England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Birmingham Civil Justice Centre Bull Street, Birmingham B4 6DS
		12 June 2009

HHJudge David Cooke :

Introduction

1. This is an action about breach of confidence which is principally a dispute between two competing wholesale dairy companies, the claimant JN Dairies Limited and the first defendant Johal Dairies Ltd. I refer to these parties sometimes, as they were in the evidence, as JND and Johal, and given the similarity of many of the names I will also occasionally refer to individuals by their first name only, by way of shorthand and without intending them any lack of respect.
2. By his order of 3 December 2008 His Honour Judge Simon Brown QC set down the following preliminary issue for trial with an initial estimate of four days: "whether there has been any actionable breach of confidence or misuse of confidential information of the claimant by either defendant in relation to the invoices copies of which are contained within exhibit 'JSN3' ". It quickly became apparent that by reason of the number of witnesses to be called on each side the matter could not be dealt with within four days and the claimant applied to extend the time estimate of the trial of the preliminary issue to 10 days. By rearranging other matters I was able to extend the time allowed to eight days, and the parties agreed that they ought to be able to deal with matters in that time. I am grateful to them for having done so.
3. The claimant's business (that of the first defendant is very similar) is as a wholesale dairy. The claimant's customers are principally small shops and independently owned supermarkets, to whom they supply bread, milk and other dairy products. The claimant does not produce these products itself, but buys from major bakeries and milk producers such as Dairy Crest. These products are brought into the claimant's warehouse in Wolverhampton where in the early hours of the morning they are loaded into lorries and vans each of which will go off on a round to deliver to customers. A customer's requirements are not fixed each day so that on arrival the driver will take and record the customer's order, supply his requirements and move onto the next customer. The driver's records are then processed by office staff who produce a weekly invoice to the customer. Typically, those invoices are generated on a Friday or Saturday, and sorted out into a bundle for each round, contained in a plastic wallet. On Monday morning these wallets are placed into a series of filing trays on a rack in the claimant's warehouse, one tray for each round, so that each driver may collect the invoices for his round and distribute them to customers on Monday morning.
4. The central allegation in this case is that at about 2 a.m. on Monday 10 November 2008 the second defendant, a driver whose employment had been terminated by the claimant with effect from the previous Saturday (8 November) came into the warehouse, where he no longer had any business to be, collected all the wallets of invoices from the trays and left the premises. The claimant says that he then went to the premises of the first defendant and handed over to the invoices to Mr Surbjit Singh Johal (known as "Jitty") a director of the first defendant. From about 6 a.m. the second defendant began to visit the customers on his old round (round 19), but now driving a van owned by the first defendant, telling them that they would not receive a delivery from the claimant that day and inviting them to buy from the first defendant instead. Halfway through that round the claimant's general manager and two community "uncles" (who had vouched for the second defendant when he was taken on) caught up with him and in the course of a verbal confrontation the second defendant is said to have admitted that he took the invoices and that he had given them to Jitty. Subsequently, it is alleged that the first defendant's representatives have visited a number of the claimant's customers, on round 19 and other rounds, seeking to persuade them to transfer their business to the first defendant, and either producing or referring to the claimant's invoices in order to show that they knew what prices the customers were paying and could offer a better deal.
5. The second defendant has not contested the proceedings, although he has made a witness statement in which he denies stealing any documents or providing them to the first defendant. He went to India on 10 January 2009, where he remains. The first defendant's position is that it does not admit that the person entering the warehouse was the second defendant, denies that that person took any documents from the warehouse and denies that any invoices belonging to the claimant have been provided to it otherwise than as disclosed in the course of these proceedings. It denies having employed the second defendant at any time after 8 November 2008 and asserts that his presence in one of their vans on route 19 on the morning of 10 November was as an unpaid helper introducing the customers to one of their own drivers. The first defendant further denies that it has made any use of the invoices as alleged by the claimant, and denies that the invoices contained any confidential information which the claimant is entitled to protect.
6. The second defendant is also said to have confessed on two other occasions, first in December 2008 when speaking to Mr Sukhpal Singh, a friend who now works for the claimant, and secondly in India at the end of January 2009, when he met two men who had been asked by the claimant to serve documents relating to the claim on him. On each occasion he is said to have admitted that he was paid by the first defendant to take the invoices. The defendant's case is that these confessions are fabricated; the first occasion being entirely fictitious and the second one in which the claimant sent representatives to India to threaten and intimidate the second defendant into signing a statement on their behalf implicating the first defendant.
7. I will deal first with the issues of fact as to whether the invoices were or were not taken by the second defendant, whether they came into the hands of the first defendant and if so whether any commercial use has been made of them by the first defendant, and then with the primarily legal issue of whether in any event the information contained in the invoices is sufficiently confidential to be protected.
8. Before doing so however, I mention one matter by way of introduction and to set the context of the references in the evidence of a number of witnesses, and that is the Indian sport of Kabaddi. This was described as a team contact sport containing elements of rugby and wrestling. Many of the witnesses are involved in Kabaddi in one way or another; Mr Jaspal Nijjar is a promoter of Kabaddi teams and tournaments, and the second defendant Gurbir Singh is a well-known player, referred to by several of the witnesses by his nickname "Bhalwaan". A number of meetings and conversations are said to have taken place at or against the background of Kabaddi tournaments.

The evidence: events at the claimant's depot

9. I start with the CCTV evidence. This was supplemented by a large-scale plan produced at the start of the trial, and a series of photographs taken with the co-operation of both sets of solicitors and produced on the second day. The general layout of the claimant's premises is a long and fairly narrow building with offices at one end (taking up about a quarter of the building), the remainder being warehouse. Adjacent to the warehouse end of this building is a cold storage building and outside is a yard in which vehicles are loaded and unloaded. The entrance to the yard is by a gate at the office end, and there is a Portakabin building in the corner of the yard opposite that entrance. The rack containing the invoices is in the warehouse part of the building, against the wall dividing the office from the warehouse. It is underneath a set of metal steps leading up to a first-floor storage area above the office.
10. There are five security cameras in all. No pictures are available from camera 2, which is above the Portakabin and intended to sweep the area of the main gate and the yard. It is said to have been out of order for a period of about two years. The person alleged to be the second defendant can be seen on two of the other cameras, camera one and camera three. Camera one is mounted high above a corner of the yard and looks over the vehicle loading area, including a view through a large roller shutter door through which pallets of goods are taken from the warehouse to be loaded onto vehicles. Unfortunately, the invoice rack is not itself visible from this camera because it is behind a stack of bread trays. Camera three is located in the building close to the partition wall between the office and warehouse and looking down the length of the warehouse. The same stack of bread trays can be seen in the foreground. The invoice rack is out of view to the right, and in any event could not have been seen even if the camera had been moved to the right because it would be underneath the staircase.
11. On camera one, at about 1:58 a.m. a figure in a light-coloured hoodie top is seen to cycle through the yard from the direction of the main gate, into the building through the roller shutter entrance where he apparently dismounts and leaves the bicycle inside the building. He walks in and out of the roller shutter door a couple of times, on one occasion carrying in his hands a tray of bread which he places on to one of the vans. He then walks back into the roller shutter entrance and turns to the right, towards the area where the invoice rack is located. The rack itself cannot be seen, but there is a readily identifiable feature in view, being two metal columns which support a landing area at the top of the metal staircase. Underneath these columns is a door through to the offices (the door itself cannot be seen), and immediately to the right of that door is the invoice rack. The figure is seen first to walk to the left of the left-hand column, and then to pass in front of that column moving to his right. At this point he goes behind the stack of bread trays, so that only his head is visible. Between one frame and the next, the head disappears, without it being possible to see whether the figure ever passes to the right of the right-hand column, so reaching the area where the invoice rack is. The claimant says that he does so. The first defendant's suggestion is that he goes through the door into the office area.
12. The figure is out of sight for almost exactly one minute. His head then reappears from the right, apparently standing up from a crouching position and then passing between the camera and the right-hand column. He walks around the stack of bread trays, out into the yard through the roller shutter door and turns left in the direction of the main gate. He does not have his bicycle with him and does not reappear. He cannot be seen to be carrying anything in either hand.
13. The same figure can be seen on camera three. Again, he cannot be seen immediately adjacent to the invoice rack, but at the time he reappears on camera one, he enters the field of view on camera three, apparently coming from the area of the invoice rack. The pictures are not completely clear, and it is suggested that he may have a tan coloured bag in his hands which disappears, possibly placed under his clothing, as he walks around the side of the bread trays and out into the main warehouse area. One frame of the footage from camera three has been enhanced as a still image and is in the bundle at section D4. I have also had the advantage of being provided with a DVD of the camera footage which I have been able to replay on my computer in chambers, stopping at the frame in question and moving back and forwards a frame at a time. This has been very helpful, the images appearing with somewhat greater clarity than either the projection in court or the print from the single frame referred to above.
14. In my judgment having considered all this material, this frame does show the figure carrying something in his hands. What it is cannot be made out. It does not appear to be a sheaf of papers or plastic wallets containing papers, but it may be a bag of some sort. It is held in both hands in front of his body, which is consistent with the claimant's suggestion that it is a bag in which he is putting, or has put, invoice wallets taken from the rack. He cannot be seen to hold it after he re-emerges from behind the bread trays to leave the warehouse. The claimant suggests he may have put it under his hoodie top. None of the images are clear enough to show whether there is or is not a bulge in his clothes consistent with this, but it is observable that as he leaves the building and walks round and out of sight his left arm is held still by his side. This last point is not a point mentioned by counsel for either side, so I approach it with caution given that I have had no submissions on it by Mr Lord, but I observe that it would be consistent with holding something out of sight under his hoodie top, and contrasts with sequences earlier in which the figure is seen walking with his left arm moving freely.
15. I am satisfied that this sequence of pictures shows the figure go into the immediate vicinity of invoice rack, where he ducks down from view for a period which is long enough to enable him to collect all the packets of invoices from the various trays, and put them into a bag if he wished to do so, and re-emerges holding something in his hands which could be a bag containing the invoices. I do not accept the explanation that he may have gone through the door to the offices which is not in my judgment consistent with the point at which he reappears into view of camera one. I do not accept that the number of pages of invoices involved (approximately 700 plus the 23 plastic wallets to contain them) would produce a bundle too large to be carried or concealed in the way suggested.
16. The figure is thus seen on site for almost exactly 5 minutes. It is notable that having arrived on a bicycle he leaves without it (it was apparently still there at the time of the hearing), and he has evidently not come to do a job of work since he makes only a token effort of carrying one tray of bread out of the building. At no point is his face visible.

