Tata Consultancy Services Ltd v Sengar [2014] EWHC 2304 (QB)

Case No HQ14X02231[2014] EWHC 2304 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11 July 2014
Before
MR SIMON PICKEN QC(sitting as a Deputy Judge of the High Court)
Between
TATA CONSULTANCY SERVICES LIMITEDClaimantPRASHANT ASHOK SINGH SENGARDefendant
David Craig (instructed by Mishcon de Reya) for Claimant.The Defendant in person. for in personHearing Hearing date: 6 June 2014
JUDGMENTMR SIMON PICKEN QC:Introduction
[1]On Friday 6 June 2014 I heard an application for interim injunctive relief requiring the delivery up of certain property belonging to the Claimant (‘Tata’) and the deletion of any soft copies of that property, and prohibiting the Defendant (‘Mr Sengar’) from communicating or disclosing to any person Tata’s proprietary and confidential information as well as from inducing or procuring any third party to provide him with Tata’s proprietary and confidential information.[2]The hearing took all day, finishing at about 5 o’clock. In the circumstances, given the urgency of the matter, I informed the parties of my decision, which was to grant the relief sought by Tata (subject to certain modifications), but explained that I would give my reasons in the form of a written judgment. This is that written judgment.

Background

[3]Although much of the factual background is not in dispute, there are aspects where that is not the case, most particularly Tata’s allegation that Mr Sengar has engaged in blackmail. It should be borne in mind that, in dealing with such matters when setting out the factual background in this judgment, I am not seeking to make final findings in relation to disputed issues, and should not be taken as so doing, since it is not my role, on an application for an interim injunction, to assume the role which the judge at trial will need to perform.[4]In what follows I shall endeavour to describe the position in a manner which reflects both parties’ positions. In doing so, I have had regard, obviously, to the parties’ helpful skeleton arguments, as well as to their respective oral submissions, whilst considering the underlying documentation. I have also considered, with care, the witness statements which have been produced: from Tata’s witnesses, Mrs Nupur Mallick (Tata’s Head of Human Resources in the United Kingdom), and Mr Himanshu Kumar (Resource Deployment Analyst at Tata); and from Mr Sengar himself.[5]As Mrs Mallick explained, Tata (a multi-national IT consultancy company) is part of the Tata Group, one of India's largest conglomerates, having been established in 1968 as a division of Tata Sons Limited and incorporated as a separate legal entity in India in 1995, prior to its registration in this country as an overseas company in 2004. Operating in the United Kingdom for over thirty years, Tata now has around 7,000 employees working at more than 65 client sites. Its head office is in Grosvenor Place in London, but, significantly for present purposes, it also has an office in Leamington Spa, where Mr Sengar owns and runs a restaurant called Spicy Affair which is, or has been, frequented by Tata employees.[6]The present proceedings stem out of Mr Sengar’s efforts to obtain employment with Tata at the Leamington Spa office and, specifically, his belief that Tata discriminated against him by not giving him such employment. Mr Sengar explained that last October he was told about what he described as a “potential opening” at that office. He said that he showed his interest and that he had an interview the following month. In fact, in an undated witness statement, prepared for the purposes of certain proceedings commenced by Mr Sengar in the Birmingham County Court (about which more later) and exhibited to his witness statement in the present proceedings, Mr Sengar stated that “On or around October 2013 (actual date unknown)” and apparently more than once, he met Mr Randir Kamble, described by him as Tata’s “Head – Manufacturing Service Delivery & Projects” but by Mrs Mallick as Tata’s Senior Service Portfolio Manager Manufacturing, to discuss an opportunity. He explained in that witness statement that, after a “few meetings”,he forwarded his CV “on or around 16 November 2011” (by which he must have meant 2013) and that it was, as he put it, “discussed that suitable offer will be made” by Tata “within their IT Procurement Department”.[7]He went on to say, in the next paragraph of his (undated) witness statement, that “On or around 3rd December 2013”, he was asked by Mr Kamble to send his CV again and that, after apparently discussing the matter with Mr Satya Ryali, described by Mr Sengar as “Head – JR Relationship” (and by Mrs Mallick as a Principal Consultant), Tata (through Mr Kamble) made him an offer to join Tata’s “Vendor Management Office as Events and New Facility Manager”. Mr Sengar added that he was asked to join Tata with effect from 2 January 2014, and that he was told that “in the meantime” Tata’s “Human Resources Team” would “finalise the paperwork” (by which he meant his employment contract).[8]Mr Sengar explained that he had met Mr Ryali at one of his meetings with Tata (presumably with Mr Kamble) “on or during December 2013” and that “they together” (by which Mr Sengar must have meant both Mr Kamble and Mr Ryali) “explained the role to me”. Mr Sengar stated that he accepted the job offer and that he thereafter waited for Tata’s Human Resources people to make contact with him. Having heard nothing, Mr Sengar explained that he met Mr Ryali in his restaurant on 28 December 2013 and that he told him that he had not had any contact with the Human Resources Department despite the fact that he was meant to be starting work only a few days later. Mr Sengar stated that Mr Ryali advised him that he would contact the Human Resources Department and asked that Mr Sengar should wait until the first week of January for this to happen.[9]Mr Sengar was subsequently contacted by Mr Kamble, he explained, and it was arranged that he would meet with both Mr Kamble and Miss Somrupa Nath from the Human Resources Department on 8 January 2014. During that meeting, Mr Sengar explained, he was told that the job was going to be moved from the Vendor Management Office to Tata’s Administration section but that the “job profile” would remain the same. He was told that within two weeks “all the approvals from their departments” would be sought and that further contact would be made with him and that he would be sent an employment contract.[10]Mr Sengar then explained that, despite his chasing, further delay ensued, and that he was “told all the time that it was happening and due to their [Tata’s] internal audits and approvals it was just taking longer”. It was not until 3 April 2014 that, he stated, Somrupa Nath contacted him to say that she now had “all the relevant approvals” and that he (Mr Sengar) would have to speak to somebody called Suresh (as I understand it, based on an “HR Interview Assessment” document dated 16 April 2014, Mr Suresh Kumar) and a Mr Gandhi (as I understand it, based on the same document, Mr Vishal Gandhi) “to finalise things”. Mr Sengar stated that he queried why this was necessary given that he had already been informed “during December and January that the selection was done and it was just a mere formality of getting the contract and finalising the salary”. He stated that he also raised a concern about the level of salary “as it was below the market rates”.[11]This was followed, Mr Sengar explained, by his speaking by telephone to Mr Kumar and Mr Gandhi on about 8 April 2014. According to Mr Sengar, during this interview he was asked questions about things which were already apparent from the CV which he had submitted. He was also asked what his expectations concerning the remuneration package were, saying that he explained that he was concerned that the salary on offer was too low and that he had been expecting a salary “in the region of 45K-50K”. He stated that he was shocked, as he put it, to hear from Mr Kumar and Mr Gandhi that “they presently have people working within their department and handling the same roles for less than 30K and that they have been sourced internally from their Indian branch”. He stated that they “went on to explain to me that people are working on Tier 2 ICT Short term and Long term”, and that he was told that “people working within Tier 2 ICT turn out to be cheaper for the company as they don’t even have to pay any National Insurance as their visa is valid for less than 12 months and thus the company was not liable to pay any national insurance and also reclaim most of it back as expenses to the company”. Mr Sengar went on to say that he was then asked questions about health and safety matters, about which he was not qualified. In his view, it “was clear that they purposely offered low package and wanted me to reject the offer and when that didn’t happen they have tried to convince me” to do that “due to not having relevant experience in Health and Safety”. Mr Sengar added that he was “convinced that the role was going to be filled by Migrant worker for low wages and without proper experience”.[12]Tata does not accept this. Its position, as explained by Mrs Mallick in her witness statement, is that since last October Mr Sengar has, as she put it, “frequently and persistently contacted a number” of Tata’s employees “in search of employment” with Tata. Tata’s version of events is that in October 2013 Mr Sengar approached Mr Kamble, whilst he was eating at Mr Sengar’s restaurant, and asked him whether there were any suitable job vacancies for him, only for Mr Kamble to say that there were no such vacancies at that time. Subsequently, Mrs Mallick stated, in November 2013, Mr Sengar sent a copy of his CV to Mr Kamble and then made contact with Mr Kamble on numerous occasions by telephone, each time requesting an interview. Mr Kamble apparently stopped taking such calls and that led Mr Sengar to start calling Mr Kamble using different landline telephone numbers so that Mr Kamble would not know who was calling.[13]The next month, on 3 December 2013 to be precise, according to Mrs Mallick, Mr Sengar attended Tata’s Leamington Spa office in order to process corporate dining receipts for his restaurant. Before he left the office, Mr Sengar asked to see Mr Kamble and the two men spoke briefly. Importantly, and in contrast to Mr Sengar’s version of events, Tata’s evidence, in the shape of Mrs Mallick’s witness statement, is that no job offer or interview offer was made to Mr Sengar at that time. Similarly, Tata does not agree with what Mr Sengar says about Mr Ryali’s visit to his restaurant on 28 December 2013: although it agrees that Mr Sengar spoke to Mr Ryali about a job offer which he said that he had received from Tata and that Mr Sengar told Mr Ryali that he was due to start work on 2 January 2014 but that he was still waiting for an offer letter or contract of employment, as I understand Tata’s position, it is that Mr Ryali said nothing about Mr Sengar starting work with Tata, although I am not clear whether it is accepted that Mr Ryali told Mr Sengar that he would contact the Human Resources Department.[14]Subsequently, Tata accepts that on 8 January 2014 Mr Sengar attended its Leamington Spa offices. It says, however, that this was not because Mr Kamble had contacted Mr Sengar and asked that he attend to meet both Mr Kamble and Miss Nath from the Human Resources Department, as Mr Sengar suggests. On the contrary, Tata’s position is that Mr Sengar attended “uninvited and requested a job interview, notwithstanding his earlier assertion that he had received an offer of employment”, and that Mr Kamble and Miss Nath met Mr Sengar “out of courtesy to understand the type of role he was looking for and his experience to date”. Tata says that both Mr Kamble and Miss Nath made it clear to Mr Sengar that he was not being interviewed for a position as there was no position available, despite the fact that (as Mr Sengar pointed out in his oral submissions) a subsequent “Technical Interview Assessment” document dated 17 April 2014 and an “HR Interview Assessment” document dated 16 April 2014, both exhibited to Mrs Mallick’s witness statement, referred to what would seem to be the 8 January 2014 meeting (or possibly meetings since two are mentioned, each lasting 30 minutes) both as a “Meeting” and as an “Interview” (strictly a first interview with Mr Kamble and a second interview with Miss Nath). Be that as it may, Tata’s position is that Mr Sengar was told that Tata would bear him in mind if any suitable positions should arise in the future, and not that he was told that within two weeks “all the approvals from their departments” would be sought and that further contact would be made with him and that he would be sent an employment contract.[15]Mrs Mallick’s evidence is that Mr Sengar continued to contact Tata’s employees “persistently for a job”, with calls and emails in February and March 2014 to Miss Nath, Mr Kamble, Mr Riyali and also a Mr Anand Pandit. Mr Sengar also attended Tata’s Leamington Spa office unannounced. At no time did Tata offer Mr Sengar a job; its position was instead that Mr Sengar would be contacted if any suitable roles became available. Mrs Mallick says that it was as a result of what she described as Mr Sengar’s “consistent pestering” of Tata’s employees that Mr Kamble and Mr Pandit met with Mr Sengar on 24 March 2014. According to Mrs Mallick, Mr Sengar was “advised” in that meeting to stop contacting Tata’s employees about job opportunities and that, if any opportunities became available in the future, Tata’s Human Resources Department would make contact with him. Mr Sengar disputes that he was told this and relies in this context on an email which he sent to Mr Kamble four days after the meeting, on 28 March 2014. In that email, Mr Sengar thanked Mr Kamble for “taking time to meet me on 24th March 2014” and then said this:
“I am just writing to keep you updated that I have had no contact either from Suresh or Somrupa. Can you please look into the matter and update me accordingly”
. Tata says that this shows that, despite what he was told at the 24 March 2014 meeting, still Mr Sengar continued to bother Tata about an offer of employment which had not been made. Mr Sengar, on the other hand, submits that this email is consistent with his having not been told to stop bothering Tata about the job offer which he maintains he had been made.[16]As for Miss Nath contacting Mr Sengar on 3 April 2014, Tata’s position is that Mr Sengar was not told she now had “all the relevant approvals” and that Mr Sengar would have to speak to Mr Kumar and Mr Gandhi “to finalise things”. Nor does Tata accept that Mr Sengar queried why this was necessary given that he had already been informed “during December and January that the selection was done and it was just a mere formality of getting the contract and finalising the salary”. Tata points to the emails which were exchanged between Miss Nath and Mr Sengar that day, in which Miss Nath gave Mr Sengar details of the administrative position which had become available, as well as the applicable salary and associated benefits. Reliance is placed, in particular, on the fact that in his emails in response to Miss Nath’s emails Mr Sengar did not raise either of the points referred to above. The most that he did, in his first email, was to say that he would appreciate it “if you can respond at your earliest so that we can settle this as I am very keen to join after waiting for over 4 months”, which seems to be as consistent with Mr Sengar having been waiting for a suitable job vacancy to come about as it is consistent with his having already received a job offer.[17]It was after these initial exchanges, as well as further emails on 8 and 14 April 2014, that Mr Sengar was interviewed by Mr Kumar and Mr Gandhi on 16 and 17 April 2014, Mr Gandhi from the Human Resources Department on 16 April 2014 and Mr Kumar in what was described as a “Technical interview” on 17 April 2014. I am not entirely clear whether these were face-to-face interviews or whether, as Mr Sengar suggests, they were conducted over the telephone. However, it seems pretty clear that not only was there more than one interview (rather than the single interview to which Mr Sengar refers) but that the interviews did not take place (as Mr Sengar suggests) on 8 April 2014, since there is no indication in the documents that Mr Sengar spoke to Mr Kumar or Mr Gandhi on the telephone. Indeed, in an email sent by Mr Sengar on 14 April 2014 he refers to his not having heard from Mr Kumar, something which he would not have said if he had already been interviewed by him (and Mr Gandhi).[18]What is nonetheless common ground is that Mr Sengar was not offered the job for which he was interviewed. As it was put in the “Technical Interview Assessment” dated 17 April 2014, under “Recommendations”:
“Overall Result: Not to be progressed for an offer of employment, on account of the applicants lack of skills, knowledge and experience evident in the require JD areas expected.”
The document went on, over the page in a section headed “Comment”:
“Due to lack of required key skills, knowledge and experience, Prashant cannot be considered for this role. Key Observations Prashant has no experience in managing infrastructure specific to an IT company and IT projects. He lacks key domain and subject matter knowledge hence, will not be able to manage audit, health and safety management on a singular basis and without significant additional support that this role cannot provide the luxury of providing. … .”
The document went on, over the page in a section headed “Comment”:

