England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENF 97/1319/C

(MR R WALKER SITTING AS A DEPUTY HIGH COURT JUDGE)

Royal Courts of Justice

Strand

London WC2

Wednesday 19 November 1997

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE MILLETT

LORD JUSTICE MUMMERY

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FSS TRAVEL & LEISURE SYSTEMS LIMITED

Plaintiff/Appellant

- v -

1. PHILIP ANTHONY JOHNSON

2. THE CHAUNTRY CORPORATION LIMITED

Defendants/Respondents

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(Transcript of the handed down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR G TABACHNIK QC and MR R COLBEY (Instructed by Leuty & Lynch, Wokingham, RG40 1AP) appeared on behalf of the Appellant

MR S LENNARD (Instructed by Messrs Colemans, Maidenhead) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

JUDGMENT

LORD JUSTICE MUMMERY:

This case is an attempt by the Appellants, FSS Travel & Leisure Systems Ltd (FSS Travel), to enforce against Mr Philip Johnson, a computer software programmer formerly employed by them, a restrictive covenant contained in clause 21 (i) of a contract of employment signed by him on the 4 April 1996.

The covenant is in these terms-

"For a period of 1 year after termination of your employment hereunder (howsoever caused) you shall not:

(i) either alone or jointly as a manager or agent for any person directly or indirectly carry on or be engaged or concerned in any business in the United Kingdom which competes with the business of the FSS Group in which you shall have been personally concerned at the date of such termination."

On 16 May 1997 Mr Johnson gave 4 weeks notice terminating his employment. His intention was to enter into the employment of the second defendant, The Chauntry Corporation Ltd (Chauntry), a direct competitor of FSS Travel engaged in the designing and marketing of computer software for the travel industry in the United Kingdom.

On 13 June 1997 Mr Justice Maurice Kay granted an interim injunction against Mr Johnson. That injunction was continued by Mr Justice Alliott on 1 July 1997 until after trial or further order. A speedy trial was directed. The injunction was framed as follows-

"(i) ......the Defendant is restrained from working for, whether as an employee, an agent, partner, a director, a consultant or in any capacity whatsoever for The Chauntry Corporation Ltd........

(ii)......... the Defendant is restrained from working in the manner set out in (i) above or carrying on business on his own account so as to produce computerised booking systems for the travel industry;

(iii)...... the Defendant is restrained from using any confidential information belonging to the Plaintiff save that which has legitimately come into the public domain."

The trial of the action took place before Mr Ronald Walker QC (sitting as Deputy Judge of the Queen's Bench Division) on 16,17 and 18 September 1997. The deputy judge discharged the injunction, on the ground that the covenant was invalid, and directed that there should be an inquiry as to damages as a result of the injunction.

FSS Travel immediately appealed and made an urgent application to the Court of Appeal on 23 September for the injunction to be re-imposed until the disposal of the appeal. That application was granted on the basis of directions designed to ensure that the substantive appeal would be heard at the beginning of the second week of October. At the conclusion of the hearing of the appeal on 6 October, this court indicated that, for reasons to be given later, the appeal would be dismissed.

Factual Background

In 1990 FSS Travel was set up in business by its managing director, Mr Edward Spiers, in succession to an earlier company, Franek Software Services, of which Mr Spiers had been managing director between 1987 and 1990. The essence of the business of FSS Travel was the development and marketing of computer software to the travel industry in the United Kingdom using, as the principal programming language, Business/Thoroughbred Basic. The business is highly successful. The principal product of FSS Travel is a system made up of about 2,852 programmes, updated and modified very frequently, sometimes on a daily basis. Much of the computer programming is of a routine or mechanical nature, though there is a substantial creative element in the programming function, involving the selection of a series of steps to achieve desired solutions.

Mr Johnson, who is 25 years old, was employed as a computer programmer by FSS Travel from 25 March 1992. The contract of employment signed by him on 6 August 1992 did not contain any restrictive covenant.

He was later promoted to the position of a team leader, heading a team of four programmers. On 4 April 1996 he signed a new contract of employment containing the restrictive covenant. The new contract was in a standard form applied to all employees of FSS Travel. This was done on the advice of a firm of consultants engaged by FSS Travel.