Witnesses evidence generally

17. I come on to the claimant's witness evidence. Before dealing with the individual witnesses, I wish to record my overall impression of them and their reliability. The defendant's case as put at trial was that no invoices had been stolen at all on 10 November and that all the claimant's witnesses, both those who were their employees and those who were not, had fabricated their evidence at the behest of Mr Jaspal Nijjar, the claimant's managing director. It was accepted on the part of the claimant that each of the witnesses had spoken to Mr Nijjar and told him what they had witnessed, and that Mr Nijjar had asked them whether they would be prepared to give evidence. In the case of customers, this usually happened after the customer had spoken either to a driver or to Mr Nijjar about some approach made by the first defendant. It was further accepted that the information they gave was passed on to the claimant's solicitors who prepared a draft statement which was then sent to the witness, in English, for them to approve or modify, and when they were happy with it they would sign it. Some of the witnesses do not speak English sufficiently well to understand the statement, and their explanation was necessarily given to Mr Nijjar in Punjabi. Mr Nijjar was assisted in passing it on to the solicitors by Mr Arshad Khan, and by Mr Nijjar's son, Manrupe Singh, whose English is better than his own. They were also involved in dealing with any queries raised by the solicitors and answering any questions that the witnesses themselves had.
18. Because it appeared that the defendants were calling into question the process by which these witness statements were prepared, the claimant called Manrupe Singh as an additional witness. In the end, after questioning him at length, Mr Lord QC on behalf of the first defendant made it clear that he did not make any suggestion of impropriety on Manrupe Singh's part. Although Mr Lord does suggest that Jaspal Nijjar procured each of the witnesses to give false evidence by suggesting to them what would be helpful to the claimant's case, Manrupe Singh refuted this in evidence which was in my judgment transparently honest.
19. None of the witnesses made any secret of the fact that they had spoken to Mr Nijjar, or that he had asked them if they would be prepared to give evidence and that he or someone on his behalf had taken down details of what they were able to say and passed them on to the solicitors to prepare a draft statement. They were all firm in saying that he had not asked them to insert any evidence that was untrue, that they had taken trouble to have the English statements translated to them by friends or relatives before signature where they did not understand English, and that what was said in their statement was true. I am fully satisfied that there was no orchestrated campaign to procure false evidence such as was suggested by Mr Lord.
20. Mr Lord pressed a number of the witnesses very hard in support of his client's allegations, cross-examining about surrounding detail at great length and suggesting to them that their evidence was invented or incredible. However, insofar as they faltered under his questioning, my judgment watching the witnesses was that this was almost always due either to misapprehension of the thrust behind sometimes complex questions posed through the interpreter or genuine failure of memory in relation to surrounding detail. When given the opportunity to express their evidence in their own words, the claimant's witnesses were generally convincing and what they said corresponded well with their written statements. Each witness's evidence must be assessed for credibility on its own of course, but I am satisfied that there was nothing to support the suggestion that they were all tainted by any general campaign of falsification of the sort that Mr Lord put forward.

Mr Jaspal Nijjar

21. A number of witnesses gave evidence as to the events of 10 November. Mr Jaspal Nijjar is the founder and managing director of the claimant. He said that about 1:30 a.m. he had gone out into the warehouse to put delivery notes for all the rounds into the trays on the invoice rack. The invoices themselves had already been prepared by office staff and were in the trays. He went back into his office to pray, where he has a television on his desk from which he can view the CCTV images. He saw the figure in the light hoodie top on-screen at about 1:57 and was able to identify him as Gurbir Singh, the second defendant, because he had seen Gurbir in these clothes before, and recognised the way he walked. Mr Nijjar was not challenged as to his identification, and nor were any other of the claimant's witnesses who identified him either by sight or from the CCTV footage. I am accordingly satisfied that this figure was Gurbir Singh.
22. Mr Nijjar thought it was odd that Gurbir Singh should be on site since his employment had terminated two days earlier, but he did not get up to go to challenge him immediately, preferring to finish his prayers. He did not realise anything was amiss until another driver asked at about 3 a.m. where the invoices were for his round. His first reaction was to tell the driver to look again since he was sure that the invoices had been put out, but he then checked himself and found that all the invoices for all the routes were missing. At that point he and his general manager Mr Arshad Khan began to make inquiries, including reviewing the CCTV footage, from which they concluded that the invoices must have been taken by Gurbir Singh. As and when drivers were ready to leave on their rounds, they did so. It was not necessary for them to have the invoices to make their rounds that day; there were sometimes administrative or printing delays and the invoices could perfectly well be delivered the following day.
23. He and Mr Khan did however decide to call in Mr Mohinder Maur and Mr Kulbir Sangha, the two community elders who had vouched for Gurbir Singh when he was taken on. They were referred to as his "uncles", not in the sense that they were his blood relatives, rather in the sense of respected and authoritative figures in the Sikh community who use their position to advise and support others. At about 6 a.m. a telephone call was received from the replacement driver on Route 19 saying that on arrival at the first customer he had found that Gurbir Singh had already delivered to that customer on behalf of Johal. Shortly after that, Mr Nijjar went home to get some sleep, leaving matters in the hands of Mr Khan.

Mr Jagjit Singh

24. Mr Jagjit Singh gave evidence that also identified Gurbir Singh. He is employed by the claimant to assist in the loading of vehicles and said that he was at work that morning standing inside one of the trucks when he saw Gurbir walk past him into the building. A few minutes later, he was inside the Portakabin looking out of the window when he saw Gurbir walk out of the gate, carrying a bag in his left hand, and get into a silver Mercedes car. He had seen him clearly in the light from the two security lights on the building next to the gateway. He was not able to describe the bag and could not tell what colour it was because of the way the light was shining on it. He thought nothing of it at the time but when questions were asked at about 4 a.m. as to whether anyone had seen Gurbir on site he reported what he had seen to Mr Nijjar.
25. Questioned by Mr Lord about what he had been doing in the Portakabin at that time, Jagjit Singh was somewhat hesitant, but said that he thought he had received a call on his mobile phone and gone into the Portakabin to take it. This was not a matter that had been dealt with in his witness statement and may not have been at the forefront of his mind. I did not get the impression that he was making up his story as he went along. He was also somewhat unclear as to the details of the process and order of events in loading and dispatching vehicles, but in my judgment this was likely to be due to misunderstanding the import of the questions he was asked. On the essential elements of what he had seen Jagjit Singh's evidence was clear, and he firmly denied any suggestion that he had been told what to say. I accept his evidence, and based on that evidence find that when Gurbir Singh left the site he was carrying a bag, and that he got into a silver Mercedes motor car.
26. This of course, coupled with his short stay on site and the fact that he left his bicycle behind strongly suggests that his visit was to get this bag, or what was in it, that this was an illicit purpose making it worth while abandoning the bike, and that it had been arranged in concert with someone else who was to pick him up once this purpose had been achieved. Mr Lord suggested to Jagjit Singh that he had had referred to a silver Mercedes because Gurnek Johal (brother of Surbjit and also a director of the first defendant) is known to drive a silver Mercedes, but Jagjit Singh said that he did not know Gurnek or what car he drove. The claimants themselves do not lead any evidence as to who was the owner or driver of the car, so that evidence does not in itself link Gurbir's actions to the first defendant.

Mr Arshad Khan

27. Mr Arshad Khan is the claimant's general manager. His evidence was that he came to work at about 2:30 a.m., which of course was after Gurbir had departed. Nothing was thought to be wrong until about 3 a.m. when one of the drivers asked about his missing invoices and it was discovered that they had all disappeared. Mr Nijjar and Jagjit Singh told him they had seen Gurbir Singh on site, and he then checked the CCTV and identified Gurbir himself from his clothing, the fact that he was riding a bike, and his walk. He contacted Gurbir Singh's two referees, Mr Kulbir Sangha and Mr Mohinder Maur, by telephone, and they came into the dairy by about 5 a.m. They were extremely angry, feeling that Gurbir Singh had dishonoured them by his actions, and wanted to know where he was. When the news came through that he was visiting the claimant's customers in Manchester on behalf of the first defendant, they insisted on being taken to Manchester to confront him. Mr Khan drove them there in his car.
28. They waited for Gurbir Singh at one of the shops, a NISA store at Derbyshire Lane, and followed him in. There was an argument between the two uncles and Gurbir about the return of the invoices. Mr Khan was not directly involved in this himself, but heard Gurbir tell the uncles "I have given them to Jitty " and later on Gurbir having been told by the uncles to get the invoices back said "I'll get them back from Jitty ". Mr Khan told the police (correctly) that Gurbir was an illegal immigrant and they arrested him and took him away to a police station. Mr Khan followed and gave a statement at the police station. It was alleged that Mr Khan had taken Gurbir's keys to the van and not return them, resulting in new ones having to be purchased, and that two tyres on the van were punctured. Mr Khan admitted that he had found the keys where Gurbir had left them, but said that he had simply throwing them into the van and locked the door. He denied that any tyres had been punctured.

Mr Kulbir Sangha

29. Mr Kulbir Sangha was called. His evidence was that he had been telephoned in the early hours by Mr Maur, not by anyone at the claimant. They had gone together to the dairy, been told what had happened and seen the CCTV pictures. He had gone in one car with Mr Khan and Mr Maur to Manchester, where he confirmed that he had confronted Gurbir Singh about the invoices and Gurbir had told him that he had taken the invoices and given them to "Jitty". There was some slight discrepancy from his statement in that he could not recall any episode concerning the keys to Gurbir Singh's van, but this was a peripheral matter that did not affect my overall impression that Mr Sangha gave honest and reliable evidence. He denied the suggestion that the argument was nothing to do with stolen invoices and all about Mr Arshad Khan's furious reaction to one of his drivers going to work for the competition.