Key Observations

[19]Tata does not accept that in the interview Mr Sengar was told any of the other things which he alleges.[20]Mr Sengar’s rejection as a result of his interview prompted an email from him to Mr Riyali (copied to Mr Pandit) on 26 April 2014. In that email Mr Sengar informed Tata “that it is my intention to file a claim against TCS for Discrimination, Promissory Estoppel and Breach of Tier 2 ICT visa”. Mr Sengar went on to refer to an attached “CPR Part 18 request”, which he asked Tata to deal with “in timely manner”.[21]There followed a series of other emails from Mr Sengar to Tata. In his oral submissions, Mr Sengar explained that these were emails which he sent because, as he saw it, “things had been done wrongly and had to be put right”. He further explained that, as he felt that his emails were not being properly addressed, he decided that he had to “escalate” matters and address his concerns with more senior people within the Tata organisation. He denied that in any of his communications he was intending to do anything other than trying to get what he regarded as legitimate concerns addressed. In short, he denied any wrongdoing and, as I say, it is not for me, at this interim stage, to determine whether what was done was wrong or not. I do, however, need to set out the various exchanges in order that the context of the present applications can be seen.[22]The relevant emails started on 1 May 2014, a few days after Mr Sengar’s 26 April 2014 email indicating his intention to bring discrimination proceedings and enclosing his CPR Part 18 Request, and the day after it would appear that Mr Sengar issued an application in Birmingham County Court seeking an order that Tata comply with the CPR Part 18 Request. Mr Sengar emailed Tata’s Chief Executive Officer and Managing Director, Mr Natarajan Chandrasekaran, in the following terms (I should say that, in quoting from the various documents, I have not sought to correct typing and other grammatical errors):
“Firstly, I am sorry to write to you directly about the potential claim that I intend to bring against TCS in UK. Like many Indians, I have always followed the success of Tata and like millions consider Mr. Ratan Tata as my mentor and have lot of respect for him. It is due to this fact that, though I have far better legal remedy available here in UK, I thought will write to you independently. I have purposely and knowing that it sort of weakens my claim, I have only filed Part 18 application in the court today. I have no doubt some of your team members having a sight of this application may feel ‘he doesn’t know what he is doing’. But it’s my way of giving them a last opportunity to get their acts together. Now you must be wondering, why am I using a language of this sort! I suggest that you take some of your valuable time and read the application I have filed along with my witness statement in court today. Hoping that you have had a chance to read that, I will like to further add that I am totally surprised like you with behavior of some of your peers. Knowing how important and valuable your time is, I will like to nail down the issue for you. Presently TCS Employs many people on Tier 2 ICT. One of the conditions of this visa is that the job must be for skilled migrants and not for the position which can be filled by local and EU residents. It is very clear that presently TCS employs many of them under these visas and they are performing jobs which can be filled using local resident. As you will be aware that this is a goldmine case for many Lawyer firms and especially knowing that a previous case like this was settled for $30 million in US. It is not my intention to drag heels and put TCS through a mess but I need to do what is right for me and in ethical sense. It is completely unfair that 7 months of my time was wasted and I was subjected to Discrimination and Promissory Estoppel. I must point out that I have had an opportunity of meeting two of your best team members (Satya Riyali and Ananad Pandit) but guess this is a bigger problem for them to handle and thus this email was sent to you directly. I just hope common sense will prevail and we can find an amicable solution for this issue.”
[23]In her witness statement, when dealing with this email, Mrs Mallick made the point that Mr Sengar did not explain how it was (as he put it) “very clear” that Tata is in breach of the Immigration Rules. She went on in this regard to refer to Mr Himanshu Kumar’s witness statement and to what is stated in that witness statement about Tata’s relevant practices. Reliance was placed, in particular, on the fact that Tata is regularly audited by the UK Visas & Immigration Department (UKV&I) of the UK Home Office, and the further fact that Tata maintained its A-rated (full sponsorship) status following its last audit in August 2012. In short, Tata strongly disputes Mr Sengar’s allegations.[24]Returning to the chronology, Mr Sengar’s 1 May 2014 email was followed by a further email from him two days later, on 3 May 2014, again sent to Mr Chandrasekaran. This email stated as follows:
“I write further to my open email dated 1 may 2014. In that email I set out my grievances and you should be aware that I am more than willing to pursue this matter to tribunal or civil court in the absence of swift resolution. I have taken some legal advice and the only reason that I have not contracted my case to a law firm yet, is because they want to capitalise on this issue by involving media and will be asking for huge ransom for the victimisation, loss of time (7 months) and promissory estoppel from TCS. I have been informed by the law firm that they have spoken to some national newspaper and news channel and want me to give them interview and evidence that I hold on Wednesday, 7th May 2014. In their opinion due to the fact that immigration is very hot topic presently in UK and also due to the fact that UKBA IT contract was awarded to TCS, it will be good news for them. It may sound like I am laying foundation down for a good bargain, but surely that's not my idea!!! I seriously don’t want to go down that route as I believe things can still be put right. On a purely commercial basis, and for swift resolution, I would be prepared to reach an agreement on the basis that 2 of my conditions are accepted. The two conditions being:- 1) I would be offered the position of VMO Manager (a position which was offered to me in the first place and was asked to join from 2nd January 2014) at annual CTC of GBP 55K plus perks on permanent basis with TCS UK. I would be assured that I would not be victimised for bringing claim against the company. 2) Within reasonable time TCS will move all the present support staff performing roles within Administration, HR, Legal and all other areas where local residents can be easily employed. It will form a committee who would ensure that in future we don't breach the Tier 2 ICT regulations. I am sure you will agree that this is a very reasonable and practical solution to resolve the present situation. Provided we can reach an agreement on this basis I will agree to drop the application and that will be the end of the matter. I still believe that some people that I will have the opportunity of working (including Mr. Satya Ryali and Mr. Anand Pandit), will give me a great platform to learn and have wonderful experience. I hope you can see that in spite of the application brought in the court (I had no control over it!); I am genuinely not trying to exploit the situation for financial gains or to blackmail anyone. I just want to be given the opportunity which I was promised in the first place and hope that I can prove to you that I was worth it! It is very important and I STRESS that I hear back soon as comes Tuesday it will be a completely different ball game all together once the law firm is instructed and I end up giving interview to the Newspaper. I hope to hear in very near future.”
I hope to hear in very near future.”[25]Although the email was marked “Without Prejudice”, Mr Sengar made it clear that he did not object to Tata relying on it before me, something which Mr Craig, on behalf of Tata, (rightly, in my view) submitted was appropriate given the unambiguous impropriety exception to the general rule that without prejudice communications are inadmissible in evidence (see, for example,Savings & Investment Bank Ltd v Fincken [2004] 1 WLR 667 at page 684C-G per Rix LJ – it seems to me that, on an interim application such as the present, it is sufficient that there is at least an arguable allegation of impropriety, and not that the allegation has been made out). Tata’s position is that in this email Mr Sengar was trying to blackmail Tata, and that his protestation in the email itself that he was not seeking to exploit “the situation for financial gain or toblackmail anyone” is simply not borne out by its terms. Mr Craig’s submission, essentially, was that Mr Sengar was alleging, incorrectly and without any proper foundation, that Tata employs individuals on “Tier 2 ICT visas” unlawfully, and was threatening to disclose information to third parties unless various demands were met and a “huge ransom” paid. Mr Sengar disputed that that was what he was doing. His position was that he was merely trying “to put things right”.[26]Three days later, on 6 May 2014, Mr Sengar then sent a further email to Mr Chandrasekaran which he forwarded by email to Mr Cyrus Pallonji Mistry, Tata’s Non-Executive Chairman and Executive Chairman of the main board of the Tata Group in India. This followed an email dated 4 May 2014 from Mr Graham Buckley, Tata’s Head of Employment Law and Employee Relations – UK & Ireland, in which he explained that Tata had undertaken an internal review of the email sent by Mr Sengar to Mr Chandrasekaran on 1 May 2014 “and other correspondence that you have made with various TCS officials both verbally and via email also”. Mr Buckley then said this:
“We have concluded that the allegations you make are false. I also understand that the claims you are asserting have no legal basis and can not be supported by facts. Please understand that you will not be offered a role within TCS and any legal claims that you pursue will be strongly opposed and defended with costs pursued as appropriate. As you yourself have noted in your previous mails, TCS, like all TATA companies have its own reputation and attach great importance to it. We will not hesitate to go to any extent in defending our reputation. Your correspondence suggests that you may be planning to engage in activities aimed at maligning or attacking our reputation. Please be advised that we will also pursue action for defamation in appropriate circumstances. Please direct any and all future correspondence in this matter to my attention only.”
Please direct any and all future correspondence in this matter to my attention only.”[27]Ignoring, on any view, Mr Buckley’s last request, Mr Sengar’s reaction was, as I say, on 6 May 2014, to send a further email to Mr Chandrasekaran, in which he stated as follows:
“Further to my exchange of correspondence with Head of Employment Law and Employee's Relationship, I am writing to you with some concerns and surprises that I have faced. Following raising my grievances that I faced, the least I expect was to be treated fairly and to my surprise I received an email from Mr. Buckley who alleged that my allegations were ‘False and Baseless’. In so called review I would have expected that someone will speak to me and take my side of story, they just said we have carried our internal review and found that my allegations are ‘False and Baseless’ and will not stand in court. Is this TCS is all about? Is this how complaints for getting unfairly dealt with, discrimination, etc complaints are dealt with. Whilst I expect no mercy or some lovely exchange of correspondence from your legal department, I would have thought that people will at least be reasonable and try and get to the bottom of the problem. But guess, using hard hand tactics works better for TCS. I am very disappointed and whilst I tried to be reasonable by writing directly to you and hoping to get some reasonable people to deal with the matter, I just get a complete biased response that ‘we have carried out our internal review and found your allegations false and baseless’. All that is left to do now is to sign off this email and say that whilst I no doubt will seek the legal remedy available to me, I just hope and pray that in future TCS will resolve grievances in more reasonable and independent way.”
[28]Again as previously stated, Mr Sengar then forwarded this email to Mr Mistry the same day, under cover of the following message:
“My apology for writing directly to you and whilst I appreciate Mr. Chandrasekaran is or may be handling this matter, I still thought will involve you in the loop. I will request that you spend some of your valuable time to read through the email sent to Mr. Chandrasekaran on the even date.”
[29]This was followed, after a period of silence, by another email from Mr Sengar, again to Mr Chandrasekaran, on 18 May 2014. Again, it is necessary to set out this email in its full terms, except that I shall not include the details of the six employees of Tata which (as will appear) Mr Sengar set out in list form:
“I hope this email finds you in good spirit. As you maybe aware that I have started the legal process for Discrimination and Breach of Contract. Unlike some of your peers I have no intentions of wasting your and my time and neither give bluffs like some of these (your peers) people do! In my last email to you I very clearly outlined that I was very serious about seeking all the possible legal remedy for the pain, frustration, psychological stress, etc, that was caused to me by your some colleagues. I am sure you are not interested in my saga and have instructed a solicitor to deal with the case. So without wasting time let me bring some very important facts here:- I have managed to get a full list of employees presently working in UK and America and have selected few for your reference. ... As you are aware that Tier 2 ICT can only be applied for Skilled workers over NQF Level 6 and the SOC provides full details of the job that can be undertaken. This is just a sample and I have a list of 1023 employees just in UK who have been employed in Breach of Tier 2 ICT. I could have easily spoken to one one of your HR Manager but don’t want to be giving out any wrong signal. It is completely your choice how you want to deal with this information but must stress that some people will be very keen to get this of me. Does this mean that I am trying to play dirty!!! I have no intentions of doing this and will write to you with a remedy once I hear directly from you. I will not talk to anyone like Milind Lakkad or others. Will wait to hear from you in due course.”
Will wait to hear from you in due course.”[30]The employee details gave employee numbers, names, UK locations and roles, as well as what Mr Sengar said was their “NQF [National Qualifications Framework] Level”. His position was that each of the employees was NQF level 3, although Tata’s position (explained in Mr Kumar's witness statement) is that Mr Sengar was (and is) completely wrong about this. Tata also makes the point, correctly as it seems to me based on the documents which I have seen, that the NQF information is not information which Mr Sengar appears to have held, namely the information concerning Tata employees in the UK and the US contained on Tata’s computer database known as ‘Ultimatix’. It is nevertheless that information to which Mr Sengar was referring in his 6 May 2014 email to Mr Chandrasekaran, and it is that same information to which Mr Sengar referred in the witness statement which he made in support of his CPR Part 18 application in Birmingham County Court. In that witness statement, which was dated 23 May 2014, Mr Sengar said this at paragraphs 7 and 8:
“7. The claimant has in its possession a number of documents which clearly suggests that the Defendant has been breaching Tier 2 ICT regulations and presently been deputed to UK to perform roles which are clearly not within the NQF criteria. I have attached a few of these examples … 8. I will have the others on the file along with me on the date of hearing in case if the Honourable judge will like to have a look. I have list of more than 500 migrant worker presently deputed to UK working on roles which are under NQF Level 4 and NQF Level 3.”
[31]Mr Sengar’s position in relation to his 18 May 2014 email is that its “very content … clearly shows that [he] had no intentions of misusing the information [he] had in [his] possession” (see paragraph 2.10 of his witness statement dated 6 June 2014). He explained to me, in his oral submissions, that he was simply meaning to provide Mr Chandrasekaran with the information which would enable him to carry out “his investigation”. He explained that his reference to ‘playing dirty’ was him merely “saying that there is an issue – please address it”. He admitted, as he put it, however, that “at the back of my mind I also know that I have a discrimination claim coming up and I will have to prove that”. He added that the reference to “some people” being “very keen to get this of me” was a reference to, as he put it, “the lawyers”, by which I understood him to mean his own lawyers. His essential point was that, if he had been intending to misuse the information, he would have done so already, by the time that he sent his email, and that he would not have sent an email which instead set out such information. That, as will appear, was Mr Sengar’s position generally in relation to Tata’s application: that he did not intend misusing the confidential information which he had acquired, and so Tata was not in need of the relief which was sought.

