthony Hudson KC and Hayley Webster (instructed by Havard Law Solicitors) for ClaimantAdam Wolanski KC and Katya Pereira (instructed by Brett Wilson LLP) for DefendantsHearing Hearing date: Tuesday 7 July 2026
Approved JudgmentThis judgment was handed down remotely at 10am on Thursday 16 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]In these proceedings, the Claimant, a former Assistant General Secretary of the trade union “Unite the Union” (“Unite”), the Second Defendant, claims damages and an injunction in respect of alleged misuse of private information by Unite and by its current General Secretary, Ms Sharon Graham, the First Defendant. The claim arises out of an incident on 3 August 2022 when the Claimant, firstly, received a letter from Unite telling him that he had been suspended from his employment (“the suspension letter”), and secondly, a few hours later, received an email from Mr Joe Pike, a Sky News reporter, stating that Mr Pike understood that the Claimant had been suspended and asking for his comment. The Claimant claims that Ms Graham and/or Unite informed Mr Pike that the Claimant had been suspended and/or provided him with a copy of the suspension letter and that this constituted an infringement of his right to privacy and a misuse of the Claimant’s private information (§§9 and 22 of the Particulars of Claim).[2]The alleged leak of information to Mr Pike on 3 August 2022 and also on earlier occasions was one of a long list of reasons which the Claimant gave when he resigned from Unite on 12 January 2023. He subsequently claimed, before the Employment Tribunal (“ET”), that he had been constructively and unfairly dismissed by Unite, citing the alleged leaks as one of several breaches of the implied duty of the contractual term as to trust and confidence which, in his view, Unite had committed. His claim for unfair dismissal and further claims that he been unjustifiably disciplined and also prejudiced as a result of undertaking trade union activities, were dismissed by the Employment Tribunal (Employment Judge Nicolle, sitting with wing members) in a written judgment sent to the parties on 6 September 2024.[3]The application before the Court is by the Defendants, for strike-out of the Claim pursuant to CPR 3.4(2)(b), on the grounds that the central allegation in the Claim, that Ms Graham and/or Unite leaked private information concerning the Claimant’s suspension to Mr Pike on 3 August 2022, is subject to an issue estoppel, or is otherwise an abuse of process, because it was decided against the Claimant by the ET. There is also a subsidiary application for summary judgment in relation to an injunction remedy claimed by the Claimant.

The judgment of the ET

[4]The Claimant’s unfair dismissal claim was brought against Unite, as his then employer. Ms Graham could not be a defendant to the claim but her personal conduct was placed by the Claimant at the forefront of the claim. For example, §14 of the Grounds of Claim alleged that Unite, “upon the direct instructions of Ms Graham, initiated a protracted, callous, multi-faceted and at times an openly brazen campaign of systematic mistreatment of the Claimant. It did so to remove him from its employ and to destroy his reputation”.[5]The campaign of mistreatment was said to have had six strands (§22 of the Grounds of Claim), the fifth of which was that Unite “systematically misused the Claimant’s private information” (§42). The alleged leak on 3 August 2022 was the only misuse which was specifically pleaded but it was alleged (in §43) that Unite “repeatedly leaked the Claimant’s private information to the media”. The Claimant sought disclosure (inter alia) of emails and other communications between Unite employees and Mr Pike and some such disclosure was provided.[6]The list of issues for determination by the ET, first set out in a Case Management Order of Employment Judge Nash of 22 August 2023, included whether Unite had done any of eight “things”, including (issue 2.1.1(e)), “systematically misusing the Claimant's private information and breaching his rights of privacy and confidentiality”, whether Unite had, in consequence, breached the implied term of trust and confidence (issue 2.1.2), whether any breach was a fundamental one (issue 2.1.3), whether the Claimant resigned in response to any breach (issue 2.1.4) and whether the Claimant had affirmed his contract of employment before resigning (issue 2.1.5).[7]The hearing before the ET lasted 11 days and heard evidence from the Claimant, and from close colleagues and advisors of Ms Graham, but not from Ms Graham herself. The Claimant, Mr Simon Cox, who is Ms Graham’s Senior Advisor, Ms Gail Cartmail and Ms Barbara Kielim, who was at the material time Unite’s Director of HR, Training and Development, all gave evidence about the alleged leaks of private information. The ET made the following findings regarding the alleged misuse of the Claimant’s private information:
“55. It is apparent that [the suspension letter], along with other matters pertaining to the Claimant and the ongoing disciplinary process, found their way to Mr Pike of Sky News. Ms Cartmail [Unite’s Executive Head of Operations, who had emailed the suspension letter to the Claimant] says that she carefully controlled access to this and other relevant documents.” “Systemically misusing his private information and breaching his rights of privacy and confidentially [sic] 139. We find no evidence of misuse of the Claimant's private information . We do, however, find that there are substantial grounds to believe that the Respondent may have, whether inadvertently or deliberately, at whose instigation we are not in a position to say, leaked communications regarding matters pertaining to the him [sic], the police investigation and the Birmingham Project to Mr Pike and others . However, we find no evidence that that was done by, or at the instigation of, Ms Cartmail, Ms Kielim or Ms Graham, and therefore on the balance of probabilities we are not able to conclude that it was done and therefore we dismiss the contention that it constituted a breach of the implied term of trust and confidence.” “Leaks of information intended to have the effect of damaging the Claimant's reputation 158. This has already been addressed.”
