England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 June 2017

Introduction

1. I shall adopt the same terminology as in the judgment that I handed down on 26 May 2017 ("the Judgment"). Following that hand down, Mr Quinn sought permission to appeal on behalf of Capita. The Defendants did not oppose Mr Quinn being given until 2 June 2017 to set out the proposed Grounds of Appeal in writing, which he did. The Defendants were permitted to lodge written submissions in answer, if so advised, by 7 June 2017. However, they elected not to do so, and chose instead to rely on the contents of the Judgment. This is my ruling on Capita's application for permission to appeal.
2. Capita contends that permission to appeal should be given on both of the grounds set out in CPR 52.3(6), namely (a) that the appeal has a real prospect of success and (b) that there is some other compelling reason why the appeal should be heard. However, the second ground is mainly, if not exclusively, relevant in respect of my ruling on the order for delivery up of emails that was sought by paragraph 3 of the draft Order. This aspect of the Judgment is said by Mr Quinn to "raise points of such importance in the employment dispute area" that there is a compelling reason for the grant of permission.
3. The determination of Capita's application for interim relief, and also my rulings on costs, involved multi-factorial questions, and the exercise of judicial discretion. Accordingly, this is not only a case in which "the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible" (see G v G (Minors: Custody Appeal) [1985] 1 WLR 647, Lord Fraser at 652), but it is also, in my opinion, a case in which Capita may find it particularly hard to make out good grounds for interference.
4. In addition, and subject always (in the case of at least some relief) to the appeal being expedited, it seems to me that the rights and wrongs of my exercise of discretion will be substantially, if not entirely, overtaken by events:

(1) The prohibition contained in paragraph 1 of the draft Order against destroying Listed Items and so forth would still, in principle, be capable of serving some useful purpose. However, if (contrary to my findings) Capita has good grounds for saying that such a negative injunction is appropriate, by the time that any appeal is heard, either the harm will already have been done (such that an injunction would serve no purpose) or else the harm will not have been done in spite of the fact that there is no injunction restraining it (such that it will be hard to explain why an injunction is needed).

(2) The mandatory injunction for delivery up of Listed Items contained in paragraph 2 of the draft Order is largely, if not entirely, concerned with recovery of documents. However, by the time that any appeal is heard, standard disclosure will have taken place and (on the assumption, which may be generous to Capita, that the relief claimed in the Particulars of Claim is wide enough to cover delivery up of documents without any limit as to their time of creation) Capita will have been able to inspect any such documents that the Defendants may have; and even if the Defendants had such documents and Capita had recovered the same pursuant to a mandatory injunction, Capita would have had to make copies available to the Defendants (albeit solely for the purposes of defending Capita's claims), so that the Defendants would have sight of those documents going forward even if an injunction was ordered on an appeal.

(3) The like considerations apply to the emails which form the subject of paragraphs 3 and 4 of the draft Order: by the time any appeal is heard, the Defendants will have disclosed and provided inspection of any such emails; and even if the Defendants had forwarded such emails to Capita pursuant to a mandatory injunction, Capita would have to make copies available to the Defendants for purposes of defending Capita's claims.

(4) In principle, the negative injunction relating to misuse of confidential information that is sought by paragraph 5 of the draft Order could be ordered by the Court of Appeal, but the like considerations apply to this as to the prohibition contained in paragraph 1 of the draft Order against destroying Listed Items.

(5) Finally, all the remaining negative injunctions which are contested by the Defendants expire on dates between 30 June 2017 and 3 August 2017, and, unless the appeal is expedited, these dates will have passed before any appeal is heard.

(6) Accordingly, and as no application for expedition has been intimated, it seems to me that it is likely that in substance the proposed appeal would be about costs.