Tata’s position

[32]Tata was very anxious that Mr Sengar had seemingly managed to obtain access to confidential information on its ‘Ultimatix’ system. As Mrs Mallick explains in her witness statement, the information on that system concerning every member of staff in the UK and the US is not information which is in the public domain. It is information which can only be accessed by Tata personnel using their unique staff number and a password. This is made clear by the first page of the relevant website, where it is clearly stated that “Entry to this site is restricted to employees and affiliates of Tata Consultancy Services Limited”. Indeed, as Mr Sengar made clear in the witness statement which he made for the present proceedings, he has obtained the information from somebody who works for Tata, albeit that he has not identified that person. There was also evidence, again from Mrs Mallick, that the information would be extremely valuable to a competitor or a headhunter seeking to poach Tata’s staff, or to obtain access to details of Tata’s clients and the scale of the work carried out by Tata personnel for those clients since in the case of each of the employees information is given concerning “Project Details” and that information includes (as can be seen from the pages which I have looked at) identification of the client.[33]In view of Tata’s concerns, on 29 May 2014 its solicitors, Mishcon de Reya, wrote to Mr Sengar, seeking voluntary undertakings from him concerning the confidential information in his possession and urging that he take independent legal advice. In response, however, Mr Sengar took the position that Tata’s position was “baseless” and refused to engage, hence the present applications which were the subject of an application notice issued on 2 June 2014.[34]The first part of Tata’s application was for an order requiring the delivery up of all property belonging to Tata, including any document containing Proprietary Information and/or Confidential Information (each of these being defined terms in the draft Order put before me but essentially comprising, and anyway including within the scope of the definitions, the information in Mr Sengar’s possession obtained from Tata’s ‘Ultimatix’ system): see paragraphs 4 and 7 of the draft Order. As to this, Mr Craig’s position was that it was clear that, Mr Sengar having somehow managed to obtain information from the ‘Ultimatix’ system, information which was confidential, and to which Mr Sengar (as a non-employee of Tata) had no entitlement, the Court should order delivery up so as to ensure the return of that property to its rightful owner, Tata.[35]Mr Craig pointed out that the Court has the power to make an order providing for the delivery up of the relevant documents since they come within the definition of “goods” in Section 4(1) of the Torts (Interference with Goods) Act 1977 (“goods” includes “chattels personal other than things in action and money”) and so CPR 25.1(1)(e). Section 4 of the 1977 Act provides as follows:
“Interlocutory relief where goods are detained (1) In this section ‘proceedings’ means proceedings for wrongful interference. (2) On the application of any person in accordance with rules of court, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for the delivery up of any goods which are or may become the subject matter of subsequent proceedings in the court, or as to which any question may arise in proceedings. (3) Delivery shall be, as the order may provide, to the claimant or to a person appointed by the court for the purpose, and shall be on such terms and conditions as may be specified in the order.”
[36]Mr Craig relied, in the alternative, on CPR 25.1(c)(i), which enables the Court to order the detention, custody or preservation of evidence. His submission was that the Court cannot, as he put it, be confident that Mr Sengar would not destroy evidence relating to his unlawful activities, and so, he submitted, the position in respect of the preservation of evidence relating to his wrongdoing is best addressed by an order that the material is delivered up to Mishcon de Reya, Tata’s solicitors. Mr Craig further submitted that, as part of its inherent jurisdiction, the Court has the power to order a defendant (here, Mr Sengar) to deliver up or destroy on oath any material in his possession or control which contains confidential information belonging to the claimant (here, Tata), even where the physical documents belong to the defendant. In this regard, Mr Craig relied not only on Industrial Furnaces Ltd v Reaves [1970] RPC 605, but also on Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41.[37]Mr Craig went on to submit, by reference to the well-known principles set out in American Cyanamid Co. v Ethicon Ltd [1975] AC 396 and the approach advocated by Chadwick J (as he then was) in Nottingham Building Society v Eurodynamics Systems [1993] FSR 468 (as approved by the Court of Appeal in Zockoll Group Ltd v Mercury Communications Ltd[1998] FSR 354, the case actually cited by Mr Craig), that this is an appropriate case in which to grant Tata the mandatory injunction relief sought. In the Nottingham Building Society case, Chadwick J said this at page 474:
“In my view the principles to be applied are these. First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’ in the sense described by Hoffmann J. Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo. Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish his right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted. But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted.”
[38]Mr Craig submitted that “at the very least”, as he put it, there is a serious issue to be tried as to whether Tata is entitled to the return of its property, and that the appropriate course, having regard to the balance of convenience, was to order that the property be delivered up ahead of trial. In particular, Mr Craig submitted that damages would not be an adequate remedy for Tata were Tata to establish a right to a permanent injunction at trial since it would be very difficult to quantify what Tata’s losses would be in the event that the property were provided to competitors or headhunters. Mr Craig also made the point that, even if there were a quantifiable loss, there was a real risk that Mr Sengar would, in any event, not be in a position where he could afford to pay Tata damages at a level which would compensate Tata, bearing in mind that Mr Sengar is a small businessman without access, presumably, to substantial funds. In contrast, Mr Craig submitted, were Mr Sengar to establish at trial that he was entitled to do that which Tata sought to enjoin him from doing, he would be adequately compensated under Tata’s undertaking in damages (as drafted into the Order which Tata was seeking) in view of the very considerable wealth which Tata enjoys. Further, Mr Craig submitted, in considering the balance of convenience (which, according to Lord Diplock in the American Cyanamid case at page 408F, falls to be considered if “there is doubt as to the adequacy of the respective remedies in damages available to either party or to both”), it should be borne in mind that, as he put it, “once the information is out of the bag, it cannot be put back”.[39]As to the factors set out by Chadwick J in the Nottingham Building Society case, Mr Craig submitted that the course which “is likely to involve the least risk of injustice if it turns out to be ‘wrong’” was one which required Mr Sengar to deliver up Tata’s property. Mr Craig made the point in this connection that, if at trial it were to be concluded that Mr Sengar was entitled to the property which he has managed to obtain from Tata, then it could be returned to him. That is why, Mr Craig explained, the draft Order contemplated that the property should be delivered up to Mishcon de Reya rather than to Tata itself. It is also why the draft Order also provided that Mr Sengar should transfer all soft copies of the information on to a clean USB drive which would be held by Mishcon de Reya pending trial or further order. In contrast, Mr Craig submitted, were Mr Sengar to be permitted to hold on to the property, the risk of injustice to Tata would be very considerable, in view of the concerns that competitors or headhunters could access it. On that basis, Mr Craig submitted that, whilst the order sought required Mr Sengar to take some positive step at an interlocutory stage, nevertheless the “greater risk of injustice” lay in not making the order and not in “preserving the status quo”. Mr Craig added, by reference to Chadwick J’s third factor, that the Court should, in the present case, “feel a high degree of assurance” that Tata “will be able to establish [its] right at a trial”, bearing in mind that the property concerned is clearly, as Mr Craig would say, property which belongs to Tata and property to which Mr Sengar has no entitlement. Lastly and in any event, Mr Craig submitted that it is appropriate to grant a mandatory injunction at an interlocutory stage in this case because “the risk of injustice if this injunction is refused sufficiently outweighs the risk of injustice if it is granted”.[40]As to the second aspect of the relief sought, the application for an order prohibiting Mr Sengar from communicating or disclosing to any person Tata’s proprietary and confidential information as well as from inducing or procuring any third party to provide him with Tata’s proprietary and confidential information, Mr Craig’s submissions on the American Cyanamid principles mirrored those set out above. I do not, therefore, repeat them. What I do, however, need to do is set out Mr Craig’s submissions in relation to Tata’s breach of confidence case. In this context, Mr Craig placed heavy reliance on the Coco case, in which Megarry J (as he then was) identified “three elements” which he said “are normally required if, apart from contract, a case of breach of confidence is to succeed” (see page 47[12-13]). He identified those three elements as follows (page 47[13-18]):
“First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
[41]Megarry J then went on to examine each of the elements in turn, as follows (pages 47[19]-48[36]):
“First, the information must be of a confidential nature. As Lord Greene said in the Saltman case at page 215 ‘something which is public property and public knowledge’ cannot per se provide any foundation for proceedings for breach of confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge. But this must not be taken too far. Something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. … The second requirement is that the information must have been communicated in circumstances importing an obligation of confidence. However secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential. From the authorities cited to me, I have not been able to derive any very precise idea of what test is to be applied in determining whether the circumstances import an obligation of confidence. In the Argyll case at page 330, Ungoed-Thomas, J. concluded his discussion of the circumstances in which the publication of marital communications should be restrained as being confidential by saying “If this was a well-developed jurisdiction doubtless there would be guides and tests to aid in exercising it”