[8]Under the heading of “General observations on the constructive dismissal claim”, the ET held:
“162. We find that the Claimant did not resign in response to any breach of the express or implied terms of his contract but rather that he resigned due to the fact that he had general frustration with the process and was unwilling to engage in answering questions regarding the affiliated services contracts. ... 163. We find that he affirmed the contract in relation to earlier alleged breaches to include his demotion. 164. Ultimately the breaches looked at either individually or cumulatively were not sufficient to give rise to a breach of the fundamental term of trust and confidence and therefore the claim for constructive dismissal fails and is dismissed.”
[9]The Claimant sought permission to appeal from the Employment Appeal Tribunal (“EAT”) against the decision of the ET on 11 grounds, six of which related to his unfair dismissal claim, and two specifically to the allegation that Unite had breached the implied duty as to trust and confidence in his employment contract by leaking information about him to the press. Those two grounds are as follows:
“Ground 3: The Tribunal’s finding that there was no evidence that there were leaks by Ms. Graham or others were perverse and contrary to the clear evidence heard: (a) In that there was clear evidence that showed that the leak must have come from Ms. Graham. The Tribunal also failed to address the evidence given by two live witnesses who had given evidence that it was not leaked from them. Furthermore, the Tribunal failed to have regard to Ms. Graham’s failure to give evidence to the Court in relation to this allegation. (b) There was absolutely no evidence relied upon that the leaks were inadvertent as concluded by the Tribunal. Ground 4: In any event, the Tribunal failed to consider whether the clear fact that there was a leak of the Appellant’s private and confidential information to the press, was sufficient to constitute a fundamental breach in that the Respondent was responsible for the same regardless of whether that was inadvertent or deliberate.”
[10]The Claimant has been granted permission to appeal on all 11 grounds. Grounds 3 and 4 were granted permission by HHJ Tayler following a Preliminary Hearing held on 14 April 2026. In his “Short Form Written Reasons for Granting Permission to Appeal”, HHJ Tayler stated, materially:
“Grounds 1 and 2, that have been permitted to proceed, challenge the rejection of the complaint of constructive dismissal. The grounds are wide-ranging and open up issues of perversity. I have concluded that grounds 3 , 4, 5 and 6 are essentially sub-elements of the general grounds about constructive dismissal that have already been permitted to proceed . It would be illogical to preclude them from being considered as part of the challenge to the rejection of the constructive dismissal complaint, that already asserts perversity . Grounds 3 and 4 relate to disclosure of information about the claimant to the press. The most significant aspect of these grounds relates to the question of whether it was necessary to identify which of the respondent's employees provided the material to the press . It is arguable that it was not necessary to do so. … The claimant is likely to face the challenge that the Employment Tribunal in any event decided why the claimant resigned, which was not any of the alleged breaches. That is a matter that can best be considered at the full hearing . Any breach made out would not have had to be the only reason for resignation, but just an effective cause of the decision to resign.”
[11]An oral hearing of the appeal will be held between April and September 2027.