Paragraph 1 of the draft Order

5. My reasons for declining to order that: "The Defendants are not to destroy, tamper with or (save as set out below) part with possession, custody or control of the Listed Items" are set out in [27]-[31] of the Judgment. According to the draft Grounds of Appeal, Capita wants to argue on appeal that this decision was wrong for the following reasons:

(1) The evidence before me gave rise to serious issues to be tried as to "wide-ranging and protracted wrongdoing on the part of the Defendants" (see Judgment, [18]). This included evidence that Mr Dineen had double-deleted all his work emails upon his departure and that Mr Chalmers and Mr Tailor had forwarded emails containing Capita's confidential information to their personal email addresses, and that Mr Chalmers had then forwarded certain of these emails to Mr Turner. Moreover, the wrongdoing alleged in this case includes a conspiracy, and Archus (which is alleged to have been the vehicle for the conspiracy) admitted that some of Capita's material "had somehow made its way on to one of its computers".

(2) The Defendants had given me no reason to accept them "at their word". Indeed, only Mr Short put in any evidence in response to Capita's allegations, and it is Capita's case that this evidence did not deal with the allegations of conspiracy.

(3) The Order sought was "entirely unobjectionable".

(4) I was wrong to rely on Caterpillar Logistics Services (UK) Ltd v de Crean [2012] EWCA Civ 156, [2012] ICR 981 per Stanley Burnton LJ at [67], because the Court of Appeal in that case was not considering an Order "even remotely of the type being sought here" and/or was not considering a case in which the applicants had established serious issues to be tried which were comparable to those established by Capita in the present case.

(5) At [4]-[10] of the Judgment, I unfairly criticised Capita for the manner in which they brought the application with notice. Having done that, I was wrong to rely upon Capita's failure to apply for relief in terms of paragraph 1 of the draft Order on an urgent, without notice, basis, as a ground for refusing that relief.

(6) I "erred in law in finding that [Capita] had not met the threshold for this part of the application as against all the [Defendants]".

6. In my judgment, all of these points lack validity for the following reasons:

(1) The quote from [18] of the Judgment is correct, and (as appears from [17], [34], [36] and [43]) I had well in mind the evidence relating to Mr Dineen's deletion of emails, the forwarding of emails by Mr Chalmers and Mr Tailor to their personal email addresses, that Mr Chalmers had forwarded an emails or emails to Mr Turner, and that 4 emails had been sent to a computer belonging to Archus.

(2) I did not base my finding that Capita had failed to demonstrate that it would be appropriate to grant an injunction in the terms of paragraph 1 of the draft Order on taking the Defendants "at their word". Rather, I based it on the fact that Capita had failed to establish any actual or threatened destruction, interference with, or disposal of any "Listed Items" on the part of those Defendants who resisted this relief. That was a finding that was open to me on the evidence. See [30]-[31] of the Judgment. An allegation of conspiracy is not necessarily sufficient, in my judgment, to entitle an applicant who is able to establish that one respondent has a propensity to destroy evidence to say that other respondents have or may have a similar propensity. Indeed, if only one individual has deleted work emails while others have not, that tends to suggest that others may have different proclivities.

(3) Whether an injunction is "entirely unobjectionable" is not the correct test. On the contrary, an injunction should not be granted unless there is a proper basis for it.

(4) The proposition that I extracted from Caterpillar Logistics Services (UK) Ltd v de Crean [2012] EWCA Civ 156, [2012] ICR 981 is that an injunction can properly be refused where (as I considered to be true in the present case) an employer has not established any arguable case that a former employee has broken or intends to break or even that there is a real risk that the employee will break the terms of an obligation owed to the employer. That proposition is of general application, and the precise factual context in which it came to be formulated is beside the point.

(5) It is not suggested that any of the points made in [4]-[10] of the Judgment are incorrect. Accordingly, no question of unfair criticism of Capita arises. The fact that Capita did not consider it necessary or appropriate to apply for relief in terms of paragraph 1 of the draft Order without notice to the Defendants (and, for that matter, the time that had elapsed before Capita issued and served the application), are plainly matters that I was entitled to take into account when deciding whether there was a real risk that, unless restrained by injunction, the Defendants threatened or intended to "destroy, tamper with or …part with possession, custody or control of the Listed Items". Where there is genuine concern that respondents may act in this way, an application for an injunction made with notice poses an obvious risk that the very mischief that the injunction is sought to prevent will occur before relief can be obtained, and this is one ground for applying for relief without notice. Conversely, if an application is only made with notice, one obvious inference is that the applicant has no such genuine concern.