Mr Sukhvinder Sandhu

30. One other witness was present at the scene of the confrontation at the shop on Derbyshire Lane. He was Mr Sukhvinder Singh Sandhu, the driver employed by the first defendant who went out with Gurbir Singh on route 19 on that morning. Somewhat remarkably, he gave his evidence for the claimant. It was that he had begun to work for the first defendant only a few days beforehand, on Thursday 6 November, and was initially training and helping out another driver called Mindaugas Brazauskas. On Saturday 8 November he was asked by Mr Surbjit Johal to come earlier on the morning of Monday 10 November to drive the new route accompanying a driver called "Bhalwaan". He arrived at about 1:30 am and was told by Jitty to wait inside the yard, near the gate, for Bhalwaan to arrive. Jitty was rushing around making calls or on a mobile telephone urging someone to hurry up. About 2:00 or 2:15 am Jitty went across the road outside the yard and came back holding a bag which he quickly put under his coat. Jitty then told Mr Sandhu to go off with Bhalwaan in a white transit van which was parked around a corner and already loaded with milk. This they did, first visiting a customer in Northwich at about 4:30 am, where Bhalwaan, who by now had told Mr Sandhu that his real name was Gurbir Singh, took an order for the next day. From this he was confident that they left the depot well before 4 am.
31. He recalled that Gurbir was wearing a light coloured hoodie top and told him that he was involved in Kabaddi. Gurbir also told him that they would have to be careful that day as there were some problems with JN Dairies and there might be some trouble. In due course, they reached a shop on Derbyshire Lane, during the morning rush-hour. They both went into the shop and Gurbir began to talk to the owner, negotiating a supply of milk to him. Two or three men came in, one of whom he recognised as Mr Mohinder Singh Maur. He did not know Mr Maur personally but recognised him as a very well-known personality in the Kabaddi world. He heard an argument in which Mr Maur said to Gurbir Singh "what have you done? You have shamed us!" And both Mr Maur and one of the other men, whom he now knew to be Mr Kulbir Sangha, demanded that Gurbir should give back the invoices. He heard Gurbir say, several times, "I have given them to Jitty". He gathered from what he heard that Gurbir was being accused of having stolen invoices from JN Dairies, and that this was the "trouble" that he had warned about.
32. Mr Sandhu's evidence was that there was a lot of noise during this argument but no violence, Mr Maur and Mr Sangha who are quite elderly were simply holding Gurbir by the arms. No one was paying any attention to him, so Mr Sandhu left the shop and walked away. While doing so he saw two other men whom he took to be connected with JN Dairies letting down the tyres of the Johal van by putting screws in the valves (and not by puncturing them). He knew nothing about the keys to the vehicle. He saw a police car arrive. He telephoned his brother and arranged to be picked up and taken back to the Johal depot in Wolverhampton where he arrived at about 1:30 pm and told Jitty what had happened. He had been subsequently asked by Jitty to sign a statement, which had been prepared in advance for him, but this referred only to the allegations by Johal of assault on Gurbir Singh and interference with their van.
33. Mr Surbjit Johal's account was put to Mr Sandhu in chief and in cross-examination, and, in so far as it related to himself, Mr Sandhu firmly, and to my mind convincingly, denied it. He maintained that he had been told about the proposed trip to Manchester on the previous Saturday, and not on the morning of 10 November itself, denied that he had helped Mindaugas to load his lorry and denied that he had been in that lorry ready to go out with Mindaugas at about 4 am when it was stopped at the gate by Jitty who asked him to get out. He had never been in the lorry to get out of it, and he had left the Manchester with Gurbir well before 4:30, the time given by Mr Johal. He was not shaken on his statement that he saw Jitty carrying a bag when he came back across the road and told him to get into the van with Gurbir, or that this was about 2 am or 2:15, and not after 4 am as Mr Johal had said.
34. Mr Sandhu did accept that although he had been warned about possible trouble, and heard the argument about invoices, Gurbir had not mentioned any invoices to him before they reached the shop, or admitted that he had stolen any invoices. When Mr Sandhu got back to the Johal depot he told Jitty what had happened but did not mention that Gurbir had said anything about having given invoices to Jitty.

Gurbir Singh

35. Gurbir Singh of course has not attended to give evidence. He swore an affidavit in India dated 12 February 2009, which the first defendant asked me to take into account with appropriate consideration as to its weight. This statement concentrates almost entirely on allegations that he was offered a bribe of £20,000 to make a statement in favour of the claimant, and threatened with some harm if he did not do so. As to the substance of the proceedings and the allegations made, all he says is that he is aware of the proceedings and "I confirm that I did not steal any documents from JN Dairies Ltd and I did not provide any documents to Johal Dairies Ltd." He thus makes no comments at all about whether he went to the claimant's premises on the morning in question, or about the incident at the Derbyshire Lane shop.

Mr Parmjit Dhillon

36. The claimant had one other witness in respect of the confrontation at the shop, Mr Parmjit Singh Dhillon, an accountant based at their depot. His evidence was that in the course of a phone call to Mr Khan while Mr Khan was at the shop, he overheard the row going on in the background, and heard Gurbir Singh say "I have given them to Jitty". I have no reason to doubt Mr Dhillon's honesty, but in reaching my findings as to what happened at the shop, I rely principally on the evidence of the witnesses who were there.
37. Having heard that evidence, I am satisfied that the confrontation took place as described by the claimant's witnesses, and that Gurbir Singh was accused of having taken the invoices from the claimant and in response to that accusation he did say "I have given them to Jitty". That of course amounted to an admission that he had taken the invoices in the first place as well as an assertion that he had passed them to the first defendant. Before reaching a conclusion as to whether he had in fact done so, I will summarise the evidence of events leading up to and following the morning of 10 November, which the claimants say, and the first defendant denies, point to the conclusion that Gurbir Singh stole the invoices by prior arrangement with the first defendant (although this is not in fact part of their pleaded case), and handed them over to the first defendant in pursuance of that arrangement.
38. The first defendant's case in summary is that it knows nothing of any stolen invoices at all, and had no arrangement for Gurbir Singh to go out with one of its drivers on the morning of 10 November until Mr Surbjit Johal received a phone call from him at about 3 am that day, whereupon he was asked to come to the depot, Mr Sandhu was taken off the job he would otherwise have been doing, and arrangements were made for the two of them to go out in a van along Gurbir Singh's old route with a view to winning the customers over to Johal.
39. The claimant of course has no direct evidence of any such arrangement, and is obliged to rely on inferences from circumstantial evidence. Part of this is the evidence of Mr Sandhu, which I have referred to above, that he was told two days in advance that he would be going out with "Bhalwaan", that is to say that Gurbir Singh, on the Monday morning, that he should come in early for that purpose, and that when he arrived he did not do his normal work with Mr Brazauskas but was told to wait until Bhalwaan arrived.

Mindaugas Brasauskas

40. The first defendant called Mr Brazauskas, who confirmed that he was the driver with whom Mr Sandhu had worked between 6 and 8 November 2008. He supported Mr Surbjit Johal's account, saying that Mr Sandhu was assigned to help him on those days and on 10 November as well, that he had arrived at the depot at about 1:50 am, Mr Sandhu arriving at about the same time, and that they then spent about two hours loading up the lorry together. They had left at about 4 am, as shown on his tachograph sheet (which was produced) and that as they were driving out through the gates, Mr Johal had stopped the lorry and asked Mr Sandhu to get out, saying "I need this driver".
41. Mr Brazauskas, I am afraid to say, was not a convincing witness. He appeared to be very nervous throughout the whole of his evidence. Having said that it took two hours to load the vehicle, he then accepted that on 6, 7 and 8 November the tachograph records showed that he left the depot at between 3:15 and 3:30 am, or between one hour 25 minutes and one hour 40 minutes after his stated time of arrival. He then accepted that this was about the time taken to load the vehicle if two men were involved, but that it took about two hours if only one man was involved. Asked how it was that it took two hours 10 minutes on the Monday although two men were involved in the loading, he said that on Monday there were more goods to load and he had more shops to visit. Although this is not inherently implausible, the way in which he gave that answer gave me the impression that he realised he had been caught out in an inconsistency and was struggling for an answer. This impression was reinforced when Mr Flynn had concluded his questions, and Mr Brazauskas suddenly volunteered that he thought he remembered that the milk had been late been delivered to the depot that day, although he could not be sure. This was not something Mr Surbjit Johal had mentioned, although both he and Mr Brazauskas said that it was Surbjit Johal himself who loaded the milk with a forklift.
42. Mr Brazauskas's evidence about his lorry moving off and being stopped at the gate was in my view inconsistent with the tachograph sheet produced for that morning. It was put to him that such a stop would be shown on the tachograph records, but that nothing like it could be seen. His answer was that the lorry had moved off at an extremely slow pace which could not be seen on the tachograph, and that he had only stopped very quickly while Mr Sandhu got out of the vehicle, and this stop would not show up either. There are photocopies of the tachograph sheets in the bundle, and I had the advantage of seeing the originals. From these it appears that on 10 November the vehicle was started and immediately began to move very shortly before 4 am, when it accelerated fairly rapidly and smoothly up to a speed of about 60 km/h. When the tachograph commences recording, the line marked begins from a position below zero on the speed scale, cutting the time scale as it moves up to zero. This can be seen just before 4 am, with no period of slow movement or stationary standing shown before the rapid acceleration to 60 km/h and no pause in this period of acceleration, still less any return to zero. The vehicle decelerates briefly to about 30 km/h approximately 5 minutes after starting, and comes to a halt about 10 minutes after starting, for a period of about five minutes which Mr Brazauskas said was his first stop.
43. It is obviously unlikely that a speed of 60 km/h was achieved within the depot itself. Although Mr Lord urged me to be cautious in interpreting the tachograph records in the absence of any expert evidence, in my judgement it is evident from looking at the records themselves that they show the movement of the vehicle in very considerable detail, and that the scales of both speed and time are sufficient to show up even movement at the sort of walking pace that Mr Brazauskas indicated he had started at, and also changes of speed lasting very short periods of time (eg the very brief deceleration from 65 to 30 Km/h and return to 70 km/h at about 4:05am). Even if it had been possible for the lorry to move off at such a slow speed that it did not register on the scale of speed at all, this would be shown up by a horizontal line at zero speed for a brief period after the tachograph starts and until the lorry reached the gate (I am satisfied that if the lorry was going at such a slow speed this would have taken a sufficiently long time to show up on the tachograph record), after which it would accelerate. No such line appears on the 10 November sheet, although the one for 6 November does appear to show a short stationary period after the tachograph was switched on and before the lorry moves off.
44. As between Mr Brazauskas and Mr Sandhu's accounts, I have no hesitation in preferring that of Mr Sandhu, but before reaching my conclusions of fact I will consider the other evidence in relation to the events on and leading up to 10 November and Gurbir Singh's involvement with the first defendant.

Mr Mike Patel

45. The claimant relied on evidence of two customers to show that Gurbir Singh was expecting to move to work for Johal Dairies before 10 November. Mr Mike Patel is a partner in a business which runs three NISA shops, one of which he manages at Sunderland road Altrincham. His evidence was that in the week beginning 3 November Gurbir Singh had told him several times that he would be leaving JN Dairies the following week to work for Johal Dairies, who would be able to offer him a better price. He also gave evidence that Gurbir Singh turned up in a white van on the morning of 10 November and offered him a very cheap price, as a result of which he bought milk on that day. He was questioned about the events on the morning of 10 November, but it was not suggested to him that he was wrong in saying that Gurbir had told him the week before that he would be leaving the claimant and joining Johal. I accept Mr Patel's evidence.

Mr Hitendra Patel

46. Mr Hitendra Patel is another member of the partnership, and he runs its store at Deansgate Lane in Altrincham. His evidence also was that in the week from 3 November 2008 Gurbir Singh told him several times that he was going to leave JND and start working for Johal Dairies, asking if he would be interested in transferring his business and offering a better price. He too was not challenged as to this part of this evidence, and I accept it.

Mr Mohammed Asif

47. The first defendant also called one of the claimant's customers, Mr Mohammed Asif, who runs an off-licence called Team Spirits. The purpose of his witness statement was to support the first defendant's contention that Gurbir Singh had worked for the claimant for much longer than they said. However in cross-examination he expanded upon his witness statement in a manner which undermined the first defendant's case and instead supported that of the claimant. Mr Flynn asked a number of questions about how he came to transfer his business to Johal Dairies, in response to which Mr Asif said "well the milkman who used to deliver he used to work for JN Dairies and he said he was going to move to Johal Dairies… I cannot remember specific dates. He said he was going to move to Johal Dairies and he said that he could get a better rate and I said that that was fine… he spoke to me, he said I am going to move soon and I am going to work for somebody else, I can get you better prices for milk that you get delivered, it is going to be the same milk and everything, so I said that's okay." It was clear from this evidence that Mr Asif had been told by Gurbir Singh before 10 November that he was going to be moving to Johal Dairies.