Legal principles

[12]CPR 3.4(2)(b) provides that the Court may strike-out a statement of case if it appears to the Court that “the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings”.[13]In the recent case of Skatteforvaltningen (The Danish Customs and Tax Administration) v MCML Ltd (previously known as ED&F Man Capital Markets Ltd) [2026] UKSC 19 (“SKAT”), the Supreme Court adopted a description of issue estoppel originally given by Lord Sumption in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160, §17 as “the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties”.[14]The Court then stated the following principles relating to issue estoppel:
“41. The issue decided in the prior proceedings must have been necessary and fundamental to the decision if it is to give rise to an issue estoppel. Concha v Concha (1886) 11 App Cas 541 is authority for the proposition that issue estoppel only applies to determinations by the prior court that were necessary to decide the case or the issue before it. The Court of Probate's order in that case granting probate to executors under a will stated that at the time of the will and at the time of his death the deceased was a domiciled Englishman, but it had been unnecessary for the Court to decide that point in order to grant probate, which was the order sought. The Appellate Committee held that the finding and recitation of the deceased's domicile in the order did not create an issue estoppel. Lord Herschell LC explained (p 554) that the decision of the prior court giving rise to an estoppel: "must be limited to the matters necessarily decided in the litigation to which the executors are parties, and that if the executors choose, as it is said here they have chosen, to obtain a decision of the Court upon a point which is immaterial for the purpose of determining the rights in question between the parties, they cannot by tendering for decision an issue which is unnecessary for the determination of the case bind all parties claiming under the will, legatees of whatever description, because that finding has been obtained in such a suit under such circumstances by the executors. That really is the present case. If the residuary legatee is bound here at all he is bound by a finding of the learned judge which was quite unnecessary for the determination of what he had to decide, and by a finding of the learned judge which therefore could not be successfully appealed against." … "must be limited to the matters necessarily decided in the litigation to which the executors are parties, and that if the executors choose, as it is said here they have chosen, to obtain a decision of the Court upon a point which is immaterial for the purpose of determining the rights in question between the parties, they cannot by tendering for decision an issue which is unnecessary for the determination of the case bind all parties claiming under the will, legatees of whatever description, because that finding has been obtained in such a suit under such circumstances by the executors. That really is the present case. If the residuary legatee is bound here at all he is bound by a finding of the learned judge which was quite unnecessary for the determination of what he had to decide, and by a finding of the learned judge which therefore could not be successfully appealed against." … 43. Whether an issue arose on the parties' pleadings in the prior civil proceedings is critical in deciding whether its determination was necessary and fundamental. … 45. While the immediate foundation of the ultimate decision can give rise to an issue estoppel, elements of the prior court's reasoning leading up to that decision cannot. In Jones v Lewis, Bankes and Warrington LJJ held (at pp 344–345 and 351–352, respectively) that the reasoning of the prior court leading up to its decision did not give rise to an issue estoppel. In Blair v Curran, Dixon J observed (p 533) that in order to decide whether a prior determination can create an issue estoppel it was necessary to consider whether it was "the immediate foundation" of the decision or "no more than part of the reasoning supporting the conclusion". He explained (pp 531–533): "The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. ... in [an issue estoppel], for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. ... In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of the fact' must be taken as finally and conclusively established (Hoystead v Commissioner of Taxation [1926] AC 155). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation." 46. The critical point made by Dixon J is that an issue estoppel has a very narrow focus, being concerned with the facts that are fundamental or ultimate (in the sense that they necessarily had to be established to make good the cause of action being alleged or a defence put forward) and the legal quality of those particular facts.”
[15]In determining whether a decided issue said to give rise to an issue estoppel was fundamental to the earlier ruling, “another useful test is whether, given the right of appeal, the losing party could effectively appeal against the determination. If there can be no effective appeal against a determination this normally indicates that it is not fundamental”: Spencer Bower and Handley on Res Judicata (6th ed.), §8.25.[16]It is for the party alleging the issue estoppel in a second set of proceedings to establish an identity between what was decided in the first proceedings and an issue which is raised in the second proceedings (Spencer Bower and Handley on Res Judicata (6th ed.), §8.08 citing Turner v London Transport Executive [1977] ICR 952). In Turner, the Court of Appeal decided that a decision of an Industrial Tribunal was insufficiently clear as to what had been decided to give rise to an issue estoppel in later civil proceedings. Megaw LJ stated (p. 963B-D):
“It necessarily follows, therefore, apart from any other reason, that there cannot here be issue estoppel, because an essential prerequisite of issue estoppel is that the findings of the court or tribunal which are said to be sacrosanct in the sense that they cannot be challenged in the other court are sufficiently clear and precise. Of course, one would not suggest that minor or trivial or insignificant possibilities of argument on the fringes of what was decided would necessarily prevent the application of " issue estoppel." Where, however, there is such a total obscurity as there is here in relation to the matters which it is said are not to be allowed to be put in issue in the county court as to breach of contract, as to mala fides, as to "malice," as to "improper motives," in my judgment it is impossible to say that there could be an issue estoppel.”