Early in 1997 Mr Johnson decided to look for another job. On handing in his notice on 16 May 1997 he told FSS Travel that he had found a new job. He intended to work for Chauntry. He was informed that he would not be required to work out his notice period, that he would placed on "garden leave" and that FSS Travel were minded to restrain him from entering into his new employment. A writ was issued on 3 June 1997. A statement of claim of the same date contained these allegations:

"7. Chauntry is a direct competitor of the Plaintiff in that they produce computerised bookings systems for the travel industry. In creating such booking systems the Defendant used the same computer language as the Plaintiff, namely Business Basic.

8. During his course of employment with the Plaintiff the Defendant was engaged in exclusively programming on the Plaintiff's computerised booking system for the travel industry. By working for Chauntry on a computerised booking system for the travel industries in the same computer language the Defendant would therefore be engaged or concerned in a business which competes with the business of the Plaintiff in which he was personally concerned at the date of the termination of the contract and therefore in breach of paragraph 21 (i) of the Terms and Conditions of Employment referred to above.

9. The computer programme in relation to the Plaintiff's computerised booking system for the travel industry is confidential information as defined in paragraph 19 of the said Terms and Conditions of Employment and if the Defendant works for Chauntry he is bound to break the restrictions contained in paragraph 19 on using the Plaintiff's confidential information.

12. If the Defendant works for Chauntry the Plaintiff will suffer loss and damage and Chauntry will be given access to the solutions to technical problems with the Plaintiff's computerised booking system for the travel industry therefore by allowing Chauntry to attract customers or potential customers away from the Plaintiff."

The claim for breach of the confidentiality provisions in paragraph 19 of the contract of employment has not been pursued. Under that paragraph confidential information was defined to include all information which had been specifically designated as confidential by FSS Travel, but no information had been so designated at any time.

Mr Johnson's legal advisors served a defence contending that the covenant in clause 21 (i) was in restraint of trade; that the clause did not protect a legitimate interest of FSS Travel and went further than was reasonably necessary to protect any such interests; that the definition of confidential information was too wide and too imprecise to be enforced; that the period of restriction of 1 year was too long; and that the geographical limitation was too wide.

Not surprisingly a request was served for further and better particulars of the allegations in paragraph 9 of the statement of claim concerning the confidentiality of the computer programme relating to FSS Travel's computerised booking system to the travel industry. The response to that request is pertinent to the main point on this appeal: do FSS Travel have any trade secrets which they may legitimately protect by the covenant in restraint of trade? The response reads as follows:

"1 "Computer programme " as used in paragraph 9 is a generic term for the Plaintiff's travel systems. This consists of over 2,852 separate programmes which interact with each other to produce a commercially valuable process. It was originally set up in around 1988 by Franek Software Services Limited and was taken over in 1990 by the Plaintiff. It is updated on an almost daily basis and it is not necessary for the fair trial of the action nor practical to give a full list of every modification to the program. The Defendant has worked on 395 separate programs."

The particulars stated that no specific designation of confidential information had been made by FSS Travel; that no further particularisation of confidential information was appropriate; and that it was not FSS Travel's case that it had designated information as confidential.

The Judgment

At the trial oral evidence was given on behalf of FSS Travel by the managing director, Mr Edward Spiers, and by a computer consultant, Mr Joseph St Johanser. The court also heard oral evidence from Mr Keith Kelland, Mr Ray Vaughan, a director of Chauntry, and Mr Johnson. During the course of his submissions, Mr Tabachnik QC, for FSS Travel, referred the court to over 30 passages in the transcript of evidence relevant to the contention that FSS Travel has a legitimate interest to protect by the restrictive covenant i.e.trade secrets.

On that point, FSS Travel were successful before the deputy judge. His judgment may be summarised as follows:

1. FSS Travel and Chauntry were to a limited extent in competition with one another and,unless condition 21 (i) was unenforceable, Mr Johnson's proposed employment would inevitably breach the covenant.