Mr Surbjit Johal and Mr Gurnek Johal

48. The first defendant's principal evidence came from its two directors Mr Gurnek Johal and Mr Surbjit Johal. They each filed witness statements dated 2 December 2008 opposing the interim injunctions initially sought by the claimant. Mr Gurnek Johal said that the second defendant had been employed by Johal until 14 April 2007^[1] and went on to say:

"31 As to Johal's relationship with the second defendant, we had no contact with him in relation to business concerns from the termination of his employment with Johal until 10 November 2008. He has not been employed by Johal at any time since 10 November 2008 and is not employed by Johal. Whether the second defendant did or did not steal customer invoices and delivery notes from JND on 10^th November 2008 is outside of my knowledge…

33 I am aware from Jit that the second defendant contacted Jit by telephone on 10th November before coming to Johal's premises. Neither Jit nor I had any contact with the second defendant between when he left Johal's employment on 14 April 2007 when he contacted Jit on 10 November 2008…

34 It is true that the second defendant did accompany one of Johal's drivers, Sukhvinder Singh, on the second defendant's former round on 10 November 2008, pointing out those customers he had formerly delivered goods to on behalf of JND. On the 11^th- 14thNovember 2008, the second defendant accompanied another of Johal's drivers, Steve Goodwin, on his former round. On 15 November 2008 the second defendant accompanied Sigitus Dublois on his former round. "

49. This account was backed up by Mr Surbjit Johal who said the following in his first witness statement:

"5 Since the second defendant left Johal's employment on 14 April 2007, Johal has had no business dealings with him whatsoever. The second defendant would occasionally call me up, but I can confirm he was never employed by Johal after April 2007 nor did he provide any delivery or other services for Johal until Monday the 10 November 2008, when I received a telephone call from him out of the blue.

7 On Monday 10^th November, I arrived at work at 12:30 am. At about 3 am I received a call from second defendant. Again I should state that this call came completely out of the blue and that I was surprised to hear from the second defendant I will as I would have assumed he would have been preparing for or would have been on his delivery round for JND.

8 The second defendant told me that he had had a recent falling out with JND and that he was no longer in their employment or making deliveries for them. He told me that he did not think there would be anyone who would be familiar with his route and ready to cover it, and that there was a real possibility that JND would not be able to fulfil the orders that morning.

9 I saw this as a good opportunity to make some money by fulfilling the orders that would be left empty on the second defendant old route…

11 We therefore agreed that the second defendant would make his way over to our depot and would accompany one of our reserve drivers on the second defendants old delivery route… the second defendant arrived at around 4:30 am and went off with one of our drivers Sukhvinder Singh

16 I was given no documents by the second defendant whatsoever…. "

50. Mr Gurnek Johal and Mr Surbjit Johal each made further witness statements dated 13 February 2009, in which they confirmed the accuracy of their earlier statements. Mr Surbjit Johal made a third witness statement, dated 9 March 2009, confirming the accuracy of both his earlier statements and dealing principally with the statement of Mr Sukhvinder Singh Sandhu, which had been served on 5 March 2009. He confirmed that Mr Sandhu had been employed between 6 and 17 November 2008, and assigned as a trainee driver to work with Mindaugas Brazauskas. He went on to say:

"8 I categorically deny that I told Sukhvinder on 8^th November that he would be accompanying another driver on Monday 10^th November on a new run to Manchester or that I asked him to report to work earlier than usual. … on 10^th November 2008, I asked Sukhvinder to assist Mindaugas, as he had done on each of 6^th, 7^th and 8^th November. Sukhvinder did as he was instructed. I had no further conversation with Sukhvinder until he and Mindaugas were about to leave the depot at approximately 4 am…

9 … I was not contacted by Gurbir until approximately 3 am so until that point I had no expectation that he would be at our premises that day… "

51. Mr Surbjit Johal denied telling Mr Sandhu on that morning that he would be accompanying a driver named "Bhalwaan", telling him to wait for Bhalwaan to arrive and making repeated calls to Bhalwaan on a mobile phone asking him where he was and when he would be arriving. He produced copies of his mobile phone records for that day showing no calls to Gurbir Singh's number until just after 4 am when he made two calls of six seconds and four seconds duration respectively, which he said were because Gurbir had initially rung him at 3 am but not arrived by 4 am and he wanted to know where he was. He had called various other employees who were late for work to chase them up. Mr Johal also denied waiting with Sukhvinder, rushing across the road at about 2:15 am and returning a couple of minutes later holding a bag which you put under his coat and said that about 4 am, before Gurbir had arrived, he had stopped Mindaugas and Sukhvinder Sandhu as they were leaving in the lorry and asked Mr Sandhu to get out of the lorry. Sukhvider and Gurbir had then left together in a van at about 4:30 am. He had been telephoned by Gurbir Singh at about 9 am and told that he was being attacked by about five or six people. He then telephoned the police and made a flurry of telephone calls to Gurbir's number mostly for a few seconds only, probably because they had diverted to voice mail. At about 1:30 pm Mr Sandhu had arrived back at the depot and told Mr Johal that Mohinder Singh Maur and another man had accused Gurbir of stealing invoices from JND. He made arrangements to collect the van, having been told by Sukhvinder that the tyres had been let down, and was informed afterwards that (contrary to Mr Arshad Khan's evidence) the keys to the van had not been left inside it.
52. By the time Mr Surbjit Johal went into the witness box, his mobile telephone records had been disclosed for periods before and after 10 November 2008. He was obliged to accept that he had called Gurbir Singh several times in the week prior to 10 November, including calls made using his brother Gurnek's telephone. Mr Surbjit Johal's account of these calls was that a message had been left with the receptionist from a "Mr Singh" asking to speak to him. He did not know at first who it was, but was told that the caller had used the name "Jitty" and so was obviously somebody who knew him. He had tried to return this call unsuccessfully twice on 3 November, when the records show a three second call at 10:24 am which he said was probably not connected and he had hung up when diverted to voice mail, and a 23 second call at 15:22, which he said was also not connected. He had first spoken to Gurbir on Gurnek's phone at 7:18 am on 4 November, for just over four minutes. The next call is shown are at 4:12 am on 7 November (50 seconds) and 16:12 on 8 November (three seconds, so again probably unconnected), and four calls on Sunday 9 November, all on Gurnek's phone but according to Mr Surbjit Johal, made by himself. These were for four seconds at 12:16 pm, three minutes 25 seconds immediately afterwards, 23 seconds at 16:41 and six seconds at 18:26. Mr Surbjit Johal's evidence was that in the earlier calls he had offered Gurbir a job delivering to schools, but without a definite start date as he did not know when he would be leaving JND, and the reason for the calls on 9 November was to specify a start date of 17 November.
53. It was put to him that it could not have been correct for him to say in his witness statements that the court on the morning of 10 November came "out of the blue", to which he responded that what he had meant was that when Gurbir had rung on 10 November he had told him that he actually finished employment with JND that morning, which was a surprise to him. Gurbir had previously been enquiring about a job but had not given a particular leaving date, and had telephoned on the 10^th to say that he had had a falling out with JND and left work that morning, and did not believe anyone would be able to cover his round.
54. I do not accept this as an explanation. Gurbir in fact finished his employment with the claimant on 8 November and so there is no reason why he would not have told Mr Johal that when they spoke on the 9^th. The admission that there had been earlier telephone calls to discuss a possible job for Gurbir is plainly inconsistent with the earlier witness statements of Mr Surbjit and Mr Gurnek Johal that there had been no contact prior to 10 November in relation to any business matters. If there had been such discussions, even without a definite starting date, it plainly gave a misleading impression to say his call on that morning was "out of the blue". A call from someone to whom he had spoken recently, and to whom he expected to speak again about the same matter, cannot reasonably be said to be 'out of the blue' even if the specific content of the call is not anticipated.
55. Mr Surbjit Johal said that during his conversations with Gurbir Singh while he was at the Derbyshire Lane shop on 10 November 2008, Gurbir had told him that he was being assaulted, and accused of taking JND invoices. He maintained that he had not asked Gurbir whether he had in fact taken any such invoices and said that his only concern was the fact that Gurbir was being assaulted. He felt that the reason for the assault was because he had brought his round over to Johal.
56. Gurbir Singh was arrested by the police. According to Mr Surbjit Johal's witness statement^[2], Gurbir told him that he was questioned by the police on 10 November and 12 November in connection with the theft of invoices, and bailed to return to the police station on 11 December 2008 for further questioning. Mr Johal said "after Gurbir Singh's arrest on 10 November 2008 I was visited by police officers investigating the allegation by JND that Gurbir had stolen a quantity of invoices and delivery notes from JND and handed them to Johal. I told the officers that Gurbir had not provided any documents to me or anyone else at Johal. I was not arrested and I was not asked to give a statement." He was also told about the alleged theft of documents by Mr Arshad Khan and others of his drivers who had heard about it.
57. Although he had been informed on 10 November by both Gurbir Singh and Arshad Khan of the allegation that Gurbir had stolen JND invoices, he maintained that he did not ask Gurbir about this allegation at all on the 10^th November, being concerned only about the alleged assault, although he did ask him about it the next day. On 11 December Mr Surbjit Johal himself drove Gurbir Singh to the police station. Asked if this was unusual, he said he had just done it to help Gurbir out and that he had previously taken drivers to the police station when required to produce their documents. Pressed for further details, he said he could recall one previous such occasion and this was the second. Asked by Mr Flynn what his concerns were about these events he said that he had no concerns at all, either for Johal's own position or for Gurbir Singh. It was suggested that if he had no concerns on either count, taking Gurbir to the police station was nothing to do with him, but he maintained that he had done it out of kindness because Gurbir had requested it.
58. I was not persuaded by this evidence. It was neither plausible, nor convincingly given. If, as Mr Johal maintained, he had merely been approached by Gurbir with a view to a job at some indefinite date in the future when he left JND, taken by surprise on the morning of the 10th by a sudden call to say that Gurbir was now available and in response made a quick arrangement to try and pick up custom on his old round, it is impossible to believe that he would not have been surprised and concerned that the situation was getting much more serious when accusations started to be made, with police involvement, that invoices had been stolen and passed on to Johal. Even if it were not true that the invoices had been passed to Johal, Mr Johal would be bound to have concerns as to whether Gurbir had in fact taken them and if so whether it would be believed, erroneously or not, that this was part of a prior arrangement with Johal.
59. The telephone records show that on 10 November there were literally dozens of calls made to Gurbir's number from both Surbjit and Gurnek Johal's telephones. Many of these are for a few seconds only, but they occur in sequences of several calls made immediately after each other, suggesting desperate attempts to contact a number that is engaged or not answering. Both Johal brothers' telephones show such a sequence just after 9 am, when the incident at the shop was in progress, which could therefore be explained by concerns about the alleged assault. There are other such sequences however during the afternoon and well into the night which plainly cannot be. I am satisfied that Mr Surbjit Johal's apparent lack of concern in relation to anything other than an assault was affected.
60. Mr Surbjit Johal maintained that Gurbir Singh had helped out by going out on his former round for a few days after 10 November, up until the 18th or 19th. These dates were somewhat beyond the last date given in the witness statements, ie 15 November. During that period he had not been paid by Johal or employed by them, and had not asked for any payment. After 19 November Gurbir would pop in sometimes to the depot, during which time he would complain about the fact that JND had reported him as an illegal immigrant, but nothing else in particular was discussed. At one point he said that this would happen two or three times a week, but later when pressed said that he had seen Gurbir only about half a dozen times in total in between 19 November and 10 January 2009, when Gurbir left for India.
61. When taken through the phone records, however, Mr Surbjit Johal was obliged to accept that his contact with Gurbir Singh after 10 November was much greater than this. Up to and including 30 November, there are a very considerable number of calls shown from his phone to Gurbir's number. Often, the first of these calls is at a very early hour in the morning, 3 am or earlier. These he said were to check whether Gurbir was on his way to the depot, obviously for the purpose of sending him out on the round that day. The last such very early call is on Friday 28 November, so at least until that day, three working weeks after he commenced, Gurbir was going out on rounds for the first defendant, apparently without any payment or reward.
62. Other calls were during the working day, which Mr Johal explained as being calls to discuss customers or potential customers, particularly prices and discounts that Gurbir needed authority to offer to customers, for example where JND had been back to a customer and offer to match prices quoted by Johal. Other calls took place in the late afternoon or evening, or long after any date on which Mr Johal suggested that Gurbir Singh was continuing to go out on the rounds. For such calls, this explanation is less obviously plausible. It in any event does not fit easily with the evidence of Gurnek Johal and Mr Steve Goodwin that any negotiation in relation to prices was done by Mr Goodwin and not by Gurbir Singh.
63. Mr Surbjit Johal was questioned closely about 27 November, the day on which the claimant's application for an interim injunction was personally served on himself and Gurbir Singh at the Johal depot. He gave an account of them each receiving a large bundle of papers, but maintained that they had had very little discussion about these, or about what was being alleged. He initially appeared to suggest that they did not discuss the matter at all, but then accepted that he asked Gurbir whether it was true that he had taken any invoices, and Gurbir had denied that he had. He said that his main reaction was surprise that his competitor had sent him all the invoices that the bundle contained. There was nothing however that he needed to discuss with Gurbir about the allegations. He said that prior to the 27^th, he had not taken any allegations against Johal seriously. He maintained that he could not recall having seen or discussed a letter before action, which was accepted to have been received at Johal's premises the day before, 26 November. That letter contained serious allegations, and it is simply not possible to believe that the directors of the company would not have discussed it immediately on receipt, or that having received it and knowing that serious allegations were made against his company, Mr Surbjit Johal would not have had anything substantial to discuss about it with Gurbir when court documents were served the next day. I found his account of this episode highly unconvincing.

