The recent High Court decision in Sinclair Pharmaceuticals Ltd v Burrell offers valuable insights into situations in which confidential information arrives unexpectedly during contentious proceedings.
The facts: An anonymous delivery
Sinclair Pharmaceuticals ("Sinclair") is a medical aesthetics business. Jayne Burrell is a solicitor and was Sinclair's Chief Legal Officer. Although she remained an employee of Sinclair (she was on garden leave), she was pursuing an Employment Tribunal claim against Sinclair, alleging that her redundancy was a sham.
Shortly after her Employment Tribunal claim had been issued, her husband received an anonymous envelope containing confidential company documents relating to Sinclair, including legally privileged communications (the "Envelope Documents"). Crucially, neither Ms Burrell nor her legal team read the Envelope Documents (Ms Burrell even stopped her husband from describing their contents to her).
The employer's response: A costly misstep
Ms Burrell's legal team wrote to Sinclair to inform them they had received the Envelope Documents. Sinclair's reaction was swift but problematic. Sinclair's solicitors wrote to Ms Burrell's legal team to say (a) that the Envelope Documents were privileged; and (b) that they should not be sent to the Employment Tribunal. They also requested wide-ranging undertakings from Ms Burrell and her husband (including undertakings for the return of "all documentation belonging to Sinclair" and the deletion of all copies). They also threatened injunctive proceedings.
Ms Burrell did not provide the undertakings and, shortly afterwards, her solicitors sent the Envelope Documents to the Employment Tribunal in a sealed envelope. Sinclair (allegedly, according to Ms Burrell, in retaliation) then applied for and obtained an urgent without-notice injunction against Ms Burrell and her husband.
The without notice injunction included the following terms:
- A term prohibiting Ms Burrell and her husband from using or disclosing "Confidential Information", which was defined more broadly than just the Envelope Documents;
- A term prohibiting Ms Burrell and her husband from destroying "Relevant Documents", which was defined more broadly than the Envelope Documents; and
- A term requiring the delivery up of all property belonging to Sinclair (notwithstanding the fact that she still remained an employee).
Ms Burrell and her husband applied to set aside the without notice injunction, and shortly after that, Sinclair applied to continue aspects of the interim relief until trial or further order.
Mr Rory Dunlop KC, sitting as a Deputy High Court Judge, set aside the without notice injunction and stayed the proceedings in the High Court to enable the Employment Tribunal to determine what action should be taken in relation to the Envelope Documents. He said that there was no adequate justification for Sinclair having made its application for an injunction without even giving Ms Burrell and her husband informal notice.
The High Court directed that Ms Burrell and her solicitors should provide undertakings that they would not read the Envelope Documents, save to the extent that they were disclosed as part of the Employment Tribunal proceedings (and that an interim order would be made to that effect if such undertakings were not provided).
Employment tribunal was the appropriate forum
The main issue in this case was whether the Envelope Documents disclosed iniquity (that is, a deliberate attempt to conduct a sham redundancy process) that would defeat legal professional privilege. If so, privilege would likely be lost and there may be a defence to any claim for breach of confidence. If not, there would have been a breach of confidence from which Ms Burrell and her husband may have obtained an unfair advantage.
The parties were at odds over deciding where the legal professional privilege issue should be tried. In the High Court's opinion, the best forum for these issues was the Employment Tribunal. This was because:
- The Employment Tribunal was aware of, and must adjudicate on, the relevant facts which provided the context for the allegations that the Envelope Documents disclose a sham redundancy exercise.
- This was the type of advice employment lawyers give "day in, day out" and so the Employment Tribunal was better placed than the High Court to make the assessment.
- The Employment Tribunal is a costs-free jurisdiction. Sinclair had already incurred high costs in the High Court proceedings (the judge noted that Sinclair's costs exceeded £260,000 for just two weeks of litigation) and, if a speedy trial were to be ordered, its costs would be even higher. The prospect of such a high costs risk might pressure Ms Burrell into abandoning a potentially meritorious claim.
- The Employment Tribunal could adequately address the consequences if there had been an actionable breach of confidence, such as striking out any amendments to Ms Burrell's claim based on the Envelope Documents.
Key practical lessons
Don't rush to court without notice: The judge was critical of Sinclair's decision to seek an injunction without giving even informal notice to the defendants. It is therefore important for parties and their advisers to consider carefully whether it is appropriate to jump into litigation in confidential information cases. There will obviously be cases where such an approach is appropriate, but this requires careful and expert navigation to avoid judicial criticism.
The court also found no justification for secrecy, particularly given that Ms Burrell was a solicitor of good standing who had voluntarily disclosed the Envelope Documents' existence. This procedural failing alone was sufficient to set aside the order.
Consider the appropriate forum: The judge emphasised that the Employment Tribunal was better placed to determine whether the documents disclosed wrongdoing, noting it was a "costs-free jurisdiction created by Parliament so employees could bring claims without intimidating costs exposure". Rushing to the High Court risked "crushing" the defendants through costs pressure.
Cooperation over confrontation: The judge criticised both parties for failing to cooperate as the CPR expects. A compromise—such as both firms retaining copies whilst seeking Employment Tribunal directions—could have avoided expensive litigation entirely.
Handle anonymous documents carefully: Ms Burrell's approach was exemplary. By not reading the materials and instructing her solicitors similarly, she maintained her position whilst preserving the documents for proper judicial consideration. This restraint was specifically commended by the court.