2. FSS Travel had trade secrets which they were entitled to protect by the restrictive covenant in paragraph 21 (i). It was difficult to draw the line between what he described as " the Plaintiff's property " and " the Defendant's own property", namely his skill and experience as a programmer. The elements which he recognised as FSS Travel's trade secrets or property appear to be those referred to in the statement of claim and the particulars. He accepted the case of FSS Travel

"that all of the elements of the programmes together comprised the plaintiff's principal asset, that the content of the programme is confidential, and indeed secret, that the defendant is, or at the very least might at the time of the contract be expected to become familiar with the details of the individual programmes, or some of them, of the designed solutions to meet the requirements that had arisen and in the programming solutions that had been found to be the best solutions to the problems arising during the programming process."

He accepted the evidence of Mr St Johanser explaining the distinction between "the Plaintiff's property" and "the Defendant's stock-in-trade". He said of Mr Johnson:

"he has knowledge of the particular design solutions. It is nothing to do with being a better programmer. It consists of knowing particular things, particular solutions. A programmer in the Defendant's position is likely to know the elements of solutions to problems which he has encountered and to problems with a design or programming nature which others have encountered and resolved."

3. The scope of the activities restrained by the covenant was reasonable. He relied, in particular, on the judgment of Lord Denning MR in Littlewoods Organisation Limited -v- Harris [1977] 1WLR 1473 at 1479 commenting on the inadequacies of a simple covenant against disclosing confidential information, which could only be solved in practical terms by taking a covenant not to work for a rival in trade for a short period.

4. The geographical extent of the restraint was reasonable, having regard to the nature of the business of FSS Travel. Mr Johnson's Counsel conceded this point.

5. The duration of the restraint was not reasonable. He approached the matter on the basis that it was for FSS Travel to satisfy him that the duration of the restraint was reasonable and that it was not simply enough for them to assert that they thought it was reasonable: Leng & Co Ltd -v- Andrews [1909] 1 Ch 763 at 762. He relied on a passage in the opinion of Lord Wilberforce in Stenhouse Ltd -v- Phillips [1974] AC 391 at 402D:

"It is for the judge, after informing himself as fully as he can of the facts and circumstances relating to the employer's business, the nature of the employer's interest to be protected, and the likely effect of this of solicitation, to decide whether the contractual period is reasonable or not."

The deputy judge described the evidence on this issue as "exiguous" and referred to the fact that the restrictive covenant was not tailor-made either for Mr Johnson or the programmers in general; it was the brainchild of personal consultants advising FSS Travel. FSS Travel had been unable to provide evidence in support of the proposition that a covenant in this form was used by "virtually every company in the computer industry". He was "wholly unpersuaded that any such restraint was commonly encountered in relation to employees such as the defendant." He concluded that the 12 month restraint on a person in Mr Johnson's position was " unusually and unacceptably long", pointing to the absence of any direct evidence to demonstrate that that period of restraint was necessary. He observed that this was a " very fast moving industry, programmes are updated and modified very frequently, if not daily." He added:

"the Plaintiff's secrets are not of such a character that they are undiscoverable as opposed to consisting of design and programme resolutions which can be formulated by a programmer given time, the point being, as I understand it, that the Defendant, by way of his experience, could save such time or much of it. And the proposition that a 12 month restraint is necessary to protect the Plaintiff's commercial advantages not, in my judgment, established."

FSS Travel thus succeeded on every point before the deputy judge, save on the reasonableness of the duration of the restriction imposed on Mr Johnson.

Grounds of Appeal and Respondent's Notice

The basis of the appeal by FSS Travel was that, as he had concluded that the restrictive covenant was valid, that FSS Travel had trade secrets which they legitimately wished to protect and that the clause was reasonable in its scope, the deputy judge had erred in considering the length of time for which the clause could have effect as a wholly separate question. He should have considered it "as part of a factual matrix which would lead to a determination of its reasonableness or otherwise when considering those other factors."

Mr Johnson served a respondent's notice contending that the deputy judges's decision should be affirmed on the additional ground that he had erred in finding that FSS Travel had trade secrets that they were entitled to protect; that there had been a failure to identify adequately what material constituted the trade secrets; and that he had erred in finding that Mr Johnson's knowledge of particular design solutions or elements of the solutions to problems he had encountered constituted, or was capable of constituting, a trade secret.

On the hearing of the appeal the court indicated to Mr Tabachnik QC that it was principally concerned with the point raised by the respondent's notice. After full and helpful submissions on behalf of FSS Travel on that point, the court indicated that it did not require argument on the one year restriction point. Counsel for Mr Johnson was not called on.