[17]In order for an issue estoppel to arise, the determination on which it is based must be final and conclusive. A civil judgment is final and conclusive even though it can be appealed or is subject to a pending appeal: GFH Capital Ltd v Haigh [2020] EWHC 1269 (Comm), §41, citing Nouivon v Freeman (1889) 15 App.Cas. 1. In GFH Capital, however, the defendant’s wish to appeal the judgment which was said to give rise to an issue estoppel was relevant to whether there was some other compelling reason for trial (on a summary judgment application) or whether it was appropriate to grant a stay of execution of any judgment against the defendant. Henshaw J applied the principles which normally apply to whether to grant a stay pending appeal, a decision which may depend upon the strength of the proposed appeal. He held that the defendant had not shown that an appeal would have a realistic prospect of succeeding, even if the defendant were able to overcome the hurdles of being out of time to appeal and being dependent upon the grant of a fee waiver (§§161-162). In those circumstances, the possibility of appeal did not provide any basis for refusing summary judgment or for granting a stay of execution of that judgment.[18]Generally, an estoppel is binding only as between the parties to the previous litigation which, in the present case, did not include Ms Graham. An exception to this principle is where a party to the second proceedings who had not been a party to the previous litigation is nevertheless a privy of one of the original parties. For present purposes, that raises the question whether there is privity of interest between Ms Graham and Unite, which is the only respondent to the employment litigation[19]In Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 924, 2014 RPC 5, the Court of Appeal gave this guidance on assessing whether there is privity of interest between a new party and a party to previous proceedings (§32):
“a court which has the task of assessing whether there is privity of interest between a new party and a party to previous proceedings needs to examine (a) the extent to which the new party had an interest in the subject matter of the previous action; (b) the extent to which the new party can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party, and (c) against this background to ask whether it is just that the new party should be bound by the outcome of the previous litigation.”
[20]In Tyne & Wear Passenger Transport Executive v National Union of Rail, Maritime and Transport Workers & Anor [2022] EWCA Civ 1408, [2023] ICR 148, Underhill LJ noted that the third point made in that dictum was directed to the particular facts of Resolution Chemicals (where a new party was the claimant in the second set of proceedings, and the defendants prayed in aid an estoppel against the new party). However, the sentiment expressed was also applicable to the different facts of Tyne & Wear, where new parties sought to invoke an estoppel against the party common to both actions. He stated: “what matters is that the ultimate question is whether it is just to allow the issue in question to be relitigated”, which was a question of evaluation rather than of the application of hard-edged criteria (§§45-46).

Issue estoppel: discussion

[21]I agree with the Defendants that the ruling of the ET on whether Unite was responsible for leaking the suspension letter and other information about the Claimant’s suspension to Mr Pike is capable of creating an issue estoppel in the present proceedings. Whether or not an employee of Unite, be it Ms Graham or another, leaked the fact of the Claimant’s suspension and the suspension letter to Mr Pike is the central issue in the present proceedings. It was also fundamental to the ET proceedings in the requisite sense. Whether Unite had been responsible for leaking private information concerning the Claimant had been one of the fundamental breaches of contract on which the Claimant relied for his claim of constructive unfair dismissal. The alleged leak of the suspension letter and other suspension information was at forefront of that aspect of the Claimant’s case on breach of contract. As was made clear in the List of Issues for the ET hearing, the ET was required to decide whether or not there had been a breach of contract in this regard.[22]The Claimant submitted that the findings of the ET on the issue of leak of information to Mr Pike were not fundamental to its decision that the Claimant had not been dismissed, but were no more than findings of evidentiary facts or reasoning in support of the conclusion that there had been no breach by Unite of the implied term as to trust and confidence. It is true that the apparent significance of these findings is lessened by the fact that there were a number of different claims of breach of contract and also other hurdles which the Claimant had to surmount if his claim of constructive unfair dismissal were to succeed, and that he failed on each of the elements of a successful claim for constructive dismissal. But the number of other issues decided by the ET cannot detract from the status of the leak of the suspension letter and/or other suspension information as an alleged breach of the implied duty as to trust and confidence which could have given rise to a successful claim of constructive dismissal, and so as part of the “immediate foundation” of the ET’s decision (see the principles set out in §14 above). The ET’s findings in relation to that alleged breach were fundamental to its ultimate decision, as were its findings in relation to other alleged breaches. That view is supported by the EAT’s grant of permission to appeal the ET’s findings on the alleged leaking of private information (see §15 above).