(6) My conclusion that Capita had not met the threshold for this part of the application as against those Defendants who resisted this aspect of the relief sought was not "an error of law". On the contrary, it was a finding of fact, and one that was open to me on the evidence, that Capita had not established any arguable case that those Defendants had broken or intended to break or even that there was a real risk that they would break the obligation not to "destroy, tamper with or …part with possession, custody or control of the Listed Items". I consider that Capita has no real prospect of persuading the Court of Appeal to the contrary.

Paragraphs 2 and 3 of the draft Order

7. My reasons for declining the order sought by paragraph 2 of the draft Order that: "By 4pm on [INSERT DATE] the Defendants are to hand over to the Claimants' solicitors any of the Listed Items (including all copies of the same) which are in their possession or under their control by either delivering them to the Claimants' solicitors or as is otherwise agreed with Capita plc's solicitors" are set out in [32]-[52] of the Judgment.
8. My reasons for declining the order sought by paragraph 3 of the draft Order that "By 4 pm on [INSERT DATE] the Defendants are to forward to the Claimants' solicitors copies of all emails that they have received into any non-Capita email account from any email account at Capita (including their own)" are set out in [53]-[74] of the Judgment.
9. According to the draft Grounds of Appeal, Capita wish to argue on appeal that these decisions were wrong for the following reasons:

(1) The finding in [42] of the Judgment that "subject to limited exceptions which I address below, the material at present before me falls short of establishing a serious issue as to whether any of the Defendants who resist interim relief in terms of paragraph 2 of the draft Order in fact have any "Listed Items" to deliver up" was one that it was not open to me to reach in light of (a) the admission by Archus that it was in possession of emails sent to it by Mr Chalmers and (b) the fact that I did not explain why I considered it appropriate to take the Defendants "at their word" as to the full extent of their receipt and/or retention of documents.

(2) The finding in [50] of the Judgment that "Capita would be adequately compensated by an award of damages for the loss Capita would have sustained as a result of each of those Defendants continuing to retain such "Listed Items" as they may, in fact, have in their possession or under their control between the time of the present application and the time of the trial" was one that it was not open to me to reach.

(3) The same applies to the findings at [61(iv)-(vi)] of the Judgment in relation to the emails that formed the subject of paragraph 3 of the draft Order that: "(iv) I consider that damages are likely to be an adequate remedy for Capita, for the like reasons as are discussed above in respect of "Listed Items"; (v) I am not persuaded that Capita need these emails in order to be able to take pragmatic steps to protect their business from future and further loss; and (vi) nor do I consider that these emails are needed to police other aspects of the relief sought by Capita and in some instances agreed either wholly or to some extent by a number of the Defendants – to the extent that Capita obtain other protection either by Court order or by concession it seems to me that is likely to be sufficient to protect Capita's legitimate interests at the present time, and to the extent that Capita is refused other relief there is nothing else to police". In particular, this is so (a) because I "had not actually read the documents in question before reaching that conclusion" as "became clear at the hand-down when the Judge confirmed he had not accessed the USB stick which had been lodged containing the same" or (b) if that is incorrect, because I did not set out in the Judgment any consideration of the documents in question such as would be required for me to have reached the conclusion that damages would be an adequate remedy in respect of the same.

(4) I wrongly concluded that Capita could not establish as a matter of law that the emails which formed the subject of paragraph 3 of the draft Order constituted their property because (a) the emails in question attached reports and/or other documents in respect of which Capita were entitled to assert "full property rights" and (b) none of the authorities referred to in the Judgment in this regard, namely Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886, Khouj v Acropolis Capital Partners Ltd & Anor [2016] EWHC 2120 (Comm), Your Response Limited v Data Team Business Media Limited [2014] EWCA Civ 281 or Environment Agency v Churngold Recycling Ltd [2014] EWCA Civ 909 "go so far as to suggest that an employer is not entitled to recover its former employees' work emails" and "[my] finding to the contrary in the present case must now be reviewed by the Court of Appeal given its potential ramifications generally".

(5) I was wrong to say in [34] of the Judgment that "When the "Confidential" appendix was served, however, it became clear that it related to the activities of Mr Chalmers and Mr Tailor alone" in light of the following facts: (a) Capita has a pleaded conspiracy case and (b) on the materials before me "Mr Chalmers maintained that he had forwarded certain of the emails in question to Mr Turner".