. In the absence of such guides or tests he then in effect concluded that part of the communications there in question would on any reasonable test emerge as confidential. It may be that that hard-worked creature, the reasonable man, may be pressed into service once more; for I do not see why he should not labour in equity as well as at law. It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence. In particular, where information of commercial or industrial value is given on a business-like basis and with some avowed common object in mind, such as a joint venture or the manufacture of articles by one party for the other, I would regard the recipient as carrying a heavy burden if he seeks to repel a contention that he was bound by an obligation of confidence: see the Saltman case at page 216. On that footing, for reasons that will appear, I do not think I need explore this head further. I merely add that I doubt whether equity would intervene unless the circumstances are of sufficient gravity; equity ought not to be invoked merely to protect trivial tittle-tattle, however confidential. Thirdly, there must be an unauthorised use of the information to the detriment of the person communicating it. Some of the statements of principle in the cases omit any mention of detriment; others include it. At first sight, it seems that detriment ought to be present if equity is to be induced to intervene; but I can conceive of cases where a plaintiff might have substantial motives for seeking the aid of equity and yet suffer nothing which could fairly be called detriment to him, as when the confidential information shows him in a favourable light but gravely injures some relation or friend of his whom he wishes to protect. The point does not arise for decision in this case, for detriment to the plaintiff plainly exists. I need therefore say no more than that although for the purposes of this case I have stated the proposition in the stricter form, I wish to keep open the possibility of the true proposition being that in the wider form.”[42]Mr Craig submitted that each of these three elements exists in the present case, and that, accordingly, Mr Sengar is to be regarded as owing Tata an equitable obligation of confidence in respect of the information that he has obtained. As to the first of those elements, his submission was that the information obtained by Mr Sengar, in the form of the information contained in the ‘Ultimatix’ documents in his possession, has “the necessary quality of confidence about it” having regard, in particular, to its subject matter, its form, its sensitivity and its inaccessibility. Mr Craig submitted that, as a result, Tata had a reasonable expectation of confidentiality in respect of such information. Lord Goff explained the position in Attorney General v Guardian Newspapers Ltd (No.2)[1990] 1 AC 109 at page 281A-F, as follows:
“I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word ‘notice’ advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection. I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties - often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions ‘confider’ and ‘confidant’ are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers - where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”
[43]In this connection, Mr Craig also drew my attention to the fact that, in Roger Bullivant Ltd v Ellis [1987] ICR 464, the Court of Appeal accepted that “a card index system listing consulting engineers, local authorities and architects who have or can refer business” to the plaintiff firm of consulting engineers (see page 468F-G) should be regarded as having“the necessary quality of confidence about it”, Nourse LJ having this to say at pages 474H-475B:
“The value of the card index to the defendants was that it contained a ready and finite compilation of the names and addresses of those who had brought or might bring business to the plaintiffs and who might bring business to them. Most of the cards carried the name or names of particular individuals to be contacted. While I recognise that it would have been possible for the first defendant to contact some, perhaps many, of the people concerned without using the card index, I am far from convinced that he would have been able to contact anywhere near all of those whom he did contact between February and April 1985. Having made deliberate and unlawful use of the plaintiffs' property, he cannot complain if he finds that the eye of the law is unable to distinguish between those whom, had he so chosen, he could have contacted lawfully and those whom he could not ...”
. Mr Craig submitted that, in the present case, the information in Mr Sengar’s possession extended beyond third party professional contacts since it included information (sensitive information) about Tata’s clients. As such, Mr Craig suggested that the ‘Ulimatix’ information was of the type to which Staughton LJ referred in Lansing Linde Ltd v Kerr [1991] ICR 428 at page 437E-G:
“It appears to me that the problem is one of definition: what are trade secrets, and how do they differ (if at all) from confidential information? Mr. Poulton suggested that a trade secret is information which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret. I would add first, that it must be information used in a trade or business, and secondly that the owner must limit the dissemination of it or at least not encourage or permit widespread publication. That is my preferred view of the meaning of trade secret in this context. It can thus include not only secret formulae for the manufacture of products but also, in an appropriate case, the names of customers and the goods which they buy. But some may say that not all such information is a trade secret in ordinary parlance. If that view be adopted, the class of information which can justify a restriction is wider, and extends to some confidential information which would not ordinarily be called a trade secret.”
In short, Mr Craig submitted that information can be confidential even if it is not a trade secret, and so that the ‘Ultimatix’ information in the present case has “the necessary quality of confidence about it” for the purposes of the present application.[44]Mr Craig submitted, further, that Mr Sengar “clearly recognised”, as he put it, that the information which he had obtained from the ‘Ultimatix’ system was confidential since, in his email to Mr Chandrasekaran on 18 May 2014, he referred to his having “managed to get a full list of employees presently working in UK and America” and then went on to “stress thatsome people will be very keen to get this of me”. Mr Craig submitted that, in such circumstances, Mr Sengar’s observation, in paragraph 5.1 of his witness statement dated 6 June 2014, that the ‘Ultimatix’ documents are not marked ‘confidential’ or as a ‘trade secret’ is beside the point. In any event, he submitted, the documents do not need to be marked in this way in order to have “the necessary quality of confidence about” them.[45]Mr Craig similarly submitted that certain other points made by Mr Sengar, starting in paragraph 5.5 of his witness statement, were lacking in validity. These other points appear to have been influenced by the following passage in the judgment of Sir Robert Megarry, V-C in Thomas Marshall (Exports) Ltd v Guinle [1979] 1 Ch 227 at page 248E-G:
“If one turns from the authorities and looks at the matter as a question of principle, I think (and I say this very tentatively, because the principle has not been argued out) that four elements may be discerned which may be of some assistance in identifying confidential information or trade secrets which the court will protect. I speak of such information or secrets only in an industrial or trade setting. First, I think that the information must be information the release of which the owner believes would be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e., that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner's belief under the two previous heads must be reasonable. Fourth, I think that the information must be judged in the light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information or trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection.”
Mr Craig submitted, by reference to this guidance, that the ‘Ulimatix’ information clearly falls within the category of information which, if released, would be injurious to Tata or advantageous to Tata’s competitors or headhunters; that Tata plainly believed that such information is confidential or secret since Tata restricted access to it to Tata employees with passwords; that Tata’s belief in the case of each of these two matters was reasonable; and that there is nothing to suggest that the position is different when judged against the usage and practices of the industry or trade in which Tata is engaged. Applying Sir Robert Megarry V-C’s approach, therefore, Mr Craig submitted, the ‘Ultimatix’ information is properly to be regarded as confidential information.[46]As to the second of the elements identified by Megarry J in the Coco case, Mr Craig’s submission was that the information on the ‘Ultimatix’ system was plainly “imparted in circumstances importing an obligation of confidence”, in view of Mrs Mallick’s evidence that the information on that system is not information which is in the public domain, and is only accessible by Tata personnel using their unique staff number and a password. Mr Craig submitted that it was clear that Mr Sengar must have obtained the information by improper or surreptitious means, either by being given a username and password to enable him to access Tata’s Ultimatix database, or from a Tata employee who would self-evidently have been under contractual duties, and anyway an equitable duty of confidence, not to pass such material on to a third party. In this regard, Mr Craig relied on the following passage in the judgment of Dillon LJ in the Attorney General v Guardian Newspapers Ltd (No. 2)case at page 201:
“One of those constraints is that anyone who receives information from a person bound by an obligation of secrecy or confidence, and who knows that the information has been passed to him by his informant in breach of that obligation, becomes automatically prima facie himself bound by a like obligation of secrecy or confidence which will prevent his disseminating the information any further, or making any use of it without the consent of the person to whom the obligation of secrecy or confidence was owed by the informant. That applies whether the recipient of the information be a new employer to whom an employee chooses to divulge the trade secrets of his former employer, or a newspaper to whom an ex-officer of the Security Service chooses to divulge, whether gratuitously or for a fee, secret information about the activities of M.I.5.”
[47]Mr Craig also relied on Lancashire Fires Ltd v SA. Lyons & Co Ltd[1996] FSR 629, in which Sir Thomas Bingham, MR said this at page 676:
“In Seager v. Copydex Ltd [1967] 1 W.L.R. 923 Lord Denning M.R. at p. 931 considered the nature of a claim for breach of confidence and stated ‘The law on this subject does not depend on any implied contract. It depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it.’ That principle would be defeated if a third party to whom the secret information had wrongfully been disclosed could as a matter of course make use of it.”
[48]Mr Craig highlighted the fact that Mr Sengar had redacted from the ‘Ultimatix’ pages exhibited to his witness statement in the current proceedings, as well as apparently in his witness statement served in relation to the Birmingham County Court proceedings, the details which would show which employee had accessed the information. Indeed, as will appear, Mr Sengar was strongly opposed to having to disclose the identity of that employee. Mr Craig, accordingly, submitted that Mr Sengar was, as he put it, “clearly alive to the fact that the information has been obtained improperly”. In any event, Mr Craig submitted, on the facts known to Mr Sengar, a reasonable person would know that the information is confidential, and that is sufficient for Tata’s purposes: see per Gummow J in Smith Kline & French Laboratories (Australia) Ltd v Department of Community Services[1990] FSR 617 at page 649.[49]As to the third element, Mr Craig submitted that Mr Sengar had already used the information in an attempt to blackmail Tata, and that there was a real concern that he will continue to use the information in such a fashion, alternatively that he will wrongfully disclose it to a competitor or headhunter. He went on to refer to what Lord Goff in the Attorney General v Guardian Newspapers Ltd (No. 2)case at pages 282C-283B described as the “three limiting principles” to the “general principle” to which he had earlier referred at page 281A-C, as follows:
“To this broad general principle, there are three limiting principles to which I wish to refer. The first limiting principle (which is rather an expression of the scope of the duty) is highly relevant to this appeal. It is that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it. I shall revert to this limiting principle at a later stage. The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia. There is no need for me to develop this point. The third limiting principle is of far greater importance. It is that, although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure. Embraced within this limiting principle is, of course, the so called defence of iniquity. In origin, this principle was narrowly stated, on the basis that a man cannot be made ‘the confidant of a crime or a fraud’: see Gartside v. Outram (1857) 26 L.J.Ch. 113, 114, per Sir William Page Wood V.-C. But it is now clear that the principle extends to matters of which disclosure is required in the public interest: see Beloff v. Pressdram Ltd. [1973] 1 All E.R. 241 , 260, per Ungoed-Thomas J., and Lion Laboratories Ltd. v. Evans [1985] Q.B. 526 , 550, per Griffiths L.J. It does not however follow that the public interest will in such cases require disclosure to the media, or to the public by the media. There are cases in which a more limited disclosure is all that is required: see Francome v. Mirror Group Newspapers Ltd. [1984] 1 W.L.R. 892 . A classic example of a case where limited disclosure is required is a case of alleged iniquity in the Security Service. Here there are a number of avenues for proper complaint; these are set out in the judgment of Sir John Donaldson M.R.: see, ante, pp. 187B - 188H. Like my noble and learned friend, Lord Griffiths, I find it very difficult to envisage a case of this kind in which it will be in the public interest for allegations of such iniquity to be published in the media. In any event, a mere allegation of iniquity is not of itself sufficient to justify disclosure in the public interest. Such an allegation will only do so if, following such investigations as are reasonably open to the recipient, and having regard to all the circumstances of the case, the allegation in question can reasonably be regarded as being a credible allegation from an apparently reliable source.”
[50]Mr Craig submitted that none of these limiting principles operates in the present case. Specifically, as to the first of the limiting principles, this is not a case in which the information concerned has entered the public domain; as to the second limiting principle, the information is neither useless nor trivial; and nor, Mr Craig submitted, is the present case one in which the public interest in preserving and protecting the confidentiality is outweighed by “some other countervailing public interest which favours disclosure”.[51]As to that last point, Mr Craig referred to what Mr Sengar stated in paragraphs, 4.1, 5.3 and 5.4 of his witness statement dated 6 June 2014, as follows:
“4.1The Respondent believes and accepts that the disclosure made by an employee of the Applicant was under the Public Interest Act 1998 – Wider Disclosure and this is under ‘Protected Disclosure’. From the very nature of the disclosure it is clear that it shall be treated under the ‘Protected Disclosure’. ... 5.3 Once I received the information, I was shocked to see the level the Applicant was breaching the Tier 2 ICT rules. Breaching the Tier 2 ICT Rules is an offence and against the Public Interest. It is a plain fraud. The Respondent genuinely believes that the Respondent [sic] is involved in malpractice of employing migrant workers under Tier 2 ICT for performing roles which are not up to the skill level of NQF Level 6. It is thus Respondent’s case that these disclosure were made under ‘Public Interest Act 1998’ and the purpose for which the information is used cannot be termed as ‘misuse’ or for ‘blackmail’. 5.4 Disclosure made under ‘Public Interest Act 1998’ is clearly above any confidential or Trade Secret Act. The Respondent believes and confirms that the person who provided the information did that in good faith, had no personal gains and have been employed by the Applicant for past many years. I am not aware if the same information has been disclosed to any other party, organisation or individual.”
[52]Mr Craig submitted that, whilst the Court was in no position to resolve once and for all on an application such as the present whether Mr Sengar is entitled to make this type of assertion, nevertheless the assertion which has been made is very weak and certainly not such as to mean that the Court should be dissuaded from making the orders sought. In short, Mr Craig’s position was that, in carrying out the necessary balancing exercise in the present case, the public interest in maintaining confidentiality in the information contained in the ‘Ultimatix’ material outweighs any countervailing public interest favouring disclosure. As Lord Goff explained in the Attorney General v Guardian Newspapers Ltd (No. 2)case at page 283A-B, “a mere allegation ... is not of itself sufficient to justify disclosure in the public interest”. Mr Craig went on to explain why, in his submission, such public interest claim as Mr Sengar was making is misconceived. Mr Craig’s essential point was that Mr Sengar’s interest in the confidential information was not a public interest but self-interest, namely the wish to use the information in support of his discrimination claim against Tata and, Mr Craig also submitted, the wish to blackmail Tata.[53]I say no more about the latter point other than to repeat that it is not for me, at this stage, to make final findings on any disputed issue, still less an allegation of blackmail. In relation to the former point, Mr Craig referred to several paragraphs in Mr Sengar’s witness statement dated 6 June 2014, namely paragraphs 2.5, 2.27, 5.6 and 7.6, in which Mr Sengar made the point that “he has no intentions of misusing the information, save for bringing the proceedings” (see, for example, paragraph 5.6). This was a point which was prominent in Mr Sengar’s oral submissions also. Mr Craig submitted that, even if this was taken at face value, it still did not mean that Mr Sengar was entitled to retain the documents or use the confidential information contained in them. Mr Craig referred in this context to Brandeaux Advisers (UK) Ltd v Chadwick [2010] EWHC 3241 (QB), [2011] IRLR 224, a case in which the defendant argued that she should not be required to deliver up confidential information in her possession obtained from her employer which was relevant to legal or disciplinary proceedings brought or threatened against her by the claimants. Jack J addressed this submission in paragraph [23] as follows:
“... I should not get drawn into any wide statements of principle which are unnecessary to my decision. I am doubtful if the possibility of litigation with an employer could ever justify an employee in transferring or copying specific confidential documents for his own retention, which might be relevant to such a dispute. If such a dispute arises, in the ordinary course the employee must rely on the court's disclosure processes to provide the relevant documents: even if the employee is distrustful whether the employer will willingly meet its disclosure obligations, he must rely on the court to ensure that the employer does. But on any view there can be no justification for the exercise which Ms Chadwick carried out here. Nor, in the absence of a specific issue, was Ms Chadwick entitled to transfer documents to protect her own position in case a regulatory dispute might arise. If she wished to use confidential information to make a report to the regulator, a situation which has not arisen, she would not be prevented from using confidential information for that purpose: but whether that would entitle her to copy documents onto her private computer would be doubtful.”
Despite Jack J’s caution about making “wide statements of principle”, Mr Craig’s submission was that what he went on to say was clearly right.[54]More specifically and by reference to Sections 43A to 43H of the Employment Rights Act 1996 (as amended by the Enterprise and Regulatory Reform Act 2013), Mr Craig submitted that, on the assumption that (contrary, of course, to Tata’s case), this is a case which is concerned with a “protected disclosure … made by a worker” within the meaning of Section 43A (in other words, a “qualifying disclosure” under Section 43B, namely a “disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show … (a) that a criminal offence has been committed, is being committed or is likely to be committed” or “(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”), nevertheless: Section 43C is inapplicable because in the present case “the worker” has not made the disclosure to his employer (here, Tata – not Mr Sengar) under Sub-section (a); Section 43D is inapplicable because no “qualifying disclosure” has been “made in the course of obtaining legal advice”; Section 43E is inapplicable because that involves a “qualifying disclosure” being made to a Minister of the Crown; Section 43F is inapplicable because that involves a “qualifying disclosure” being made to a “person prescribed by an order made by the Secretary of State for the purposes of this section”; Section 43G is inapplicable because there is no evidence before the Court, in particular, as to whether “the worker” (whom Mr Sengar has refused to identify) “reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F” (a prescribed person) or as to whether “in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer” (Sub-sections (2)(a) and (b)), or as to whether, in all the circumstances of the case, it was reasonable for the (unidentified) worker to have made the disclosure to Mr Sengar, bearing in mind the factors set out in Sub-section (3); and, lastly, that Section 43H is inapplicable because, even if “the relevant failure is of an exceptionally serious nature” (which Tata does not accept), there is again no evidence that, in all the circumstances of the case, it was reasonable for the (unidentified) worker to have made the disclosure to Mr Sengar (as required by Sub-sections (1)(e) and (2)).[55]Mr Craig’s final observation concerned Article 10 of the ECHR and a party’s rights to freedom of expression. Quite properly, given that Mr Sengar was unrepresented before me, Mr Craig drew my attention to the need for the Court to act compatibly with that Convention right. He referred also to Section 12 of the Human Rights Act 1998, which further provides that no relief is to be granted restraining publication before trial unless the Court is satisfied that the applicant is highly likely to establish that publication should not be allowed, and the Court must pay particular regard to the importance of the right to freedom of expression and, where the proceedings relate to material which a respondent claims, or which appears to the court, to be journalistic, literary or artistic material, to the extent to which the material has or is about to become available to the public, or it is, or would be, in the public interest for the material to be published, and any relevant privacy code. Mr Craig pointed out, however, that, as he put it, Article 10 is not meant to operate as a blackmailer’s charter. He highlighted the fact that Article 10(2) expressly provides that the right to freedom of expression may be subject to “such formalities as areprescribed by law and are necessary in a democratic society … for preventing the disclosure of information received in confidence ...”, and so, even if sections 12(3) and (4) of the Human Rights Act 1998 were engaged, this is a case in which relief should be granted. In any event, in an email on 29 May 2014, sent in response to Tata’s, Mr Sengar,stated that “it isnot my intention to supply the evidence to any media house or else I would have done that a while ago!”. In such circumstances, Mr Craig submitted that, even if in theory Mr Sengar’s Article 10 rights were engaged, in practice and on the facts they would not be interfered with by the making of the orders sought.

