March 20th, 2012 by Simon Devonshire QC

In the recent Caterpillar Logistics case (covered in an earlier post on this site), the Court of Appeal sounded a number of warnings against the deployment by an employer of over-aggressive litigation strategies in cases of suspected employee disloyalty.   In O’Farrell –v- O’Farrell [2012] EWHC 123 (QB) Tugendhat J (the Judge in Charge of the Queen’s Bench Non-Jury list) has deprecated “the number of spurious ex-parte applications that are made in the Queen’s Bench Division”.   He also expressed “real concern” at the frequency with which the requirements of CPR 25.3 and PD 25A para 4(3) were ignored.   These provisions require the applicant to explain why notice has not been given, and provide that except where secrecy is essential, the applicant should take steps to notify the respondent informally of the application.    According to the Judge (paras 66 and 67):-

In these days of mobile phones and emails it is almost always possible to give at least informal notice of an application. And it is equally almost always possible for the Judge hearing such an application to communicate with the intended defendant or respondent, either in a three way telephone call, or by a series of calls, or exchanges of e-mail. Judges do this routinely, including when on out of hours duty. Cases where no notice is required for reasons given in PD 25A para 4.3(3) are very rare indeed.

The giving of informal notice of an urgent application is not only an elementary requirement of justice. It may also result in a saving of costs. The parties may agree an order, thereby rendering unnecessary a second hearing on a return date”.

The usual justifications for without notice relief in employee disloyalty cases are urgency and secrecy.   This judgment is a timely reminder that mere urgency does not justify proceeding without notice.   Applicants should expect O’Farrell  to be prayed in aid on return dates if they cannot justify a failure to give at least informal notice.   And as the judgments in Caterpilllar Logistics have already demonstrated, an unnecessarily “heavy handed approach” to litigation against defecting employees can colour the Court’s approach to the availability of substantive relief.

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