[23]I also agree with the Defendants that if the ruling of the ET on whether Unite was responsible for leaking the suspension letter and other information about the Claimant’s suspension to Mr Pike is capable of creating an issue estoppel then that estoppel would be binding as between the Claimant and Ms Graham, as well as between the Claimant and Unite. The Claimant’s case before the ET was that Ms Graham had been responsible for the campaign of mistreatment against him and it is clear from §139 of the ET’s judgment that the Claimant had alleged that Ms Graham (amongst others) had leaked the suspension letter and/or other suspension information to Mr Pike. Ms Graham could not formally be a defendant to the ET proceedings but it nevertheless clear that she was, de facto, a defendant and that the ET investigated and reached conclusions about her conduct. In those circumstances, applying the evaluative test in Tyne and Wear, it would not be just to permit the issue of Ms Graham’s responsibility for the leak of suspension information to be relitigated before the High Court.[24]However, I do not agree with the Defendants that the findings of the ET on the central allegation in the current proceedings, that Ms Graham and/or Unite leaked private information regarding the Claimant’s suspension to Mr Pike, are sufficiently clear and precise as to give rise to an issue estoppel (see the principles set out in §16 above).[25]On that central allegation, the ET’s finding in §55 of its judgment (see §7 above) is significant. That the suspension letter itself and not merely information that the Claimant had been suspended were sent to Mr Pike serves to confine the range of sources of the leak to those who had access to the letter, access which was, the ET recorded, “carefully controlled” within Unite.[26]The critical paragraph of the ET’s judgment is §139 which I set out again for convenience:
“We find no evidence of misuse of the Claimant's private information . We do, however, find that there are substantial grounds to believe that the Respondent may have, whether inadvertently or deliberately, at whose instigation we are not in a position to say, leaked communications regarding matters pertaining to the him [sic], the police investigation and the Birmingham Project to Mr Pike and others . However, we find no evidence that that was done by, or at the instigation of, Ms Cartmail, Ms Kielim or Ms Graham, and therefore on the balance of probabilities we are not able to conclude that it was done and therefore we dismiss the contention that it constituted a breach of the implied term of trust and confidence.”
[27]§139 is relied upon by the Defendants as a definitive rejection of the claim that Ms Graham and/or Unite leaked the suspension letter and/or other information concerning the suspension to Mr Pike. In my judgment, however, §139 is far from a clear rejection of the allegation that a member of staff of Unite leaked the suspension letter to Mr Pike: i) The paragraph commences with a wide-ranging and apparently definitive conclusion that there was “no evidence of misuse of the Claimant’s private information”. But the paragraph does not refer at all to the allegation of leak of the suspension letter. The ET makes specific mention of alleged leaks concerning “the police investigation and the Birmingham Project” (a reference to an investigation by South Wales Police into allegations against one or more Unite officials of bribery, money-laundering and fraud, and a project to build a hotel and conference centre in Birmingham, in respect of which financial wrongdoing has also been alleged). There is also a non-specific reference to “communications regarding matters pertaining to the him” which may or may not refer to the suspension letter. ii) It would be surprising if the ET did not, in §139, have in mind the leak of the suspension letter, given the prominence which that allegation had played in the proceedings before it. Yet the possibility that it did not gains some support from the fact that there was plainly at least some evidence to support this alleged misuse of private information, namely that access to the suspension letter was carefully controlled by Ms Cartmail, yet the letter had found its way to Mr Pike (and there was no suggestion that the Claimant himself would have sent it to Mr Pike). On that analysis, it might be said that the finding that there was “no evidence of misuse of the Claimant’s private information” could not have been intended to apply to the leak of the suspension letter. iii) There is an apparent tension between the finding of “no evidence of misuse of the Claimant’s private information” and the finding which immediately follows it, that there were “substantial grounds to believe that the Respondent may have, whether inadvertently or deliberately, at whose instigation we are not in a position to say, leaked communications”. It is difficult to see how there could both be substantial grounds to believe that there had been leaking of communication by Unite, and no evidence of misuse of private information. But that tension would be resolved if the ET had meant in the first sentence of §139 that there was “no evidence of misuse of the Claimant’s private information” by certain individuals. That reading of the first sentence of §139 would be consistent with the third sentence of the paragraph, in