Mr Sengar’s position

[56]It is inevitable that I have had to set out Mr Craig’s submissions in considerable detail. I say this for two reasons: first, because Mr Craig’s submissions covered a large amount of ground, both factual and more particularly legal; and secondly, because Mr Craig understandably, and I repeat very properly, sought in his submissions to deal not only with points which Mr Sengar had raised or appeared to raise, but also with certain matters which Mr Sengar had not expressly raised. To some considerable extent, therefore, I have already identified the submissions which Mr Sengar made before me.[57]As far as those submissions are concerned, these were set out in his witness statement dated 6 June 2014 as well as in a very helpful skeleton argument which he had prepared. Mr Sengar, who presented his case with admirable clarity and who stated that he did not wish to have the hearing adjourned in order to allow him to obtain legal representation, also had a full opportunity to address me orally, something which he did for approximately 2½ hours, at the end of which Mr Sengar confirmed that he felt that he had made all the points which he wanted to make. Nevertheless, just as it is inevitable that I should have had to set out Mr Craig’s submissions in the detail which I have, it is equally inevitable that, in setting out Mr Sengar’s submissions, I do so somewhat more shortly. This is mainly because, as was entirely to be expected, Mr Sengar essentially made no submissions on the applicable legal principles, and instead focused his submissions on certain key (mainly factual) points, after first explaining in considerable detail his version of events.[58]I have myself already set out that version of events in detail earlier in this judgment. I do not do so again at this juncture, save to repeat that Mr Sengar’s essential position is that, in his dealings with Tata (specifically in his various emails to Tata management), he was merely trying to “put right” things which “had been done wrongly”. He did not accept that, in any of his communications, he was intending to do anything more sinister than this. That, then, was the first of the key points which Mr Sengar was at pains to make before me. The second matter which Mr Sengar emphasised was that he had not to date misused the information, in the sense that he had not provided it to third parties, and, moreover, he did not intend doing so, whatever Tata might say his various emails suggested. As he put it, if he had intended to do as Tata suggests, he would have done so already. Thirdly, Mr Sengar highlighted what he considered to be certain oddities arising from the documents put forward by Tata (for example, the fact that the “HR Interview Assessment” document dated 16 April 2014 refers to an interview the day after that date). Mr Sengar recognised, very fairly, however, that the hearing was not the occasion (and nor, obviously, is this judgment) when such oddities, and indeed his various complaints against Tata, are to be resolved.[59]Fourthly, Mr Sengar explained, both orally and in his skeleton argument (at paragraphs 4 and 6), that he was concerned that, if he were required to return the ‘Ultimatix’ documentation in his possession, then, as the ‘Ultimatix’ system is apparently regularly updated, “there is a serious concern that the data will be altered on the system and even if in future” he were to manage “to get court orders for the disclosure it will be completely changed” (paragraph 6). On that basis, Mr Sengar submitted (in paragraph 6) that allowing him to retain the documentation and refusing Tata the relief sought “is likely to involve the least risk of injustice if it turns out to be ‘a mistake’”, by which he meant if it turned out to be a mistake to require him to deliver up the documentation. Orally, Mr Sengar added that, as he understood it, he had three months in which to bring his discrimination claim against Tata in the Employment Tribunal, a claim which he informed me had arisen on 17 April 2014, and that that period ran out on 16 July 2014. Accordingly, he submitted, it was important that he should not be prevented from referring to the information which he had obtained and which, in the terms of the order sought by Tata (at least subject to revision), he would be prevented from using for such purposes. He suggested in this respect that his case was to be contrasted with the position in the Brandeaux case because in that case what the defendant wanted to do was to retain the documents in case the claimants were to bring proceedings against her, whereas in the present case he had already made his discrimination claim, and so there was no doubt that there were proceedings already on foot and that the material would be deployed as evidence in those proceedings. Mr Sengar went on to make the point that, his efforts to obtain documentation in the context of his Birmingham County Court (CPR 18) proceedings not having met with success, it would only be if he were allowed to retain the documents in his possession that he would be in a position to make good his case. He added that, if it were the case that the documentation were obtained through disclosure in his discrimination proceedings, then, there was no point, as he put it, in requiring him to deliver up the documents at this stage. This consideration, combined with the fact that he had not misused the documentation since it had come into his possession, meant, Mr Sengar submitted, that the right course, applying the balance of convenience approach, was to refuse Tata the relief sought and permit him instead to keep hold of the documents.[60]Mr Sengar next went on to make the submission that, as he was not himself an employee of Tata, he was not subject to any duty of confidentiality. Anyway, Mr Sengar suggested (without expressly confirming that the relevant employee is based in India), the employee from whom he had obtained the documents was not subject to the type of employment contract (with its restrictions on the use of confidential information) which Tata had produced in evidence and to which Mr Craig had taken me, because that was a contract which UK employees of Tata would enter into, and there was no equivalent employment contract before me into which employees in India would enter with Tata (a point also made in paragraph 16 of Mr Sengar’s skeleton argument). Mr Sengar then made the point that, even looking at the (UK) employment contract which Tata had produced, it was to be noted that it contains at Clause 13.3 the following provision after setting out the various confidentiality provisions relied on by Tata:
“The restrictions above shall not apply to information which you or another person may be ordered to disclose by a court of competent jurisdiction or which you disclose pursuant to and in accordance with the Public Interest Disclosure Act 1998, provided you have complied with the Company’s policy (if any) from time to time regarding such disclosures, or as may be required by law.”
Mr Sengar submitted that the present case was one in which Sections 43G and 43H of the 1996 Act are applicable, arguing (in an echo of his submissions in paragraphs 9 to 12 of his skeleton argument) that “All I have to think is is there a serious chance that there is a fraudulent activity happening – if there is, then I have got to take that on board”. His submission was that the documents were evidence of malpractice which was very much in the wider public interest, bearing in mind the effect both in relation to taxes which are not being (he suggested) paid because of the practices which he was alleging and in relation to jobs which were not being made available to UK residents (like him) again because of such (alleged) practices.[61]Mr Sengar was insistent, both in his oral submissions and in paragraph 13 of his skeleton argument, that he could not disclose the identity of the employee (or, within the meaning of the 1996 Act, “the worker”) from whom he had received the ‘Ultimatix’ documentation because he needed to respect that employee’s confidentiality and he was concerned that disclosing the employee’s identity would cause the employee “a problem” with Tata. On that basis, Mr Sengar submitted that, even if other orders were to be made, nevertheless he should not additionally be required (as Tata’s draft order sought) to reveal the identity of the employee concerned.[62]Other submissions made by Mr Sengar included the point, made orally and in paragraph 17 of his skeleton argument, that he is not himself a competitor of Tata and nor is he an employee of any Tata competitor; on the contrary, he runs a restaurant. Accordingly, he submitted, he was not going to use the information in order to aid any competition with Tata by him. Furthermore, he submitted, information as to Tata’s clients could be obtained freely on the internet, and so the information in the ‘Ultimatix’ documentation was not especially useful to any competitor of Tata.[63]Mr Sengar also submitted, essentially making the same point as he made in paragraph 5.9 of his witness statement dated 6 June 2014, that employees could not easily move away from Tata were they to be the subject of poaching attempts by third parties as there would need to be what he described as ‘cooling off periods’, and anyway Tata would have remedies available to it to prevent poaching if that were to be attempted.[64]For all these reasons, Mr Sengar’s position was that Tata should not be afforded any of the relief sought, and, in any event, as I have indicated, that he should not be required to reveal the identity of the employee from whom he had obtained the ‘Ultimatix’ documents.