Trade Secrets - The Law

On the question of the validity of a restrictive covenant for the protection of an employer's trade secrets Mr Tabachnik QC cited decisions of this court for a statement of the applicable principles: Littlewoods Organisation Ltd -v- Harris [1977] 1 WLR 1472; Office Angels Limited -v- Rainer-Thomas [1991] IRLR 214; and Lansing Linde Limited -v- Kerr [1991] 1 AER 418. Those cases expound and exemplify well settled legal propositions affecting restrictive covenants in an employment contract:-

1. The court will never uphold a covenant taken by an employer merely to protect himself from competition by a former employee.

2. There must be some subject matter which an employer can legitimately protect by a restrictive covenant. As was said by Lord Wilberforce in Stenhouse Limited -v- Phillips [1974] AC 391 at page 400 E (cited by Slade LJ in the Office Angels case supra):

"The employer's claim for protection must be based upon the identification of some advantage or asset inherent in the business which can properly be regarded as,in a general sense, his property, and which it would be unjust to allow the employee to appropriate for his own purposes, even though he, the employee, may have contributed to its creation."

3. Protection can be legitimately claimed for identifiable objective knowledge constituting the employer's trade secrets with which the employee has become acquainted during in his employment.

4. Protection cannot be legitimately claimed in respect of the skill, experience, know-how and general knowledge acquired by an employee as part of his job during his employment, even though that will equip him as a competitor, or potential employee of a competitor, of the employer.

5. The critical question is whether the employer has trade secrets which can be fairly regarded as his property, as distinct from the skill, experience know-how, and general knowledge which can fairly be regarded as the property of the employee to use without restraint for his own benefit or in the service of a competitor. This distinction necessitates examination of all the evidence relating to the nature of the employment, the character of the information, the restrictions imposed on its dissemination,the extent of use in the public domain and the damage likely to be caused by its use and disclosure in competition to the employer.

6. As Staughton LJ recognised in Lansing Linde Ltd (Supra) at p.425h the problem in making a distinction between general skill and knowledge, which every employee can take with him when he leaves, and secret or confidential information, which he may be restrained from using, is one of definition. It must be possible to identify information used in the relevant business, the use and dissemination of which is likely to harm the employer, and establish that the employer has limited dissemination and not, for example, encouraged or permitted its widespread publication. In each case it is a question of examining closely the detailed evidence relating to the employer's claim for secrecy of information and deciding, as a matter of fact, on which side of the boundary line it falls. Lack of precision in pleading and absence of solid evidence in proof of trade secrets are frequently fatal to enforcement of a restrictive covenant. Later decisions have not improved upon, or doubted the correctness of, the approach adopted by Cross J in Printers & Finishers Ltd -v- Holloway [1965] 1 WLR 1 at 5 A-C:

"If the information in question can fairly be regarded as a separate part of the employee's stock of knowledge which a man of ordinary honesty and intelligence would recognise to be the property of his old employer and not his own to do as he likes with, then the court, if it thinks that there is a danger in the information being used or disclosed by the ex-employee to the detriment of the old employer, will do what it can to prevent that result by granting an injunction."

Cross J gave examples of clear cases for restraint of an ex-employee eg using or disclosing a chemical formula, a list of customers, methods of construction or design features made known to the employee while in employment. He then considered knowledge which was not readily separable from the employee's general knowledge and his acquired skills: eg knowledge of the difficulties encountered in a process or of an expedient which the employee had found out for himself by trial and error during his employment. He doubted whether " any man of average intelligence and honesty would think that there was anything improper in his putting his memory of particular features of his late employer's plant at the disposal of his new employer." (p.6C-D).

The deputy judge's findings on trade secrets and the evidence on which he based them must be considered in the light of this approach.

