Linklaters Granted Interim Injunction Preventing Former Director Naming Female Complainants
In the case of Linklaters LLP v Mellish, the High Court considered whether a former employee’s duty of confidentiality outweighs the public interest in the publication of information.
Facts
Frank Mellish was employed by Linklaters as their Director of Business Development and Marketing under a contract of employment which included an express confidentiality clause. He was also a member of its Executive Board. The confidentiality clause stated that Mr Mellish must not disclose confidential information acquired in the course of his employment, including details of clients, employees, partners, promotional materials and financial information, to a third party. His contract also provided that this obligation would continue for so long as the information remained confidential, including after his employment with Linklaters ended.
In June 2018 , Mr Mellish was given six months notice. Following this, he sent an email to senior members of Linklaters saying he intended to share his "impressions of the culture at Linklaters" and in particular what he called the "ongoing struggle Linklaters has with women in the workplace". Mr Mellish said he would be giving interviews in the first two weeks of February where he would use three specific examples, referred to by the Court as the 'Munich Incident', the 'NY Settlement' and the 'London Settlement', to demonstrate the firm's culture.
Linklaters applied for an interim injunction to restrain the disclosure of confidential information relating to the three incidents cited by Mr Mellish. This related mainly to the identity of complainants and the subjects of the complaints whose identity has thus far been kept confidential. Contrary to some recent reports, Linklaters did not seek to restrain Mr Mellish from publicising his general impressions of the culture of Linklaters.
The Law
To establish a claim for an injunction it must be proved that:
- the information has the necessary quality of confidence
- that the information has been acquired in circumstances importing an obligation of confidence
- that there is a risk or threat, if not restrained, that the information will be published
As we have previously reported on in the case of ABC v Telegraph Media Group Ltd, when considering a claim for an injunction a court must balance the right to privacy and the confidentiality of private contracts with the public interest of disclosure as well as the right of freedom of expression and of the press.
The High Court Decision
The Court granted the interim injunction to Linklaters on the basis that it was satisfied that should the matter proceed to full trial Linklaters had sufficient likelihood of succeeding.
The Court held that there was clear evidence that there was a real threat of publication of confidential information and that all the information which Linklaters sought to protect fell within the confidentiality clause in Mr Mellish's contract of employment.
It was also of particular relevance to the Court that none of the third parties, whose information would be disclosed, were involved in the proceedings. The Court commented that internal grievance procedures are confidential in nature and those interviewed as part of this process are entitled to expect that information given will be kept confidential. This presented strong policy reasons for upholding confidentiality so as to encourage complainants to come forward.
Best Practice
This case provides a useful summary of the law surrounding interim injunctions relating to breach of confidentiality and builds on the judgment given by the Court of Appeal in ABC v Telegraph Media Group Limited. It demonstrates how confidential information can be successfully protected without the need for an anonymised injunction (which, in the ABC case, served only to heighten press, and ultimately Parliamentary, scrutiny). However, employers should remember that Linklaters sought to protect a tightly defined list of information and were able to demonstrate that reputational harm was not the sole motivation for the application. Had reputational damage been all they sought to protect it is unlikely they would have succeeded in obtaining the interim injunction.
In addition, the confidentiality clause in Mr Mellish's employment contract appears to have been carefully drafted so as to specifically relate to the information he would have access to in the course of his employment. This highlights to employers the benefit of giving confidentiality clauses in employment contracts individual consideration.