which the ET states that there was “no evidence that that was done by, or at the instigation of, Ms Cartmail, Ms Kielim or Ms Graham”. On that basis, the first sentence would not undermine the finding in the second sentence of substantial grounds to believe that Unite had leaked information. Here, and in sub-paragraphs (iv)-(vii), below, one must not lose sight of the point made in sub-paragraph (i) above, that it is not clear whether the leaking or misuse of private information being referred to by the ET included the provision to Mr Pike of the fact of the Claimant’s suspension and the suspension letter. iv) The words of the third sentence that there was “no evidence that that was done by, or at the instigation of” specified individuals provides further support for the reading of the second sentence as a conclusion that Unite had leaked communications, albeit it was not possible to say who within Unite had done so. The second “that” in the third sentence reads as a reference back to a conclusion that there had been leaking of communications by Unite. v) The second section of the third sentence, “therefore on the balance of probabilities we are not able to conclude that it was done” is relied upon by the Defendants as a definitive rejection of the claim of leaking by Unite, which is not inconsistent with there being substantial grounds to believe that Unite had been responsible for leaking. There is, however, an alternative reading of these words, which is that the ET meant that it was not able to conclude that leaking was “done by them”, that is, by the named individuals, leaving intact a finding in the second sentence that there had been leaking by somebody within Unite. vi) The final part of the third sentence – “and therefore we dismiss the contention that it constituted a breach of the implied term of trust and confidence” also bears two possible interpretations. The Defendants’ interpretation is that this conclusion supports there being an earlier conclusion that there had been no leaking at all from within Unite (as leaking by someone within Unite other than the three specified individuals could constitute a breach of the implied term of trust and confidence). The Claimant’s interpretation of these words is that the ET moved from a conclusion that the specified individuals were not responsible for leaking to a conclusion that there was no breach of the implied term as to trust and confidence, which was a non sequitur and a legal error. HHJ Tayler, granting permission to appeal on the grounds relating to §139, held that it was arguable that the ET had committed that legal error, in thinking that it was “necessary to identify which of the respondent’s employees provided the material to the press”. vii) The grant of permission to appeal on Ground 4, which asserts a “clear fact that there was a leak of the Appellant’s private and confidential information to the press” and HHJ Tayler’s reason for granting permission are consistent with a reading of §139 that the ET did find that there had been leaking by Unite, but had then held that that leak did not constitute a breach of contract because it was not possible to identify which individual Unite employee had been responsible for the leaking. viii) If the ET had intended to find in §139 that there had been no leak at all from within Unite of the suspension letter and/or other suspension-related information to Mr Pike, one might have expected an explanation as to how, if not sent to him from within Unite, the suspension letter had ended up in the hands of Mr Pike, as the ET found that it did in §55.[28]In short, it is unclear from §139 whether the ET decided that there had been no leak at all from within Unite of the fact of the suspension and the suspension letter or that there had been no leak of that information by Ms Graham, Ms Cartmail or Ms Kielim (or, possibly, that there was no decision at all in relation to that information). The degree of confusion which has been engendered by §139 may not be as acute as the “total obscurity” found by the Court of Appeal in Turner but it goes significantly beyond “minor or trivial or insignificant possibilities of argument on the fringes of what was decided” (see §16 above). In those circumstances, I would not strike-out the Claim on the basis that it has already been decided against the Claimant that Unite was not responsible for any misuse of the private information which is the subject matter of the Claim.[29]It is of course possible that the EAT, in its judgment on the appeal of the ET’s judgment, will clarify the meaning of §139 and give a definitive ruling as to whether the ET decided that there had been no leak at all from within Unite or merely no leak by the named individuals and whether that decision referred to the fact of the Claimant’s suspension and the suspension letter. It will decide whether the ET erred in law in its approach to the allegation of leak of the suspension letter and/or other suspension-related information and, if there was an error of law, decide whether to remit the case to the ET (which will likely depend upon the EAT’s conclusions on the other errors of law alleged by the Claimant in relation to the unfair dismissal claim). A possible outcome of the appeal is a re-hearing before the ET of some or all of the allegations of breach of contract giving rise to constructive dismissal, including the allegation of leak of the fact of the Claimant’s suspension and the suspension letter.