Mr Gurnek Johal

64. Mr Gurnek Johal's evidence was that he had not spoken to Gurbir Singh at all prior to 10 November 2008. On that day, he had been at work since about 7 or 8 pm the previous evening, leaving about 1:30 am. He then went home and returned sometime between 9:00 and about 10:30 am. Surbjit had first mentioned Gurnek to him that morning in a telephone call, he thought about 3 or 4 am, when he had been told that Gurbir had had a spat with JN Dairies and was leaving them. His brother had asked him to telephone Gurbir to find out where he was, because Gurbir was not answering calls from his own phone. He had subsequently been rung at about 9 am to be told that was an altercation in Manchester, and had then made a number of attempts to contact Gurbir himself. His brother had not told him what the altercation was about, other than that it involved Arshad Khan, Mr Maur and Mr Sangha. However, he said the reason for his own calls to Gurbir was that he wanted to find out what had happened. As to other calls later that day and on subsequent days, he said that he had wanted to know what had happened at the police station when he spoke to Gurbir in the afternoon, but he was very vague about what he might have spoken to Gurbir about after that. He thought it might have been to do with pricing, but was not really sure. He said that it was he who mostly dealt with customers rather than his brother, although of course his brother had given the reason for his numerous calls to Gurbir as being discussion of customers and pricing.
65. Mr Gurnek Johal said that he could not recall receiving the letter before action on 26 November either, although he thought that they had faxed it to their solicitors. He had been telephoned by Surbjit when the injunction application was served the following day, but Surbjit had only told him that JN Dairies had sent a bundle of their invoices. Asked whether his brother had not made any mention of the allegations against them, he said that he must have mentioned something, but had a lot of conversations with his brother and could not remember them all.
66. This was not, in my judgement, a satisfactory or plausible explanation of the very large number of phone calls made from Gurnek's telephone to Gurbir Singh's number on and after 10 November 2008. In particular, his account of leaving the dairy at about 1.30, being told by Surbjit at about 3 am that Gurbir would be going to them, and then being asked to ring Gurbir shortly after 4 am does not to my mind account fully for the phone records. Those show that he made a one second phone call to Surbjit's number at 1:43 am, a two second phone call to the land line number of the dairy at exactly 2 am (nothing was put to him about the coincidence of this phone call with the time at which Gurbir went into the JND depot) and a four second call to Surbjit at 2:14 am, with Surbjit apparently returning the call at 2:18 am for 24 seconds. Surbjit telephoned him again, for one minute 59 seconds, at 3:02 am, which would be consistent with his evidence that he had just been rung by Gurbir at that time. Surbjit made two attempts to telephone Gurbir's number at 4:02 am, followed by a call of one minute 43 seconds to Gurnek's number at 4:03 am. Gurnek himself made two calls to his voice mailbox at 4:08 am, followed by two attempts to contact Gurbir at 4:09 am, and a call of 59 seconds to Surbjit immediately thereafter. This is of course consistent with Surbjit asking Gurnek to make phone calls to Gurbir, but no explanation was suggested as to why would have been thought that, if Surbjit was unable to get through on his telephone, Gurnek would be any more successful, or why it would be reasonable to wake Gurnek at 4 am to make such calls, if he had had nothing previously to do with Gurbir coming to work for Johal.
67. As with his brother, Mr Gurnek Johal's evidence that he could not recall the letter before action and his apparently complacent attitude to the serious allegations being made against their company did not strike me as plausible.

Were the invoices passed to or used by Johal?

68. The claimant led other evidence designed to support its contention that the invoices were actually passed to, and used by, the first defendant. The first defendant in turn called number of witnesses to support the denial of its directors that they ever had these invoices other than as a result of disclosure in this case.

Mr Sukhpal Singh

69. Three of the claimant's witnesses gave evidence as to alleged confessions by Gurbir Singh after the events of 10 November 2008. Mr Sukhpal Singh is one of the claimant's own delivery drivers, working on a route in the Leicester area. His evidence was that he had for some time been friends with Gurbir Singh and remained in touch with him after Gurbir had left JND. As far as he was aware, Gurbir had remained working for Johal in the Manchester area until early December and then in about the second week of December Gurbir began working for Johal on one of their rounds in Leicester. He had seen Gurbir frequently driving a Johal van, and the two of them had often met up after work to go for a drink. During these meetings Gurbir had told him of his resentment that proceedings had been issued against him personally, because Johal had paid him to take the invoices and he had only done it to earn some quick money from them. Gurbir had also told him that he had been recommended by Mr Surbjit Johal to go back to India, and on 29 December 2008 he (Sukhpal) had gone with Gurbir to a travel agent in Wolverhampton to buy his plane ticket.
70. The most remarkable part of his evidence was that on the way to buy the ticket Gurbir had stopped at the Johal dairy to see Mr Surbjit Johal. Mr Johal had come up to the window of the car with Gurbir Singh and Sukhpal Singh sitting inside it and handed over a large amount of cash to Gurbir, saying that it was the money to buy the plane ticket and for some spending money in India and that he or Gurnek would meet Gurbir in India to sort everything out.
71. In cross-examination, Mr Sukhpal Singh gave a faltering performance. He first said that his last meeting with Gurbir Singh was on 29 February, which he initially repeated but then corrected to 29 January. A few questions later he used the date which was in his witness statement, 29 December. As to when Gurbir Singh had started working in Leicester, he said that was a few days earlier, the 25^th or 26^th, although those would be unusual days to start a new job, and did not correspond with what he had said in his witness statement, namely the second week in December. Even if the first defendant had agreed to pay for Gurbir's travel to India, it would be somewhat surprising for Mr Johal to hand over cash in a carrier bag in the presence of an unknown witness.
72. There was no other evidence to support that given by Mr Sukhpal Singh. I observe (no point about this was made by counsel) that there is nothing in the telephone records to show any calls from either Surbjit or Gurnek Johal's telephone to Gurbir's number on 29 December, nor for several days before that, such as there might have been if an arrangement was being made to collect cash and buy a plane ticket. It is not of course impossible that an arrangement was made in some other way, eg by Gurbir telephoning one of the Johals. In the end however, the view I came to in respect of Mr Sukhpal Singh's evidence in the light of these reservations was that while they were not sufficient for me to reject his evidence outright as being untruthful, I should not place any weight on it in reaching my conclusions of fact. It is not necessary for me to do so, as there is quite sufficient other evidence in this case.

Mr Bahadur Sangha and Mr Balkar Varaich

73. The two other witnesses for the claimant to whom Gurbir Singh is said to have confessed were Mr Bahadur Sangha and Mr Balkar Varaich. They travelled to India to attend a Kabaddi tournament in January 2009 and met Gurbir Singh there on two occasions. They came forward after Gurbir Singh made a statement in the form of his affidavit sent from India alleging that in the course of these visits and other telephone conversations, they had offered Gurbir Singh a bribe to make a statement favourable to the claimant, and threatened him if he did not do so.
74. Mr Bahadur Sangha's evidence was that, like Mr Jaspal Nijjar he is a promoter of Kabaddi tournaments and he has known both Mr Nijjar and Gurbir Singh for several years through this connection. He was good friends with Gurbir and up to about the middle of December 2008 met him frequently, at one or other of their houses or with friends. Gurbir had admitted to him on a number of occasions after 10 November that he had taken the JND invoices and given them to Mr Surbjit Johal, and that he had been paid £40,000 by Mr Johal to do this job.
75. A famous Kabaddi tournament is organised in the Punjab in January of each year, put on by Canadian promoters. Those promoters came to the UK in January 2009 and extended personal invitations to Mr Bahadur Sangha, Mr Varaich and Mr Jaspal Nijjar to attend the tournament. He and Mr Varaich agreed, but although Mr Nijjar initially wanted to go, in the end he was unable to do so because of this litigation. They knew that Gurbir Singh was likely to attend the same tournament, and Mr Nijjar had asked him to serve various documents relating to the case on Gurbir, and also ask him whether he would be prepared to make a statement admitting what had been done. He was provided with a draft statement, prepared by the claimant's solicitors, which he agreed to take. Contrary to what Gurbir Singh says in his affidavit, Mr Sangha denied having any telephone conversation with Gurbir before travelling to India. He left on 25 January, and met Gurbir at the tournament on 27 January 2009. They had a friendly discussion and were invited by Gurbir to visit him in his home village near Amritsar the following day. There they met Gurbir and his father, ate and drank with them and handed over the papers they had been asked to give Gurbir. They discussed the case, and Gurbir again admitted that he had taken the invoices and been paid £40,000 to do so. He did not deny Mr Sangha's suggestion that Surbjit Johal had sent him to India to get him out of the way while the court case was on. Gurbir had said he was still being paid in cash, and that the Johals had promised to come to his wedding and invite a famous singer to attend, and to sponsor his return to the UK in due course.
76. Mr Sangha denied that there had been any heated conversation, let alone threats, and further denied that he had offered Gurbir any money or made any mysterious remark about insurance such as Gurbir had alleged. They had given the draft statement to Gurbir for him to consider, and he said he would think about it. A few days later, they had been asked by Mr Nijjar to take some further documents to Gurbir, so they went back to his village and saw him again on 6 February 2009. Apart from delivering the documents, they had not discussed the case any further.