(6) I wrongly relied on what I "considered to be relevant principles derived from Article 8 of the European Convention on Human Rights" when I "had not been addressed on the same" and such considerations "should not have dissuaded [me] from granting the relief which was sought".

(7) I was wrong to find that the Order sought by Capita "would encompass documents/emails which went wider than [Mr Short] could reasonably be expected [to] deliver up" as "Indeed Mr Short had himself agreed to deliver up". Further, in the absence of evidence from the other Defendants, I was wrong to reach a similar finding in their favour. Still further: "The appropriate course was not for the Judge to refuse to make an Order at all but was instead for the Judge to make an Order which contained an appropriate carve-out".

(8) My refusal to order delivery up of 4 emails which Archus, a competitor of Capita, had been forced to admit were present on one of its computers was perverse.

10. In my judgment, none of these points are valid either, for the following reasons:

(1) The finding that Capita had failed to establish a serious issue as to whether any of the Defendants who resisted interim relief in terms of paragraph 2 of the draft Order in fact had any "Listed Items" to deliver up was one that it was open to me to make. In any event, even if Capita had established a serious issue in that regard, that would not have sufficed to make it appropriate to grant the injunction sought: that injunction is mandatory in form, and the draft Grounds of Appeal do not suggest that there is any basis for appeal against my ruling that Capita had not satisfied the test for the grant of a mandatory injunction. There is no substance in the suggestion that the finding that I made is inconsistent with the admission by Archus that it was in possession of emails sent to it by Mr Chalmers. That admission was recognised by my reference to "the limited exceptions which I address below", and I dealt with those emails in detail in [43]-[45] and [50] of the Judgment. There is also no substance in the argument that I did not explain why I considered it appropriate to take the Defendants "at their word" as to the full extent of their receipt and/or retention of documents. As with my findings in relation to paragraph 1 of the draft Order, I did not base my findings in respect of the relief sought by paragraph 2 of the draft Order on what the Defendants had said, but on what Capita had demonstrated or had failed to demonstrate. I considered this at a level of detail that I regard as entirely proportionate to the significance of this dispute to both sides at [46]-[49] of the Judgment, and I see no real prospect that the Court of Appeal would reverse my findings of fact.

(2) The finding in [50] of the Judgment that "Capita would be adequately compensated by an award of damages for the loss Capita would have sustained as a result of each of those Defendants continuing to retain such "Listed Items" as they may, in fact, have in their possession or under their control between the time of the present application and the time of the trial" was a finding which followed from that consideration of the evidence and was one that I was entitled to make.

(3) The findings in [61(iv)-(vi)] of the Judgment in relation to the emails that formed the subject of paragraph 3 of the draft Order were also findings that I was entitled to make. In any event, these findings formed only part of my analysis, and because there is no challenge to other aspects of my findings (for example, that the width of the Order sought is excessive – see [61(ii)]) I do not consider that reversal of these findings would be enough to entitle Capita to succeed on appeal. I am very surprised by the suggestion that my findings under this head should be susceptible to appeal because I had not read the documents which were on the USB stick which had been lodged by Capita with the Court, for a number of reasons. First, these findings were made in respect of the relief sought by paragraph 3 of the draft Order, which related to emails that the Defendants had received. The USB stick can only have contained the contents of those emails in so far as they were accessible to Capita – in so far as Capita could not know what the Defendants had received, Capita could not have placed those missing emails on that USB stick – and I rehearsed Capita's case as to the emails that Capita knew about in some detail (see, for example, [17(2)] of the Judgment). Second, to the best of my recollection, Mr Quinn did not suggest that I ought to read those documents. I made clear that I had not read them in advance of the hearing, because (as far as I could tell) the USB stick had not reached me at that time: it appeared to have been mislaid somewhere in the Rolls Building. As far as I recall, I was not provided with a replacement USB stick during the course of the hearing, and, therefore, at the conclusion of the hearing it must have been the understanding of all concerned that I was not going to read the documents after the hearing had concluded. If I had been asked by one side to read documents after the conclusion of the hearing, I think it likely that I would have been concerned to make sure that this could be done without unfairness to the other side, which, on that hypothesis, would not be able to address me on their contents. In fact, when I was assembling all the papers in readiness for the hand-down of the Judgment, I found a USB stick in a plastic folder in a file of correspondence to which no reference had been made during the course of the hearing, and I told the parties what had happened, in particular so that Capita could retrieve the USB stick. Mr Quinn did not ask me to reconsider my Judgment in light of these events. I consider that I set out in the Judgment a description of all the significant documents on which Capita relied – although, in the circumstances, I obviously did not detail the contents of the documents on the USB stick - in sufficient detail to explain my conclusion that damages would be an adequate remedy for Capita.