Decision

[65]Having set out the parties’ respective submissions in detail, I turn now to give my reasons for making the orders which I did. I can do this relatively briefly as essentially those reasons reflect the submissions which were made by Mr Craig in support of Tata’s various applications. However, as will appear, the orders which I made did not in every respect match the relief originally sought, most notably because I declined to make an order requiring Mr Sengar to identify the person from whom he had obtained the ‘Ultimatix’ documentation.

Delivery up

[66]I start with Tata’s application for an order requiring the delivery up of all property belonging to Tata, including the information in Mr Sengar’s possession obtained from the ‘Ultimatix’ system. It was (and is) very clear to me that the orders sought should be made under Section 4(1) of the Torts (Interference with Goods) Act 1977 and CPR 25.1(1)(e). The ‘Ultimatix’ documentation plainly falls within the ambit of Section 4(4) (“goods which are or may become the subject matter of subsequent proceedings in the court, or as to which any question may arise in proceedings”), and it is entirely appropriate that delivery up should be ordered to Mishcon de Reya for that firm to hold the material until trial or further order. I consider also that this is a case in which it is anyway appropriate to make an order under CPR 25.1(c)(i), the provision which enables the Court to order the detention, custody or preservation of evidence, in circumstances where I consider that there is a risk that Mr Sengar might destroy evidence relating to the activities which Tata alleges were unlawful. I have, therefore, proceeded on the basis that both the 1977 Act/CPR 25.1(1)(e) and CPR 25.1(c)(i) are applicable, and the orders which I made in paragraphs 4 (delivery up of hard copy documents) and 7(a), (c) and (d) (delivery up of a USB device containing soft copy information transferred by Mr Sengar on to that device pursuant to the order) were made on that dual basis. However, in view of my later conclusions on confidentiality, I am also satisfied that the orders in those paragraphs are appropriate to be made under the inherent jurisdiction of the Court also. Therefore, it does not matter even if the physical documents were to turn out to belong to Mr Sengar rather than Tata (not that there was any suggestion by Mr Sengar that that was the case). I agree with Mr Craig that the Industrial Furnaces case supports such an approach. (I return, later on, to the other aspect of paragraph 7 of the order, paragraph 7(b), namely the deletion of all soft copy information other than that which is transferred to the USB device pursuant to paragraph 7(a), since this is a matter which wholly depends on the information having “the necessary quality of confidence about it”, and so is more conveniently addressed in the context of the second aspect of the relief sought).[67]I was (and am) quite satisfied that, applying the approach set out in both the American Cyanamid case and the Nottingham Building Society case, this is an appropriate case in which to grant Tata the mandatory injunction relief sought. My starting point is that it is very clear to me that there is, in the present case, a serious issue to be tried as to whether Tata is entitled to the return of its property in the sense that Tata has a real prospect of succeeding in its claim for a permanent injunction.[68]The next question is whether, if Tata were to succeed at trial in establishing its right to a permanent injunction, Tata would be adequately compensated by an award of damages for the loss it would have suffered as a result of Mr Sengar continuing to have in his possession the ‘Ultimatix’ documentation between now (or, more accurately, the date of the hearing before me, 6 June 2014) and trial. I am sure that the answer to this question is that Tata would not be adequately compensated in that eventuality because it seems to me to be obvious that it would be very difficult to quantify what Tata’s losses would be in the event that the property were to find its way into the hands of Tata’s competitors or headhunters interested in Tata’s employees. I cannot, and should not, readily discount the evidence given by Mrs Mallick in this respect, and I do not do so: there is a clear and justifiable concern, notwithstanding Mr Sengar’s insistence before the Court that he will not misuse the material in his possession, that that material will, indeed, be misused in the manner described by Mrs Mallick. It is no answer for Mr Sengar to point out that he is not himself a competitor of Tata, and that he is not an employee of any Tata competitor. The point is that there is a risk that the documentation will find its way into the hands of parties who are Tata’s competitors. Nor am I remotely persuaded by Mr Sengar’s submission that information as to Tata’s clients could be obtained freely on the internet, since it is one thing for general information of that sort to be accessible but quite another for detailed information of the type contained on Tata’s ‘Ultimatix’ system to be available. Similarly, I found unpersuasive Mr Sengar’s suggestion, made in paragraph 5.9 of his witness statement dated 6 June 2014, that employees could not easily move away from Tata were they to be the subject of poaching attempts by third parties. The fact that Tata may (or may not) have remedies available to it to prevent poaching happening seems to me to be somewhat beside the point: if Mr Sengar is not entitled to have the confidential information which he has, then Tata should not have to take advantage of other remedies to lessen the impact of the information becoming available to third parties. I also must bear in mind, in this context, that, even assuming that Tata’s loss could be quantified, the indications are that Mr Sengar, a small businessman who apparently was not in a position to instruct lawyers to act in the hearing before me, would not be able to meet any damages award which might be made in Tata’s favour.[69]I then ask myself whether, on the contrary hypothesis that Mr Sengar were to succeed at trial in establishing an entitlement to use the ‘Ultimatix’ documentation, he would be adequately compensated under Tata’s undertaking in damages (as included in both the draft order which was before me and in the order which I actually made) for any loss he might sustain between the date of the hearing and trial. It is self-evident that he would be: Tata is a very substantial company. In any event, in circumstances where it is likely, as I understand it, that Mr Sengar will receive documents relating to his discrimination claim through the applicable process of disclosure in his discrimination claim proceedings, I struggle to see what loss Mr Sengar would suffer by being required to deliver up the ‘Ultimatix’ documentation at this stage – even assuming that Mr Sengar were entitled to retain the documents (or use the confidential information contained in them) for the purposes which he has identified, which he is not, in view of Jack J’s observations in the Brandeaux case at paragraph [23], observations which I am clear apply just as much to the present case as they did in the case which Jack J was considering.[70]I bear in mind, in this context, that Mr Sengar’s concern before me was, as outlined previously, that he should have available to him, for the purposes of his discrimination claim, documentation which (at least as he sees it) supports his claim. It is not for me to say what specific documentation he will receive through disclosure. It may be that it will include the ‘Ultimatix’ documents which were as at the date of the hearing before me in his possession. If so, then, as a result of my order, that actual documentation will be held by Mishcon de Reya pending trial in the present proceedings, and so Mr Sengar’s concern “that the data will be altered on the system” seems to me to be allayed. It may, alternatively, be that the disclosure will include other ‘Ultimatix’ documentation or it may be that it will not include any ‘Ultimatix’ documentation. These are matters for the discrimination proceedings. However, what must be right is that Mr Sengar will have disclosed to him whatever documents he is entitled to receive through disclosure, including, presumably, any documents which support his case, and, therefore, if they do support his case, as he suggests but which Tata disputes, ‘Ultimatix’ documentation of the sort which he had obtained or, perhaps, even the very same documents which he had obtained. On that basis, being required to deliver up the documents in his possession is unlikely to result in Mr Sengar suffering loss: if they are supportive of his case, he will receive them, or similar documents, through disclosure, and so will not suffer loss; if they are not supportive of his case, he will not be able to say that by being required to deliver the documents up, he has suffered through not having the documents available to him in aid of his discrimination claim.[71]In view of these conclusions concerning adequacy of damages and my assessment that there is a serious issue to be tried in the sense that Tata has a real prospect of succeeding in its claim for a permanent injunction, the right course is to grant the relief sought, and that is underlined by a broader consideration of the balance of convenience in the present case. I considered (and still consider) that there was considerable force in Mr Craig’s submission that, as he put it, “once the information is out of the bag, it cannot be put back”. In my view, having regard to the factors applicable to mandatory injunctions as identified in the Nottingham Building Society case, Mr Craig was also right when he submitted that the course which “is likely to involve the least risk of injustice if it turns out to be ‘wrong’” is one which required Mr Sengar to deliver up Tata’s property, in circumstances where, if at trial it were to be concluded that Mr Sengar was entitled to the property which he has managed to obtain from Tata, the property could be returned to him, bearing in mind that the order which I was being asked to make (and did, in the event, make) involved the delivery up of hard and soft copies not to Tata but to Tata’s solicitors, Mishcon de Reya, who are to hold them until trial or further order. This was a case, therefore, where it was appropriate not to preserve the (then) status quo, and so permit Mr Sengar to keep hold of the documents, with the attendant risk that they might come into the hands of competitors or headhunters, but to require Mr Sengar to deliver the documents up since to do otherwise would have entailed, in my judgment, the “greater risk of injustice”. I agree also with Mr Craig, without obviously meaning to suggest that Tata’s claim will necessarily succeed at trial, that it is nevertheless likely that it will do so, and so the third factor identified by Chadwick J in the Nottingham Building Society case is applicable. I was not persuaded, in all the circumstances, that I should, therefore, accede to Mr Sengar’s invitation to allow him to retain the documentation. As I have explained, that invitation had as its main driver Mr Sengar’s concern that he should have available to him documentation to assist his discrimination claim, which is a matter which I have already addressed.