Mr Balkar Varaich

77. Mr Varaich's evidence was to similar effect. Although both were cross-examined intensely by Mr Lord, my assessment of them was that they were not shaken on any material point. There were occasions when they did not appear to be responding directly to the questions asked, but in my judgement this was in most cases more likely to be due to a loss of nuance in the translation of the questions. I did not get the impression that either witness was seeking to be evasive. The first defendant of course has no direct witness evidence by way of opposition. They do however rely on the affidavit sworn in India and sent by fax by Gurbir Singh, making allegations of threats and bribery to which I refer. Mr Lord also criticised the attempt by the claimant to get Gurbir to sign a statement in its favour. The draft statement was attached to Mr Sangha's witness statement however and in my judgement there was nothing improper at all in the form of that document, which is clearly prepared as a draft, and contains questions and square bracketed wording designed perfectly properly to elicit the evidence the witness is prepared to give, rather than to put words in his mouth.
78. Given my findings as to Gurbir Singh's dishonesty in taking part in the theft of invoices, and his absence from the trial, in my judgement it would not be appropriate to place any degree of weight on the affidavit he has filed. I accept the evidence given by Mr Sangha and Mr Varaich.

Claimant's customers; Johal employees and customers

79. Each side produced a number of witnesses to testify directly as to whether the invoices had or had not been in possession of the first defendant. The claimant's witnesses are a number of customers who gave evidence that they had been approached by representatives of the first defendant, principally the two Johal brothers, who either told them directly that they had seen copies of their previous JND invoices or gave them information that could only have come from such invoices. Mr Surbjit and Mr Gurnek Johal denied all of this evidence are far as concerned their own involvement, including denying ever having met or spoken to several of the claimant's witnesses. The first defendant's own witnesses included a number of members of its staff who, it was said, would have expected to have been aware of such invoices if they had existed, but had never seen or been told about them.
80. Several of the last group of witnesses were not required to be cross-examined, Mr Flynn accepted their evidence as set out in their witness statements. These were:

i) Karen Bowdler, the first defendant's general manager. Her duties include managing client accounts, credit control and health and safety procedures, but also cold calling potential customers. She said that she had no knowledge of the existence of any JND invoices until asked to address the matter in her witness statement. She gave an example of one customer, Mr Bill Dickinson, whom she had cold called in January 2009, succeeding in winning back his business from JND, but without referring to any JND invoices. Mr Dickinson himself filed a witness statement confirming that part of Miss Bowdler's evidence, which also was not challenged.

ii) Mr Alan Wadhams, a sales representative. His duties include driving around the areas to which Johal delivers, identifying potential customers such as convenience stores that did not already purchase from Johal, and approaching them to see if they would place any business with Johal. In October and November 2008 he approached two such stores, JN Food Stores and a NISA shop in Wednesfield, providing them with Johal's prices but not discussing JND's prices. He obtained part of their business, but they continued to deal with JND for other items. He also was not aware of any JND invoices within the Johal organisation until asked to prepare his witness statement.

iii) Kulwinder Kaur Dhillon, a receptionist, whose work includes taking enquiries from visitors and over the phone, including prospective customers. She attached a number of notes of prospective customers who identified themselves as currently being supplied by JND. She said nothing about any knowledge of JND invoices and her evidence does not take the matter any further.

Mr Stephen Goodwin

81. Mr Stephen Goodwin filed a witness statement and gave oral evidence. He is a supervisor working for the first defendant since October 2008. On 11 November 2008 Mr Gurnek Johal had asked him to make deliveries to various places in the Manchester area, and to visit some shops and businesses in that area that were not existing customers of Johal, with a view to obtaining their business. He was asked to take Gurbir Singh with him, to direct him to the customers to whom he had delivered the previous day and point out other shops and outlets who might be approached. He did not appreciate that Gurbir had previously worked for JND, or that the shops he was going to were previously JND customers. They did the same thing on the following three days, taking orders at a small number of shops. He personally, rather than Gurbir, spoke to the customers. Gurbir's only role appears to have been to identify the shops, and carry bread and milk into some of them. Gurbir entered into casual conversation with the shop owners, but did not play any part in negotiating. Mr Goodwin's evidence was that having Gurbir with him did not give any special advantage in securing the custom that they obtained. I observe that this appears to contradict other evidence on the part of the first defendant that they knew the potential customers in their areas in any event, but wished to make use of Gurbir's personal relationship with the shopkeepers to obtain business.
82. Examined in chief by Mr Lord, Mr Goodwin said that he was not aware of any allegation that Johal had paid Gurbir Singh to steal invoices, and had not seen any JND invoices himself at all. He had been told by Mr Gurnek Johal what prices to offer the customers, and had not been given any authority to negotiate on those prices. In this respect, his oral evidence appeared to contradict his witness statement which said that he had been given such authority, and also the evidence of Mr Gurnek Johal that he had given Mr Goodwin indicative prices and then left it up to him to negotiate. Mr Goodwin was firm however that he had not done any negotiation. He could not recall what prices he had been told to offer, nor explain why it was that the customers whose business he had won were not all paying the same price, some being and some being lower than the rates that Mr Gurnek Johal had said he had given to Mr Goodwin. I accept Mr Goodwin gave his evidence honestly, though this drives me to the conclusion that Mr Gurnek Johal cannot have been correct when he said that he had given Mr Goodwin a single price to offer all the customers. This of course suggests that Mr Gurnek Johal must have had some basis for deciding how to determine the different prices that were offered to different JND customers.
83. I accept that the particular employees of Johal who gave evidence had not themselves seen or heard of any JND invoices. This of course may mean no more than that if the invoices were in Johal's possession, knowledge of them was kept within a close circle.
84. The claimant filed witness statements from seven customers, each of whom testified that they had been approached by Johal using information that could only have come from their JND invoices. Two of these, Mr Ranjit Singh and Miss Zaida Shah did not attend court to give evidence, and accordingly I do not place any weight on the statements that they had made. I should also say that I do not take any account of the hints that each side dropped as to the reasons why they may not have attended.

Mr Javed Khan

85. Mr Javed Iqbal Khan owns a business called JK Dairies in Manchester, which itself purchases milk from larger distributors including JND and sells it on to smaller customers. In the weeks prior to 10 December 2008, his regular delivery driver had been Gurbir Singh, but in the week before 10 November, Gurbir had told him that he would be moving to a new dairy company and would be able to get him cheap milk if he transferred his business. Gurbir had arrived on 10 November 2008, and offered him cheaper milk, with 4 weeks supply free if he transferred his custom. He took some free milk that day but changed his mind later and did not switch his business to Johal. Gurbir did not call again after that, and he did not think about it further until on 19 February 2009, he was approached by Mr Rajinder Nijjar, who owns and manages another dairy company, Freshways Dairies. Mr Rajinder Nijjar and his two sons who run that company are relatives of the Johals, but no relation to Mr Jaspal Nijjar of the claimant.
86. Mr Khan's evidence was that Mr Rajinder Nijjar had told him that he knew that he was presently paying £1.34 for milk to the claimant, and was prepared to supply him more cheaply. He had asked Mr Nijjar how he knew this, and Mr Nijjar said that Jitty had told him the prices. Jitty had told him that some solicitors had sent him a bundle of all JN Dairies' customer invoices and that he was now going through them to identify JN Dairies' customers, but did not recognise the name JK Dairies. Mr Nijjar had told Jitty that this was a business they knew as "Javed's Dairy". Mr Khan had considered that offer but decided not to switch his business to Freshways either. When Mr Rajinder Nijjar gave his evidence he confirmed that there had been a meeting on 19 February, and that he had previously had a conversation with Mr Surbjit Johal in which Mr Johal had told him that he had received JND's invoices from solicitors, was going through them trying to identify JND customers and wanting to know who JK Dairies was, and that he had told him this was Javed's Dairy. To that extent, he confirmed Mr Khan's evidence, although he denied telling Mr Khan that he knew what prices he was paying JND or that Surbjit Johal had told him these prices.
87. A great deal of Mr Khan's cross-examination was taken up with the fact that he brought to court two sheets of paper which he said he had been given by customers of his, one with Johal's name and one with Freshways' name on, apparently quoting the same very low prices for goods, which he said the customers had used to try and renegotiate his own prices. Witnesses from the first defendant hotly denied any responsibility for these documents, saying that they were forgeries. Mr Rajinder Nijjar denied that his business had produced any such document. In the end, that was a matter which could not be bottomed out in the course of this trial and did not assist me. If the documents were not genuine, there is no evidence as to who produced them or for what purpose. If they were genuine, they show no more than that there may be a degree of acting in concert between Freshways and Johal, but not that it has anything to do with the claimant's invoices. I accept Mr Khan's evidence that he received them from his customers as he said, and he had no knowledge of them other than that.
88. Mr Lord also cast doubt on Mr Khan's evidence because Mr Sukhvinder Sandhu, the first defendant's driver on 10 November who gave evidence for the claimant said that they had not been to JK Dairies on that morning. My impression of Mr Khan's evidence however was that it was given honestly, and I accept it. Insofar as it differs from that of Mr Sukhpal Singh, the explanation is likely to be that Mr Sukhpal Singh, who said that he did not know Mr Khan or his business, has forgotten the details of all the premises visited on that day. So far as Mr Rajinder Nijjar's evidence is concerned, in this respect my view was that he was being careful not to concede matters which he knew to be central to the case and adverse to the defendant, and I prefer Mr Khan's evidence of the conversation between the two of them.