(4) I consider that my analysis of Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886, Khouj v Acropolis Capital Partners Ltd & Anor [2016] EWHC 2120 (Comm), Your Response Limited v Data Team Business Media Limited [2014] EWCA Civ 281 or Environment Agency v Churngold Recycling Ltd [2014] EWCA Civ 909 was correct, that there is no real prospect that the Court of Appeal would come to a contrary view, and that my findings under this head do not give rise to any compelling reason why an appeal should be heard. The suggestion that my conclusion is susceptible to attack because the documents attached to the emails were "documents in respect of which Capita were entitled to assert full property rights" fails to take account of the "sharp distinctions" explained in the judgment of Floyd LJ at [42] in Your Response Limited v Data Team Business Media Limited [2014] EWCA Civ 281 between (a) the physical medium on which the information is recorded, which is treated as property, but which is of no material application in the case of email attachments, and (b) the informational content of emails, which Mr Quinn argued to be property, but which the law has never treated as property, and (c) the rights to which the information gives rise, which are treated as property, but upon which Mr Quinn and Capita chose not to rely. Neither the Particulars of Claim nor any other aspect of Capita's case before me placed reliance on any intellectual property right other than the Database Right. In principle, a claim for ownership and infringement of copyright might have been available to Capita, but, for reasons known only to them, Capita and Mr Quinn did not assert the same. The Defendants therefore had neither the need to meet the same nor the opportunity to explain any defences to the same. The suggestion that the Judgment contains a ruling that an employer is not entitled to recover its former employees' work emails is even more lacking in merit. Indeed, my analysis is to the contrary effect: see, in particular, [69] of the Judgment. Capita's difficulties in this regard are twofold: first, Mr Quinn's primary argument did not depend on agency obligations but instead depended (misguidedly, as I found) on a proprietary claim; and, second, to the extent that Mr Quinn sought, belatedly, to rely upon agency obligations Capita faced the difficulties on the facts that I identified in [73] of the Judgment, namely that the relief sought (a) was too wide and (b) included personal and private emails. I consider that I was entitled to reach these findings on the facts, and that they are not findings which Capita have any real prospect of disturbing on an appeal.

(5) The statement in [34] of the Judgment that the "Confidential" appendix to the Particulars of Claim related to the activities of Mr Chalmers and Mr Tailor alone was correct. It was not rendered inaccurate by the fact that Capita has a pleaded conspiracy case, and I expressly recorded elsewhere in the Judgment (for example, at [44]) that Capita contended (although other Defendants denied) that the other Defendants were implicated in the activities of Mr Chalmers and Mr Tailor. Nor was my statement rendered inaccurate by the fact that Mr Chalmers maintained that he had forwarded certain of the emails in question to Mr Turner (because no activity by Mr Turner was pleaded). Mr Chalmers' act of forwarding, also, was expressly recorded elsewhere in the Judgment (such as at [43]).

(6) I consider that the suggestion that I was wrong to take account of the Defendants' Article 8 rights is misguided. Article 8 is to some extent unusual because "Not in its terms, but as extended by jurisprudence, Article 8 imposes not merely negative but also positive obligations on the state: to respect, and therefore to promote, the interests of private and family life. That means that a citizen can complain against the state about breaches of his private and family life committed by other individuals" (see McKennitt v Ash [2008] QB 73, Buxton LJ at [9]). It is also established that, where it is apparent that the Article 8 rights of persons who are not even parties to the litigation may be affected by the Court's decision whether or not to grant an injunction, the Court should have regard to those rights (see, for example, CC v AB [2006] EWHC 3083, [2007] EMLR 11). The Grounds of Appeal do not suggest that my analysis of the relevant principles is incorrect, and nor do they put forward any basis for the suggestion that in spite of the fact that the Defendants' Article 8 rights were engaged and the fact that the relief sought paid no regard to those rights that should not have dissuaded me from granting it.