Trade Secrets - The Evidence

In my judgment, FSS Travel failed to adduce sufficiently cogent relevant evidence to identify and establish a separate body of objective knowledge qualifying for protection as a trade secret by means of a restrictive covenant. It is not sufficient for the employer to assert a claim that he is entitled to an accumulated mass of knowledge which he regards as confidential. A claim is made by FSS Travel to what is described in the pleadings as the "computer programme in relation to the plaintiff's computerised booking system for the travel industry." It was not established that Mr Johnson left taking computer software with him or that he memorised the 2,852 programmes or any of the 395 separate component programmes on which he worked during his employment. The only specific knowledge relied on in the pleadings and in the evidence related to problems encountered and solutions found to problems in the computerised system, knowledge that " something can be done". Mr Spiers expressed particular concern in his affidavit evidence about Mr Johnson's knowledge of the way in which FSS Travel's system connected to various airline systems. In my judgment, however, the particular passages identified by Mr Tabachnik QC in the transcript of evidence show that Mr Johnson acquired skill, experience, know-how and general knowledge relating to the computer systems rather than a separate identifiable body of objective trade secrets to which FSS Travel were entitled.

Passages in the transcript of evidence illustrate the point. Mr Spiers said of Mr Johnson:

"He knows how to actually use the data that the airline systems provide back, the availability of flights for instance, the fares on schedules."(p.3).

Mr Spiers was asked:

"What are the secrets that you have that he could take with him as opposed to his ability to do it."(p.4).

Mr Spiers answered:

"There is the basic ability to do it, but once you have got that it is how you actually apply that information? The way we have applied that information has revolutionised one of our client's ability to actually talk to their resorts abroad and it is really the ideas that come from that, of how you change your internal programmes so that instead of putting them on faxes or mail you put them into e-mail, how people in the resorts use that information to incorporate into their own systems. He actually designed parts of that and he would have been working on the team that put the rest of that system together. So it is one thing to know how to do it, it is quite another to know how to do that relevantly."

In cross examination Mr Spiers said (p.18):

"It is not his programming expertise we spent 5 years training and experience in getting into him,it is knowledge of travel systems, it is knowledge of techniques and it is knowledge of ways that are used to give FSS a competitive edge in the market place. The fact that he can go and programme in Basic or any language in any other company is not what we are seeking to restrain, it is his knowledge over 5 years of some pretty in depth system development. The company has grown significantly in that time and Philip and others have been part of that part. Out of that comes a lot of knowledge and it is applications knowledge, it is travel systems knowledge that we are most worried about losing because that loses our competitive edge. It is not programming per se, we are not restricting him from programming anywhere at all, that is not the problem at all. So to call him a programmer is the wrong term to assess him. He is a travel systems programmer with an in depth knowledge of probably the best system in the UK. That is what we seek to have at least 1 years edge on in terms of our competition."

When asked about retention of computer codes and programmes by Mr Johnson, Mr Spiers emphasised that he was not saying that he could re-type 4,000 programmes:

"What one does know is how those 4,000 programmes hang together, what they are trying to do, what is different about them, what advantages they give our particular client base. That is what I am almost more concerned with." (p.25).

He added:

"It is the knowledge he has on our particular system that he could apply, not necessarily by typing the programmes in over a short period, but just by bringing to bear that experience and that knowledge in a similar environment in the same market place." (p.26).

When pressed about the confidential information he wished to protect, Mr Spiers answered:

"The programmes and the design methodology and the functionality contained within and the experience with clients who had developed. It is all of those things, is it not?" (P.26).

Mr Spiers recognised the difference between the information contained in the computer programmes and the skill acquired through experience in working on such programmes, but emphasised the forms of problem-solving involved, not just writing programmes and correcting programmes but also programmes that " the business and your clients bring to you for you to solve for them by your knowledge of previous experiences, how things work, what can be done, how it can be done."

He accepted that no individual could carry in his head all the information contained in the programmes.

When asked for concrete examples in terms of knowledge, Mr Spiers gave evidence about taking credit card bookings automatically from the system and the ability to put a foreign currency on the system. He described this as:

"A combination of technical know-how that it can be done and application know-how that says how and when to use it."

He added of Mr Johnson "he knows it can be done":

"In working on that and many other projects he sees how our particular system has grown in functionality and that functionality is what sells our system in competition to others. That is our competitive edge, that we have done this work. We have seen this in place in other places so we are better able to get new business."(p.30)

When pressed in cross examination with the question "What is the trade secret in this particular case ?", Mr Spiers answered:

"I would say just the knowledge that you can do it..... this is yet another point in the armoury of what the system can do." (p.36).