[30]The grant of permission to appeal on all grounds is evidence in and of itself that the appeal has realistic prospects of success, notwithstanding that – so far as the unfair dismissal claim is concerned - it is primarily brought on the (usually, challenging) grounds that the factual findings of the ET were perverse. The difficulties which I have identified in §139 are further testament to the prospects of success of the appeal on the issue of leak of the fact of the Claimant’s suspension and the suspension letter.[31]The forthcoming appeal does not, for the reasons set out in §17 above, deprive the ET’s ruling of its status as a final and conclusive decision. However, even if I had concluded that the ET’s decision on the leak of information concerning the Claimant’s suspension was sufficiently clear against the Claimant, I would not have struck out the Claim at this stage, given the realistic prospect that the appeal will succeed, at least in relation to the issue of breach of contract caused by leak of suspension-related information. It would cause significant unfairness to the Claimant if the Claim were to be struck-out now, only for the employment proceedings ultimately to produce a different outcome on the allegation which is central to the Claim. Unlike the test for summary judgment applied in GFH Capital, the test for strike-out which applies in the present case does not have a proviso for there being some other compelling reason why a case or issue should be disposed of at a trial. But I have a discretion, albeit a narrow one, whether or not to strike-out a case which I have found to be an abuse of process (I “may” do so). In my judgment, this would have been an appropriate case for the exercise of that discretion so as not to strike-out at this time.[32]It will be open to either party to make an application for strike-out or summary judgment in the event that the employment proceedings produce a clearer outcome on the issue of leak of the suspension-related information. In principle, it would be wrong for the current proceedings to relitigate that issue or, put another way, to be used to mount a collateral challenge to a judgment of the ET. It is only the current lack of clarity as to what the ET decided on the critical issue which justifies the continuation, for the time being, of the two sets of proceedings.[33]Whilst there was a full debate before me as to the meaning and clarity of §139 of the ET’s judgment, the Defendants’ case was that the judgment was sufficiently clear to warrant strike-out of the Claim in its entirety. They did not mount an alternative case that the ET’s ruling was clear insofar as Ms Graham’s involvement in any leak of suspension information was concerned, even if the position in relation to Unite’s responsibility was less clear. Therefore, I was not invited to strike-out the Claim in relation to the First Defendant but not the Second. I would in any event have been reluctant to take that course, again given the realistic possibility that the EAT, and potentially the ET itself, will revisit and clarify or revise the findings in §139 of the ET’s judgment.[34]The Defendants did have a specific case in relation to Ms Graham, that even if she is not a privy in relation to the ET’s judgment then the claim against her is in any event an abuse of process because it mounts a collateral attack on that judgment. That case does not arise in light of my conclusion that Ms Graham is a privy.

The summary judgment application

[35]The only instance of misuse of private information alleged in the proceedings before me is the provision of the fact of the Claimant’s suspension and the suspension letter to Mr Pike (§22 of the PoC). §23 of the PoC pleads damage which the Claimant alleges he has suffered as a result of that misuse. §24 of the PoC states: “Unless restrained by the Court, the Defendants and each of them will further infringe the Claimant’s right to privacy and/or respect to his private and family life” [sic][36]§2 of the Prayer, on which the Defendants seek summary judgment seeks the following remedy:
“An injunction to restrain the Defendant whether by itself, its servants, agents or otherwise from leaking/disclosing, causing to be leaked/disclosed, publishing and/or causing to the published any information relating to the Claimant.”
[37]The Defendants submit that there is no prospect of relief to that effect being granted because the “Private Information” which is the subject of the proceedings, as to the Claimant’s suspension, has long been public knowledge, as a result of the publication of the ET’s judgment.[38]I agree that there is no prospect of the relief pleaded in §2 of the Prayer being granted, because it seeks to restrain publication of any information relating to the Claimant whether or not it is private information. If the Court were to consider granting an injunction at the conclusion of the Claim, it would have to be on considerably different and more constrained terms. However, the Defendants have not sought summary judgment on §24 of the PoC so if I were to grant the application the Claim would contain a plea that the Defendants are liable to further misuse the Claimant’s private information but no remedy to prevent that from occurring. That would be unsatisfactory. A better course, proposed by the Claimant, is to leave the claim for an injunction untouched for now, but on the understanding, conveyed by Mr Hudson KC for the Claimant, that the claim for an injunction will be revisited and narrowed, if it is to be maintained, later in the proceedings.

Conclusion

[39]For the reasons given above, I dismiss the application.