England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Pumfrey)

		Royal Courts of Justice Strand London WC2 Friday, 17th May 2002

Friday, 17th May 2002

1. LORD JUSTICE PETER GIBSON: I will ask Longmore LJ to give the first judgment.
2. LORD JUSTICE LONGMORE: This is an appeal, with the permission of Sir Anthony Evans, against an order for indemnity costs and an order that they be paid forthwith after assessment. Mr Peter Cave, against whom that order was made, has written to the court to say that he will not be present to argue his appeal but that he does not abandon it.
3. Normally, if a litigant does not attend to present his appeal, that appeal will be dismissed; but in the circumstances of this case, I consider it would be appropriate to give a short reasoned judgment.
4. The order appealed was made in the context of an action brought by Borax Europe Ltd against their former employee, Mr Cave, for taking away confidential information at the termination of his employment on 31st January 2000 and thereafter causing a graph utilising that confidential information to be placed on a website under his, Mr Cave's, control. Borax brought proceedings in the Queen's Bench Division against Mr Cave to restrain the use of that confidential information and for other relief. Mr Cave brought proceedings in the Employment Tribunal for unfair dismissal.
5. In the court proceedings Borax sought interlocutory relief, which resulted in certain undertakings and cross-undertaking being given to Gray J on 1st August 2000. Mr Cave undertook among other things to deliver up a "backup tape" containing material on his personal portable computer. Lewis Silkin, solicitors for Borax, undertook among other things:

(1) to hold the tape in safe custody, with liberty to copy the contents of the tape in any way that did not damage the original; and

(2) to give a print out to Mr Cave of all e-mails on that backup tape.

6. Mr Cave, in purported compliance with his undertaking to the court, delivered a tape to Lewis Silkin, who sent it to an expert company called Vogon to examine it and transcribe its contents. When Vogon examined the tape, it proved to be a blank tape.
7. On 14th May 2001 Mr Cave launched an application to commit Borax and Mr Murray, its managing director, and all the partners of the firm Lewis Silkin, and in particular Mr Ian Jeffery of that firm, to prison for contempt as being in breach of the undertakings they had given to Gray J.
8. Mr Cave first complained that the e-mails on the tape had not been disclosed to him; and, second, that Lewis Silkin had tampered with the backup tape while it was in their custody. No allegation of any similar kind was made against Mr Murray or Borax. Mr Cave explained to the judge that he was not quite sure in the light of the terms of the order of Gray J against whom he should have launched his committal proceedings. But the fact remains that Borax and Mr Murray were alleged to be in breach of undertakings which they had never given.
9. In the course of the hearing before Pumfrey J of the committal application, Mr Cave accepted:

(a) that the tape he delivered to Lewis Silkin was the tape that was delivered to Vogon, who made the technical examination I have described;

(b) that Vogon concluded that the tape had not been used and was thus a blank tape; and

(c) that the tape delivered by him to Lewis Silkin could have been blank, not a tape that held the backup from his computer.

10. On 26th June 2001 Pumfrey J held that there had been no proper basis for making any allegation of dishonesty against Lewis Silkin, let alone against Borax or Mr Murray; and that was the foundation for his order that Mr Cave pay indemnity costs to the respondent to his application.
11. There has now been a substantive trial of the matters in issue in the action, and on 15th February 2002 His Honour Judge Peter Clark, sitting as a judge of the High Court, held (among other things) in the course of his judgment that Mr Cave had deliberately provided a tape which was blank and that the committal application was wholly mischievous.
12. I should read two short extracts from his judgment. First of all, with the heading "Backup tapes" at page 23:

"At the hearing on 1st August 2000, the Defendant told Gray J that he had a backup tape used to transfer information, including Borax information, from his old to his new laptop computer. He undertook to deliver that tape to Lewis Silkin and those solicitors undertook to copy the tape and to keep it safe. What the Defendant in fact provided, I am satisfied, was a blank tape, as the Claimant's specialist, Mr Sear, later discovered."

13. Then at page 28, under the heading "The Defendant's Committal Application":

"Although dismissed by Pumfrey J on the basis that on his own case in that application the Defendant could not show any breach of undertaking on behalf of the respondents to the application, I have now had the opportunity to make a further assessment of the overall picture presented by the evidence which I have heard. I regard this application as having been wholly mischievous in circumstances where I am satisfied that, far from there being any question of the Claimant or its solicitors interfering with or switching the backup tape delivered by the Defendant, in fact he delivered deliberately a blank tape. He has throughout accused the Claimant's solicitors of misconduct. I have seen nothing to support such a claim. On the contrary, it seems to me that those solicitors have conducted these proceedings with conspicuous propriety and not a little patience under extreme provocation, as distinct from the disreputable way in which the Defendant has flouted his own obligations."

14. Those extracts from that judgment completely confirm Pumfrey J's finding that Mr Cave had no proper basis for making allegations of dishonesty or for launching his committal application. Clearly, this was a case which was appropriate for indemnity costs. Sir Anthony Evans was concerned that an order for indemnity costs was an unusual order to make on a motion to commit which fails, and that solicitors should not be in any special position. Those concerns are now, subsequent to the grant of permission to appeal, shown to have no foundation on the facts of the case, and I would dismiss the appeal in relation to the order for indemnity costs.
15. The second ground of appeal on which Sir Anthony gave Mr Cave permission to appeal relates to that part of Pumfrey J's order which required the costs, once assessed on an indemnity basis, to be paid forthwith. Sir Anthony thought that the judge may not have intended to so order, because he took the view that the judge had said (at page 73B of the transcript) that the order for costs was only to have effect as a set-off against other sums which might subsequently be found to be due to Mr Cave by virtue of his proceedings in the Employment Tribunal. Pumfrey J was not in fact saying any such thing. The position was that Borax wanted an order from the judge that any compensation awarded by any Employment Tribunal should not be paid until after the assessment of indemnity costs had taken place. Quite rightly, Pumfrey J refused to make any such order, but pointed out that Borax could make that application to the Employment Tribunal at any appropriate time, and it would be for the Tribunal to make any relevant decision. The judge then speculated at page 73B what such order of the Employment Tribunal would be, viz:

"...payment to Mr Cave only to the extent to which it exceeds the sums already adjudicated or to be adjudicated as due and owing to you [viz Borax] on the assessment."

16. Without the benefit of argument, Sir Anthony has interpreted the judge's reference to that order which the Employment Tribunal might make as being a reference to the order which Pumfrey J was intending to make in the proceedings before him. Careful perusal of the 75-page transcript shows this was not so.
17. In any event, it is all overtaken by subsequent events since the Employment Tribunal has dismissed Mr Cave's claim and the EAT has dismissed his appeal. It is therefore right that the costs should in any event now be paid, and I for my part would dismiss the appeal in its entirety.
18. LORD JUSTICE JONATHAN PARKER: I agree.
19. LORD JUSTICE PETER GIBSON: I also agree.
Order: Appeal dismisses with costs summarily assessed at £8,000.