Restraining orders

[72]I turn now to those parts of Tata’s applications which sought orders prohibiting Mr Sengar from communicating or disclosing to any person Tata’s proprietary and confidential information as well as from inducing or procuring any third party to provide him with Tata’s proprietary and confidential information: see paragraphs 3, 5 and 6 of the draft order (and, indeed, the order which I actually made). The issue here was whether Tata was able to satisfy me that its case on breach of confidence had real prospects of success and that it is appropriate that, in the circumstances, injunctive relief should be given to protect the confidentiality of Tata’s information. As will be apparent from the earlier section dealing with Mr Craig’s submissions, this was Mr Craig’s main focus on this aspect of the applications. In this section this is similarly my focus. I do not, in such circumstances, rehearse the American Cyanamid principles again since, essentially, the same considerations apply to this aspect of the relief sought as are applicable to that aspect of the relief sought which I have already addressed.[73]I was (and remain) wholly satisfied, certainly anyway for the purposes of having to consider whether to grant interim injunctive relief, that the present case is one in which the “three elements” identified by Megarry J in the Coco case as being “normally required if, apart from contract, a case of breach of confidence is to succeed” are applicable, and so that Mr Sengar should be viewed as owing Tata an equitable obligation of confidence in respect of the information that he has obtained.[74]In my judgment, the information contained in the ‘Ultimatix’ documents in Mr Sengar’s possession plainly has “the necessary quality of confidence”, bearing in mind that the ‘Ultimatix’ system is accessible only to Tata employees using a password, and bearing in mind also the nature of the information contained in the documentation which sets out employee personal information as well as specific details of Tata’s clients.It is hardly surprising, in these circumstances, that the evidence adduced on Tata’s behalf should be that the information is confidential and that Tata had a reasonable expectation of confidentiality in respect of it. It is clear that it is information which falls within the category described by Lord Goff in Attorney General v Guardian Newspapers Ltd (No.2)at page 281A-F and by Sir Robert Megarry, V-C in the Thomas Marshall case at page 248E-G, and that it is akin to the card index system in the Roger Bullivant case and the information which was under consideration in the Lansing Linde case. I consider that Mr Craig was also right when he made the point that Mr Sengar himself recognised that the information was confidential, given how he described, in his 18 May 2014 email to Mr Chandrasekaran, having “managed” to get hold of the information before going on to say how “some people will be very keen to get this of me”. It is nothing to the point that the ‘Ultimatix’ documents are not marked ‘confidential’ or as a ‘trade secret’. Whether information is confidential does not depend on how it has been labelled; it is the substance which matters.[75]I also consider that the second element identified by Megarry J in the Coco case exists in the present case. I am in little doubt that, given Mrs Mallick’s evidence that the information on that system is not information which is in the public domain, and is only accessible by Tata personnel using their unique staff number and a password, the information on the ‘Ultimatix’ system is information which was “imparted in circumstances importing an obligation of confidence”. Mr Sengar effectively acknowledged that he obtained the information through a Tata employee, in circumstances where it is obvious that he would not otherwise have been able to access it, and in circumstances, too, where Mr Sengar is to be taken as having known that the employee was under an obligation of confidence in respect of the information. That is quite sufficient for Tata’s purposes on these applications since Dillon LJ made it clear in Attorney General v Guardian Newspapers Ltd (No. 2)at page 201 that “anyone who receives information from a person bound by an obligation of secrecy or confidence, and who knows that the information has been passed to him by his informant in breach of that obligation, becomes automatically prima facie himself bound by a like obligation of secrecy or confidence”, a principle confirmed by Sir Thomas Bingham, MR in the Lancashire Fires case at page 676. Furthermore, as Mr Craig submitted, it is also sufficient that a reasonable person would know that the information is confidential, and so it does not matter whether, in fact, Mr Sengar had such awareness or not: see per Gummow J in the Smith Kline case at page 649. I might add that I did not find very convincing Mr Sengar’s point that the employment contract before me was a UK contract and not one relating to employees based in India, since it seems to me that I am entitled to proceed on the basis that the position under Indian law is likely to be the same as under English law, in the absence of evidence to the contrary, and so that an employee based in India owes his or her employer duties of confidence as a matter of law, as is the case under English law, regardless of whether that duty is expressly set out in that employee’s employment contract.[76]That leaves Megarry J’s third element: the unauthorised use of the confidential information to the detriment of the party communicating it (here, Tata). I am satisfied that it is at least arguable that Mr Sengar has already used the information in an attempt to blackmail Tata, although I stress (again) that I am not to be taken as having decided that this is what Mr Sengar has actually done, as I am in no position to make such a determination at this stage and it is, in any event, not necessary that I do so. I am also satisfied that Tata is right to be concerned that Mr Sengar will wrongfully disclose the information to a competitor or headhunter. I say this, notwithstanding that Mr Sengar insisted before me that he was not intending to do this, and that, in his dealings with Tata, he was merely trying to “put right” things which “had been done wrongly”, because I simply cannot ignore the contents of Mr Sengar’s various emails. Those emails, the details of which I have previously set out, seem to me, on their face at least, to demonstrate (and anyway certainly it is very arguable that this is the case) that Mr Sengar’s intentions, at the time when he wrote the emails, were to make unlawful use of the ‘Ultimatix’ documents in his possession. I have in mind, in particular, Mr Sengar’s 3 May 2014 email to Mr Chandrasekaran, in which he referred to his having been informed “some national newspaper and news channel” had been spoken to and they “want me to give them interview and evidence”. I also have in mind Mr Sengar’s email on 18 May 2014, again to Mr Chandrasekaran, in which he referred to “some people” being “very keen to get this of me”. These references suggest that Mr Sengar had in mind doing rather more with the documents than use them in his discrimination claim against Tata. I consider that it would be a mistake, in such circumstances, simply to accept Mr Sengar’s assurance that he does not intend to misuse the documents, not least because that assurance was, of course, given in the face of the present applications by Tata.[77]I might add that I do not consider that any of the “three limiting principles” addressed by Lord Goff in the Attorney General v Guardian Newspapers Ltd (No. 2)case at pages 282C-283B is applicable in the present case. This is not a case in which the information concerned has entered the public domain. Nor can the information be described as either useless or trivial. Nor is this a case, in my judgment, in which there is “some other countervailing public interest which favours disclosure” which outweighs the public interest in preserving and protecting confidentiality. I doubt, in particular, that Mr Sengar can be right, in paragraphs, 4.1, 5.3 and 5.4 of his witness statement dated 6 June 2014 and in paragraphs 9 to 12 of his skeleton argument, to suggest that this is a case involving the application of Sections 43A to 43H of the Employment Rights Act 1996. Although it is, again, not for me finally to determine this question at this juncture, I tend to agree with Mr Craig that Mr Sengar’s case in this respect is, indeed, very weak. In short, I fail to see how these provisions of the 1996 Act can operate in the present case, given the lack of evidence before me: in relation to Section 43G, as to whether “the worker” (Mr Sengar’s source) held either of the beliefs required by Sub-sections (2)(a) and (b), or as to whether, in all the circumstances of the case, it was reasonable for that worker to have made the disclosure to Mr Sengar having regard to Sub-section (3); and, in relation to Section 43H, even assuming that “the relevant failure is of an exceptionally serious nature”, as to whether, in all the circumstances of the case, it was reasonable for the “worker” to have made the disclosure to Mr Sengar (see Sub-sections (1)(e) and (2)). In the circumstances, I also consider that there is considerable force in Mr Craig’s submission that the only interest in the confidential information is Mr Sengar’s self-interest, and not the public interest alleged by Mr Sengar based on the operation of the 1996 Act. In any event, even if I were persuaded that there might be a public interest of the type contended for by Mr Sengar, I am wholly satisfied that, in the present case, that public interest is outweighed by the public interest in maintaining confidentiality in the information contained in the ‘Ultimatix’ material.[78]I should, lastly, observe that I agree with Mr Craig’s submissions concerning Article 10 of the ECHR and Section 12 of the Human Rights Act 1998. I consider that, in any event, given Mr Sengar’s stance that he did not intend to “supply the evidence to any media house”, in practice, making the orders sought by Tata would not infringe Article 10.[79]For all these reasons, I considered (and still consider) that this was an appropriate case, having regard to American Cyanamid principles and the other principles addressed in the preceding paragraphs, for the making of orders prohibiting Mr Sengar from communicating or disclosing to any person Tata’s proprietary and confidential information as well as from inducing or procuring any third party to provide him with Tata’s proprietary and confidential information.

Other matters

[80]There are various other matters which it is appropriate that I should address. The first two points can be dealt with very shortly:(1) The first point concerns Mr Sengar’s discrimination proceedings, and a concern expressed by him that, if he was ordered (in the terms of the draft order at paragraph 5) that he “will not communicate or divulge to any person or make use of any Proprietary Information and/or Confidential Information”, then he would be unable to refer to information subsequently disclosed to him in advancing his claim within the discrimination proceedings.Mr Craig explained that that was not the intention of Tata in relation to paragraph 5. In the circumstances, I thought it appropriate to make the position clear, and clarificatory wording was, therefore, added into paragraph 5.(2) The second point is in relation to paragraph 7(b) of the draft order and the application by Tata for an order, under the Court’s inherent jurisdiction, that Mr Sengar should delete all soft copy information other than that transferred on to a USB drive in accordance with paragraph 7(a). I indicated previously that whether such an order should be made depends on the information having “the necessary quality of confidence about it” as required by the Coco case. In view of the conclusions which I have reached in relation to the information contained on the ‘Ultimatix’ system, it was clear that deletion was, indeed, appropriate.[81]As for the third point, Tata sought (in paragraph 8 of the draft order) an order requiring Mr Sengar to make and serve on Mishcon de Reya an affidavit:(i) verifying that the requirements of the order have been complied with (including the deletion of soft copies) and that no Confidential and/or Proprietary Information (as defined) has been retained by Mr Sengar;(ii) listing all and any documents containing such information which have not been returned and explaining what has become of them; and(iii) stating how Mr Sengar obtained such information “including but not limited to when, how and from whom it has been received, and stating to whom outside” of Tata the information has been disclosed.[82]Mr Sengar’s position was that, if any order were to be made at all (which he did not accept should be the case), then, he should not, in any event, be required to reveal the identity of the employee from whom he had obtained the ‘Ultimatix’ documents, insisting, as previously pointed out, that he could not disclose the identity of his source because he needed to respect the employee’s confidentiality. Mr Craig suggested, in his reply submissions, that Mr Sengar’s stance in this respect was somewhat ironic given that, at the same time, he was resisting the relief sought by Tata, relief which was itself founded on confidentiality considerations. I was nonetheless concerned by what Mr Sengar had to say, specifically that there might be “a problem” for the employee concerned if his or her identity were revealed. I suggested to Mr Craig that, in the circumstances, the better course was to take matters in stages, and require that Mr Sengar first explain when and how he received the information, but not from whom, on the basis, however, that, if necessary, Tata would have liberty to return to the Court to ask for an order requiring that the person’s identity should be revealed. This seemed to me to represent a proportionate approach and that it was also the safest course, bearing in mind that a third party was involved, even if that third party was, on the face of it, in breach of his or her obligations to Tata. Mr Craig took instructions and confirmed that Tata was content with my suggestion – as, of course, was Mr Sengar also. That was, therefore, the order which I made.

Conclusion

[83]In conclusion and by way of summary, it was for the reasons stated above that I granted Tata the relief which I did.

Cited in 2 later judgments