Mr Balbir Bhandal

89. Mr Balbir Singh Bhandal owns a shop called R & B Store in Willenhall, and is a customer of the claimant. His evidence was that on a date in mid-November 2008 (he was not sure but thought it may have been the 20th) he was approached in his shop by Gurnek Johal. He did not know Mr Johal and had not seen him before. Mr Johal produced a JND invoice with his current prices on, and told Mr Bhandal that Johal could beat those prices and would offer him three months free milk as a bonus. Mr Bhandal "thought this approach by Mr Johal seemed a little dodgy as I did not know where he had got hold of one of my invoices and the fact that I would get free milk for the next three months." He asked for it to be put in writing, but instead Mr Johal rang his brother Surbjit, told him that Mr Bhandal was reluctant to take the offer, and Surbjit Johal urged him to do so as JND would not be able to beat it. "Referring to Jaspal Singh Nijjar, Surbjit kept on saying 'Singh finished, Singh finished, come to us'."
90. Mr Gurnek Johal denied that he had ever been to see Mr Bhandal, and gave evidence that at the time of the alleged meeting, he was walking using crutches, having had an operation on his knee on 13 November. It appears that he was discharged from hospital on that day without crutches, but the next day he returned to the hospital and was provided with crutches by a physiotherapist because of discomfort while walking. He said that he used the crutches until about the end of November. In cross-examination he said that he was told that would be a minimum of two weeks before he could drive, and that he had been limping heavily until the beginning of December. He produced a letter from his surgeon, who confirmed the operation and the advice not to drive for two weeks, but said that following the operation as a result of "increased pain" Mr Johal had returned and been advised by a doctor to use elbow crutches. He did not say when this was.
91. Mr Lord suggested that Mr Bhandal was lying, and that there could have been no visit on the dates mentioned. Mr Bhandal could not recall Mr Johal being on crutches. Mr Flynn in turn suggested that Mr Johal was exaggerating when he said that he could not walk without using crutches at all times. My impression of Mr Bhandal was that he was an honest witness. I do not accept the suggestion that he was inventing his evidence to suit the claimant in return for a discount on his prices. I accept the evidence he gave. Insofar as Mr Gurnek Johal was not using crutches on the occasion he visited Mr Bhandal's shop, I am satisfied that the explanation must be that, contrary to his evidence, he did not require to use crutches at all times and was not doing so on that occasion.

Mr Kamaldeep Dhesi

92. Mr Kamaldeep Singh Dhesi is the owner of a shop called Dhesi Mini Market, and a customer of the claimant. His written evidence was that on 2 December 2008 at about 4 pm he was visited at the store by Gurnek Johal who asked if he would like to start buying milk from Johal instead of JND, telling him that he would be prepared to offer a lower price. Mr Dhesi gave Mr Johal what he said were the prices he was paying to JND, but the figures he gave were in fact lower than the true prices. Mr Johal had responded by saying that he knew that Mr Dhesi was paying more than that as he had all of JN Dairies' invoices for all customers on all their rounds. He produced a JND invoice for Mr Dhesi's store and read out the prices that he was currently paying to JND. Mr Dhesi asked him how he had access to this invoice, at which Mr Johal had smiled and replied that that did not matter, the fact was that he could provide milk for a cheaper price than Mr Dhesi was currently paying to JND.
93. Giving his evidence in chief, Mr Dhesi said that he was not sure of the time, but it would have been between about 4 and 6 pm. It was dark at the time. He was asked about this in response to Mr Gurnek Johal's evidence that on the day in question he had been at a meeting at his solicitors office in London, producing a parking receipt showing that he was still in the London area until about 3:15 pm, which would have made it impossible to reach Mr Dhesi's shop by 4 pm. In giving his evidence, Mr Johal went further than that, to say that having left the London area he went to his sister's house where he sent some faxes to his solicitors, but he did not produce any further documentary evidence to support that. Mr Johal denied ever having seen Mr Dhesi before the start of the hearing.
94. Again, Mr Dhesi struck me as an honest witness doing his best to recall matters and being as accurate as he could about the time. His initial estimate of 4pm must have been somewhat wrong, but I accept his evidence that Mr Gurnek Johal did visit his shop in the early evening on that date, and I accept his account of that conversation.

Mr Narinder Johal

95. Mr Narinder Singh Johal (no relation to Surbjit or Gurnek Johal) owns a Costcutter store in Lichfield and is a customer of the claimant. In his witness statement he said that on 19 and January 2009 he was visited at the store by a man who called himself "Laddi" and said he was a sales rep from Johal Dairies. Laddi told him that Johal was prepared to offer better prices than JN Dairies, and that he knew what prices were being paid to JN Dairies because he had checked them on an invoice before he came in. He said that JN Dairies would be "wiped out" by the summer. Mr Johal had had previous visits from Gurnek Johal who had tried to win business and also said that JN Dairies would be "wiped out" in so many weeks or months, and so he took this with a pinch of salt. Mr Narinder Johal was also was accused of lying. It was put to him that Johal Dairies does not employ anyone called "Laddi" but in fact it was apparent from the evidence of the Johal brothers that someone of that name does or has worked for them in some capacity. Mr Gurnek Johal said that Laddi could only speak Punjabi and so cannot have had the conversation that Mr Narinder Johal alleged in English. I did not get the impression that Mr Narinder Johal was lying and I accept his evidence.

Mr Baldev Deol

96. Mr Baldev Singh Deol owns a convenience store and is a customer of the claimant, having transferred his business from the first defendant about two years ago. He made a witness statement dated 12 February 2009 saying that a few days previously he had been telephoned by Surbjit Johal, whom he knew from his previous dealings, saying that he had a list of the prices that Mr Deol was currently paying JND, and offering him lower prices. He also said that JND and Johal were involved in a court case which JND was going to lose and which would finish them off. They would end up having to pay Johal £400,000 or £500,000 which would put them out of business. Mr Deol would have to transfer its business then, but would get better prices if he did so straight away. Surbjit correctly read out the prices he was presently paying, saying that he had a copy of this invoice in front of him.
97. I was quite satisfied that Mr Deol was an honest witness. He said that the had explained to Manrupe Singh what had happened, and that Manrupe had prepared the statement for him, which he had checked before he signed it. His son is a computer engineer and he had translated it for him before he signed. There was some confusion about whether he had been provided with a Punjabi version of this statement before or after he had signed it in English; Mr Deol thought that he had been given this before signing the English version, but in fact it was apparent from other evidence that the Punjabi version had been provided afterwards. Nevertheless Mr Deol was quite clear that his son had read over the English statement to him translated into Punjabi and that he was happy with the contents of it. Interestingly, in response to Mr Lord's questions, Mr Deol also said that he had been visited by "Laddi" who had given him the same message, namely that as a result of the court case JND would be finished and he should transfer its business straight away.

Findings of fact

98. The totality of this evidence in my judgement is sufficient to show a coherent picture and enable me to make the following findings of fact. I have refrained from doing so until this point in this judgement because some of these findings rely on inferences and I have had regard to all of the evidence and the overall picture it has allowed me to build up in drawing these inferences.

i) The figure who entered the claimant's premises at about 2 am on 10 November 2008 was the second defendant, Gurbir Singh.

ii) While there, the second defendant stole all the invoices that the claimant had put out for its drivers to deliver that morning, that is to say invoices to all of its customers on all of its rounds.

iii) The second defendant then went to the first defendant's premises and gave these invoices to Mr Surbjit Johal on behalf of the first defendant. He then went off with one of the first defendant's drivers, Mr Sukhvinder Sandhu, well before 4 am, in an attempt to win over his old customers to the first defendant. He did not use the invoices himself on that occasion. When confronted by Mr Arshad Khan, Mr Maur and Mr Kulbir Sangha the second defendant told them, as was the fact, that he had given the invoices to Mr Surbjit Johal.

iv) The second defendant and Mr Surbjit Johal had prearranged both the theft of the invoices and that the second defendant would go out on his round on behalf of the first defendant. This arrangement had been made in the course of the previous week during the telephone calls that were shown to have been made from the telephones of Mr Surbjit Johal and Mr Gurnek Johal to the second defendant and, probably, other phone calls by the second defendant and/or meetings of which there is no record. The second defendant told various customers in advance that he would shortly be moving to the first defendant. Mr Surbjit Johal told Mr Sandhu in advance that he would be going out on the round with the second defendant so that on that morning he did not do his normal work but waited for the second defendant to arrive, when they set off in a preloaded van.

v) I reject the first defendant's evidence that no start date been agreed until a telephone call at about 3 am on 10 November. Having found on the basis of direct evidence that there was a prearrangement for the second defendant to start work at the first defendant on 10 November, and that he stole the claimant's invoices on the way to doing so, the inference is irresistible that the theft was also part of the prearranged plan.

vi) The second defendant continued to work for the first defendant, going out on various rounds for it, until at least 28 November 2008. I reject the suggestion that he was doing so as an unpaid volunteer.

vii) The second defendant was rewarded by the first defendant for his part in this scheme in the manner that he admitted to Mr Bahadur Sangha and Mr Varaich, in particular by payment of £40,000 and his cost of travel to India. He may well have received or been promised additional benefits.

viii) The first defendant has made use of the invoices and/or the information in them for the purpose of approaching and negotiating with various customers of the claimant, specifically those who gave evidence on the claimant's behalf but, in all probability, including others who have not done so.

Legal issues

99. I come on to the legal issue raised by the first defendant as to whether the information contained in the invoices is sufficiently confidential to be protected by law. There were two main aspects to that argument, the first being that the information was not in itself confidential in a commercial sense or of any value, because the market was transparent in that competitors in the industry had a good idea of what prices others were charging since they were all buying from the same major wholesale suppliers and could estimate reasonably accurately what markup the others would be charging, and/or that the prices charged to any particular customer could be easily ascertained in any event simply by asking the customer. The second aspect was based on a submission that information of the kind contained in the invoices fell within the second of the three categories analysed in Faccenda Chicken v Fowler^[3], namely information which an employee must treat as confidential while employed but which once learned remains in the employee's head and becomes part of his own skill and knowledge, which he cannot be restrained from using after his employment ends.
100. So far as the first aspect is concerned, it is plain on the evidence in my judgement that the information contained in the invoices was of considerable commercial value. If the claimant and first defendant are agreed about anything, it is that there is intense competition between them, and that each of them approaches and attempts to win business from the customers of the other. Price is not the sole factor, but it is an important consideration for many customers. If a customer is offered a lower price by a rival supplier, even if he does not switch his business he may use that offer to negotiate lower prices with his existing supplier. Contrary to the first defendant's submissions, it is clear from the documentary and witness evidence that there is a substantial range in the prices charged to different customers in an area, so that it would not be possible to go to all such customers offering a single price and expect to undercut the existing supplier. Any attempt to do so may well result in the price offered being too high in some cases, and unnecessarily low in others.
101. Both the claimant and the first defendant in fact treat the information in their invoices as confidential and take measures to prevent it becoming generally known. In the claimant's case, these consisted of keeping the invoices secure within its offices, and only putting them out on the racks for the drivers shortly before they were due to be collected. The first defendant's witnesses criticised these as inadequate, and said that they took greater measures to protect the confidentiality of their own invoices. Although their pleaded case was that the information in the invoices was not confidential, both Mr Surbjit and Mr Gurnek Johal admitted that a dairy losing all of its invoices would suffer commercial damage at the hands of a competitor obtaining them, and also that customers of the dairy would be concerned if information about the prices they were paying became known.
102. It was submitted on the half of the first defendant that no competitive advantage was obtained by knowledge of another supplier's prices, because the customers would freely disclose what prices they were paying if asked. That suggestion however could not in my judgement survive the evidence of Mr Gurnek Johal, a number of customers and of Mr Rajinder Nijjar that it was commonplace for customers if asked to say that they were paying prices lower than they actually were, to see whether they would be offered prices lower still. There is an obvious advantage in knowing whether the customer is telling the truth or simply adopting a negotiating position.
103. It is not part of the preliminary issue to determine what loss has been suffered, or the financial value of the information that has been taken. The commercial importance attached to acquiring such information by whatever means is however illustrated by the evidence, which I have accepted, that Gurbir Singh was paid £40,000 and given other benefits to do what he did. It was reinforced indirectly by evidence of another case involving Freshways dairies, which of course is run by Mr Rajinder Nijjar and his sons, close relatives of the Johal brothers, and which it is clear from the evidence has a close personal and business connection with the first defendant. In that case, it was admitted in evidence that Freshways had suborned a person who had access to the computer system of a rival dairy to provide similar information from the computer records about the names and identities of customers, the orders they placed and the prices they paid. That action was settled on terms which included the payment of £2 million by Freshways to the dairy concerned. The connection between Freshways and the first defendant is emphasised by the facts that Mr Surbjit Johal procured the giving of a guarantee on behalf of the first defendant for £1 million of this amount, and that the first defendant now employs the individual concerned in the management of its own IT department.
104. So far as the categorisation of information as between trade secrets and other confidential information is concerned, and the extent to which an employer may protect the use of certain kinds of confidential information by former employees is concerned, in my judgement Mr Flynn is right to submit that the cases referred to dealing with the enforcement of express covenants and the obligations to be implied into employment contracts have little relevance to the circumstances of this case. They each deal with information which has become known to, and remembered by, an employee in the course of performing his duties, and the extent to which he may make use of that as part of his general knowledge skill and expertise when the trading on his own account or working for another employer. That is not the case here; there is no suggestion that Gurbir Singh had memorised the information contained in the invoices, although no doubt he would have been able to recall from memory some of it at least so far as it related to the customers on his particular round. That information would have been of no significant use in relation to other customers, or it would not have been necessary to steal the invoices. These cases are not in my judgement to be read as authorities for a proposition that the use of documents unlawfully obtained may not be actionable unless the content of those documents satisfies an equally stringent test of confidentiality or potential to cause commercial harm.
105. This limitation is apparent from the cases themselves; in Faccenda Chicken itself Neill LJ giving the judgement of the court stated number of principles applicable to cases between an employer and an employee or former employee^[4], differentiating between the more extensive duty of good faith which applied whilst the employment contract subsisted and the less extensive implied terms relating to conduct after the end of the employment. In the course of so doing he said this:

" the duty of good faith will be broken if an employee makes or copies a list of the customers of the employer for use after his employment ends or deliberately memorises such a list even though, except in special circumstances, there is no general restriction on an ex-employee canvassing or doing business with customers of his former employer "

106. He also cited with approval from the judgement of Cross J in Printers & Finishers Ltd v Holloway the following passage:

"for example, the printing instructions were handed to Holloway to be used by him during his employment exclusively for the plaintiff's benefit. It would have been a breach of duty on his part to divulge any of the contents to a stranger while he was employed, but many of these instructions are not really "trade secrets" at all. Holloway was not, indeed, entitled to take a copy of the instructions away with him; but insofar as the instructions cannot be called "trade secrets" and he carried them in his head, he is entitled to use them for his own benefit or the benefit of any future employer."

107. The fact that the law in this area is strongly based the desirability of protecting the ability of an individual employee to pursue his trade was also evident from the following passage restricting the scope of the principles he had set out, even in relation to information which has properly been learned in the course of employment^[5]:

"we would wish to leave open, however, for further examination on some other occasion the question whether additional protection should be afforded to an employer where the former employee is not seeking to earn his living by making use of the body of skill, knowledge and experience which he has acquired in the course of his career, but is merely selling to a third party information which he acquired in confidence in the course of his former employment."

108. The seminal case of Herbert Morris Ltd v Saxelby^[6] in setting out the limits of enforceability of restrictive covenants against employees clearly distinguished between information that had become part of the employee's memory and experience, and that which was so detailed that it could only be made use of by copying or taking away the documents it was contained in^[7].
109. Still less in my judgement are these cases appropriate where the information was not even acquired initially in a legitimate manner. Perhaps not surprisingly, I was not referred by either counsel to any case seeking to deal with the circumstances in which information illegitimately acquired might nevertheless be used by the acquirer. It may be thought to be perfectly obvious that a thief should not be entitled to make use of information he has stolen, and should not be permitted to argue that the information was insufficiently confidential in the first place. However it is necessary to analyse the facts of this case in terms of the protection afforded by equity to confidential information, by reason of the way in which the claimant's case is pleaded. Particularly, it is not part of the claimant's pleaded case that the first defendant procured the second defendant to steal the invoices, although I have found on the facts that it did so. The case against the second defendant is also pleaded in terms of confidential information, rather than simply that it was stolen by him.
110. A more suitable authority to take as a starting point is in my judgment Coco v AN Clark (Engineers) Ltd^[8] in which Megarry J considered the principles underlying the pure equitable jurisdiction to protect breaches of confidence, irrespective of any contract between the parties, which he set out in the following passage:

"Of the various authorities cited to me, I have found Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203; Terrapin Ltd v Builders' Supply Co (Hayes) Ltd [1960] RPC 128 and Seager v Copydex Ltd [1967] 1 WLR 923; [1967] RPC 349 of the most assistance. All are decisions of the Court of Appeal. I think it is quite plain from the Saltman case that the obligation of confidence may exist where, as in this case, there is no contractual relationship between the parties. In cases of contract, the primary question is no doubt that of construing the contract and any terms implied in it. Where there is no contract, however, the question must be one of what it is that suffices to bring the obligation into being; and there is the further question of what amounts to a breach of that obligation.

In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must "have the necessary quality of confidence about it." Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it. I must briefly examine each of these requirements in turn.

First, the information must be of a confidential nature. As Lord Greene said in the Saltman case at page 215, "something which is public property and public knowledge" cannot per se provide any foundation for proceedings for breach of confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge. …

The difficulty comes, as Lord Denning, M.R. pointed out in the Seager case on page 931, when the information used is partly public and partly private; for then the recipient must somehow segregate the two and, although free to use the former, must take no advantage of the communication of the latter. …where confidential information is comunicated in circumstances of confidence the obligation thus created endures, perhaps in a modified form, even after all the information has been published or is ascertainable by the public; for the recipient must not use the communication as a spring-board (see the Seager case, pages 931 and 933). …

The second requirement is that the information must have been communicated in circumstances importing an obligation of confidence. However secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential. From the authorities cited to me, I have not been able to derive any very precise idea of what test is to be applied in determining whether the circumstances import an obligation of confidence. In [Duchess of Argyll v Duke of Argyll [1967] Ch 302] at page 330, Ungoed-Thomas, J. concluded his discussion of the circumstances in which the publication of marital communications should be restrained as being confidential by saying, "If this was a well-developed jurisdiction doubtless there would be guides and tests to aid in exercising it." In the absence of such guides or tests he then in effect concluded that part of the communications there in question would on any reasonable test emerge as confidential. It may be that that hard-worked creature, the reasonable man, may be pressed into service once more; for I do not see why he should not labour in equity as well as at law. It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence. In particular, where information of commercial or industrial value is given on a business-like basis and with some avowed common object in mind, such as a joint venture or the manufacture of articles by one party for the other, I would regard the recipient as carrying a heavy burden if he seeks to repel a contention that he was bound by an obligation of confidence: see the Saltman case at page 216. On that footing, for reasons that will appear, I do not think I need explore this head further. I merely add that I doubt whether equity would intervene unless the circumstances are of sufficient gravity; equity ought no to be invoked merely to protect trivial tittle-tattle, however confidential.

Thirdly, there must be an unauthorised use of the information to the detriment of the person communicating it. Some of the statements of principle in the cases omit any mention of detriment; other include it. At first sight, it seems that detriment ought to be present if equity is to be induced to intervene; but I can conceive of cases where a plaintiff might have substantial motives for seeking the aid of equity and yet suffer nothing which could fairly be called detriment to him, as when the confidential information shows him in a favourable light but gravely injures some relation or friend of his whom he wishes to protect. The point does not arise for decision in this case, for detriment to the plaintiff plainly exists. I need therefore say no more than that although for the purposes of this case I have stated the propositions in the stricter form, I wish to keep open the possibility of the true proposition being that in the wider form."

111. So far as the first element is concerned, in my judgement information such as was contained in the claimant's invoices about the quantities of goods purchased by a particular customer and the prices charged to him is information which possesses the necessary degree of confidentiality. It is plainly not in the public domain; being only ascertainable from the claimant's records, from the knowledge of its employees or of course from the customers themselves. Insofar as known to the claimant's employees, it is information which it would be in breach of their duty of good faith to their employer to disclose.
112. Further, it seems to me that information about the identity of the claimant's customers, at least as collected together in the form of a list, can properly be described as confidential to some degree. No doubt it is information that could be discovered by the application of some effort through legitimate means (for example following the claimant's delivery vehicles), but that is not what has happened here. A list or collection of names of customers is not something that the claimant or anybody in its position would ordinarily make public precisely because of the commercial advantage that competitors can obtain from it by targeting their competitive efforts. The relative ease by which the information could be obtained by legitimate means may no doubt be relevant on issues such as the discretion to be exercised in granting injunctive relief, and also on any question of proof of loss, but it is not in itself a reason for concluding that the information is not to begin with confidential at all. This is the basis of the "springboard" cases in which relief may be granted to prevent the use of information for a period, even if it can be obtained from public sources, to neutralise the commercial advantage gained from its improper acquisition.
113. So far as the second element is concerned, it seems somewhat artificial to refer to the information being "communicated" in circumstances in which it was stolen by the second defendant. It is clear that when he took it he knew that it was the claimant's commercially valuable information, and that he had no right to obtain it or to pass it on to anyone else without the claimant's authority. That is sufficient to impose upon him a duty of confidentiality. On the facts I have found, I am more than satisfied that when the second defendant communicated this information to the first defendant, by passing the entire bundle of invoices to Mr Surbjit Johal, the first defendant through him knew full well of the confidential nature of the material and the circumstances in which it had been obtained, and that was sufficient to impose the same duty of confidentiality on the first defendant.
114. As for the final element, it is again plain from the facts that I have found that there has been an unauthorised use of this information in the approaches that have been made to the claimant's customers, and that this has been to the detriment of the claimant to some degree at least, in that it has lost business from some of those customers, even if only temporarily in some cases, or been obliged to offer them better terms in order to keep business or win it back. It is sufficient for the purposes of answering the preliminary issue that there should have been some such detriment; the extent of it is a matter to be determined if the case proceeds further.

Conclusion

115. For these reasons, in my judgement the preliminary issue must be decided in favour of the claimant, as against both defendants.
116. I will list a short hearing at which this judgement may be formally handed down. It will then be necessary to give directions for the further conduct of the case. I invite the parties to seek to agree the form of order required to give effect to this judgement, and the content of those directions. If they are unable to do so and substantial argument is required, they should submit a joint time estimate and I will list a further hearing to deal with the matters outstanding.

Note 1   page 85, paragraph 28    [Back]

Note 2   page 131, paragraph 5 ff    [Back]

Note 3   [1987] 1 Ch 117    [Back]

Note 4   At p 135 G    [Back]

Note 5   At p138 H    [Back]

Note 6   [1916] AC 688    [Back]

Note 7   See per Lord Atkinson at p 703    [Back]

Note 8   [1969] RPC 41    [Back]