He added:

"It seems a little silly, but the confidential information in this particular case to me would be the mere fact that it could be done. Until we were asked to do it by a particular client we did not know it could be done, and what we are really saying is if Philip went to Chauntry and in discussions with a new prospect or client or whatever people were talking about in this way, he could put his hand up and say "That can be done, I know how to do that."(p.37).

"That is an edge that we have in meeting our own prospects and dealing with our own clients."

In response to a question "What does he [Mr Johnson] know that he can pass on to Chauntry if they want to do this?", Mr Spiers answered:

"He knows he used that data himself in our own programmes, in putting those screens together. Even in the areas he has not programmed I believe he has a passing knowledge of how these systems connect to each other, and that is different to saying he could go around, actually write all of the programmes and do all of the hardware configurations that are necessary. That is not even true in FSS, that any one person does every single aspect of that, there are three or four areas of expertise within that, but everyone at work will have their own personal area of expertise of the sort that allows them to write the programmes as we sit here sort of thing, but they will also have a knowledge of how that fits into the bigger scheme of things and what the other people with their own expertise are doing. So they have their own technical expertise to be able to reproduce and they have got their own applications expertise to say how this generally hangs together, how you use it, what you use it for."

In evidence to similar effect Mr St Johanser emphasised the fact that, once a programmer has addressed a particular sort of problem and written a programme that solves it, it is easiest when he is faced with the same problem to write a similar programme. Mr St Johanser said:

"He no longer has to produce a solution, he just remembers a solution. He knows, if he has done it, successfully before, of a way of doing it that works. Therefore to do it again becomes more mechanical process."

He gave evidence based on his knowledge of the Chauntry system and the FSS Travel system and said:

"Their main areas of functionality are very similar because they are addressing the same market needs. So in terms of functionality the systems will be very similar. However, in terms of details and implementation, no doubt they are very different, but successful problem solving at one site could be transplanted to another. It would have to undergo translation as we see it to a new set of standards , but that is not necessarily a difficult process."

Mr St Johanser gave evidence of what had been said by Mr Spiers about the problems concerned with the foreign currency, credit cards and the solutions to problems raised.

In his cross examination, Mr Kelland, a witness for Chauntry, agreed that there was a high probability that someone like Mr Johnson would take with him the solution to specific problems and his experience of how to create particular programmes for FSS.

Conclusion

It was submitted on behalf of FSS Travel that there was ample evidence before the judge on which he could, and was indeed bound to, find that FSS Travel had trade secrets justifying protection by a restrictive covenant. Reliance was placed on the passages of the transcript quoted above and on other extracts from the evidence of Mr Spiers and Mr St Johanser as proof of the existence of protectable trade secrets: evidence of what was secret about FSS Travel's system; of how Mr Johnson would know how the FSS Travel system "hangs together" ; how mere knowledge that something can be done may constitute confidential information; how information is retained by programmers; and how Mr Johnson would have been in a position to pass information on to Chauntry and apply at Chauntry solutions which he had discovered while working for FSS Travel.

I appreciate the general force of these submissions but, in my view, neither the pleaded case nor the oral evidence adduced in support of it is sufficiently specific, precise or cogent to establish the entitlement of FSS Travel to identifiable trade secrets. FSS Travel are essentially claiming to be entitled to control the exercise, after the termination of the employment relationship, of the skill, experience, know-how and general knowledge inevitably gained by Mr Johnson while employed as a programmer with FSS Travel. The evidence given on behalf of FSS Travel relates to knowledge on the part of Mr Johnson as to how to do his job and to the acquisition of skill and experience by him in the doing of it: it is lacking in concrete examples and in solid relevant detail, identifying a separate and specific recognisable body of objective knowledge designated by FSS Travel as confidential or secret material. The solutions cited as "specifics" are too vague and indefinite to constitute trade secrets protectable by the restrictive covenant.

The covenant is invalid. FSS Travel have no trade secrets legitimately protectable by the imposition of a covenant on Mr Johnson.It is unnecessary to express a view on the validity of the duration of the covenant. I would dismiss this appeal.

LORD JUSTICE MILLETT: I agree.

LORD WOOLF, MR: I also agree.

Order: Appeal dismissed. Respondents' costs of appeal and of Respondents' notice.