Although there may be a legitimate public interest in the disclosure of certain information in order to ascertain whether large firms are fulfilling their social and moral duties towards their staff, the High Court held in Linklaters LLP and anor v Mellish that it could not justify disclosing sensitive confidential information which others had a legitimate interest in keeping confidential.
Mr Mellish was the Director of Business Development and Marketing in the UK branch of Linklaters, known as LBS. Clause 10 of his contract included an express obligation of confidentiality preventing him from disclosing any “information regarding existing or prospective clients, partners and employees of LBS and/or the Firm, information concerning the marketing and promotional plans of the Firm and financial information relating to the performance of the Firm”. This applied both during his employment and after it had ceased.
In June 2018 he was given six months’ notice, but shortly after he received his final termination payment in January 2019 he emailed two senior directors saying that he intended to talk to the media about the culture in the company and the “ongoing struggle that Linklaters has with women in the workplace”. He referred to three specific examples that he intended to highlight.
The company applied to the High Court for an injunction preventing Mr Mellish from disclosing this confidential information.
When someone threatens to publish information, courts must take into consideration Article 10 of the European Convention on Human Rights, relating to freedom of expression. As an injunction restraining publication would interfere with that right, courts have to consider the weight to be given to obligations of confidence under the contract as well as the rights of third parties including ex-employees with complaints and grievances.
According to the decision in ABC v Telegraph Media Group Ltd, three issues have to be proven to establish a claim for an injunction in breach of confidence. These are:
- That the information has the necessary “quality of confidence”
- That the information has been given to or acquired by the defendant in circumstances “importing an obligation of confidence”
- That the defendant threatens or intends to misuse the information.
High Court decision
The High Court judge held that, in this case, there was clear evidence that Mr Mellish intended to make public certain matters that had come to his attention “in the course of his employment”. Although it was unclear whether he would carry through on his threat, the High Court considered that the risk that he would do so was real.
Acknowledging that it might be possible for Mr Mellish to talk publicly in general terms about the "culture" at Linklaters without breaching his duty of confidence, the judge held that it was not easy to see how he would avoid breaching confidentiality if he referred to the three specific instances mentioned in his email. Likewise, although there might be a legitimate public interest in determining whether large firms were fulfilling their social and moral duties towards their staff, that could not justify disclosing sensitive confidential information which others had a legitimate interest in keeping confidential.
As the information related to present or former employees or partners of Linklaters, and was of an inherently sensitive and confidential nature, it fell within the scope of clause 10. The judge therefore granted the injunction.
This is a surprising judgment. The balance to be struck in this case was whether there was a real and sufficient threat of disclosure of third-party information by the individual as against the company’s motivation to protect reputational damage. It is debateable whether the correct balance was struck. In other cases, there may well be a public interest in disclosing details of individual acts which create a compelling picture of persistent and habitual wrongdoing which is serious enough to warrant it.