(7) The finding that the Order sought by Capita was too wide was one that it was open to me to make in light of the evidence of Mr Short and in spite of the lack of evidence from other Defendants. Mr Short's agreement to deliver up materials is not a good point. Indeed, on behalf of Mr Short, one of the grounds on which Mr Tatton Brown resisted the relief sought by paragraph 3 of the draft Order was that such delivery up as Capita might be entitled to from Mr Short would be provided by Mr Short in accordance with Mr Short's pragmatic agreement to paragraph 2 of the draft Order. I do not accept that it is open to Capita to appeal my ruling on the basis that I should have fashioned "an appropriate carve-out" to cater for the Defendants' personal and privacy rights, when those rights had very clearly been invoked by the Defendants and Capita had made clear through Mr Quinn that it was pressing for the full width of relief sought, and had not advanced any fall-back or alternative case (see [73] of the Judgment). In any event, the drafting and implementation of "an appropriate carve-out" is not necessarily straightforward: for example, in the Fairstar case provision was made for the Defendant to withhold production of emails that he claimed to be personal and private, for those emails to be submitted for assessment to an agreed independent barrister, and for any disagreement with the determination of that barrister to be resolved by the Court. This can place pressure on individuals, not least due to the expense.

(8) I decided not to order delivery up of the 4 emails which had been sent to a laptop owned by Archus for the clear and simple reasons given in [50] and [61] of the Judgment. I consider those reasons were sound. There is no real prospect that the Court of Appeal would hold that my decision was perverse, as Capita contend.

Paragraph 5 of the draft Order

11. My reasons for declining the relief sought by paragraph 5 of the draft Order in relation to confidential information are set out in [32]-[52] of the Judgment. As modified by Mr Quinn in the course of the hearing, the relief claimed sought protection in respect of:

"any information of a secret and confidential nature (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) including but not limited to technical and non-technical information, business and marketing plans and policies, information regarding future bids, customer lists, contact numbers and customer database, telephone numbers of clients, terms of contracts, pricing structures and agreements, other similar information relating to the Claimants or any Group Company of the Claimants and such information of any of its suppliers or customers and any information which the Claimants or any Group Company of the Claimants have identified as confidential or in respect of which the Claimantsor any Group Company of the Claimants owe a duty of confidentiality to a third party".

12. According to the Grounds of Appeal, Capita wish to argue on appeal that my refusal to grant an injunction in these terms was wrong for the following reasons:

(1) Capita's inability to point to one contractual definition of confidential information should not have precluded Capita from the right to interim relief "as the Judge appears to have found".

(2) I ignored the clear evidence as to the threat of misuse of Capita's confidential information in the form of the receipt of at least the above 4 emails.

(3) The above definition of confidential information "was entirely reasonable".

(4) Objections to that definition should have been made in evidence served on behalf the Defendants as to its unfairness/non-workability. There was no such evidence.

13. I consider that these proposed grounds are without substance for the following reasons:

(1) I did not hold that Capita's inability to point to one contractual definition of confidential information precluded Capita from the right to interim relief. All that I did was to point out that, in spite of the fact that various Defendants had entered into contracts of employment with various Capita companies, Capita were not seeking to rely on such express terms relating to confidentiality as might be available for that purpose. Accordingly, Capita were seeking to hold each of the Defendants to the same obligation of confidentiality, regardless of their individual circumstances, and in reliance on equitable principles alone. This is exactly as accepted by Mr Quinn at the hearing before me. See [76] of the Judgment.

(2) I did not ignore the evidence concerning the receipt of the 4 emails. On the contrary, I addressed this in detail, in particular at [36], [43-45] and [50] of the Judgment. Capita failed to persuade me that these emails were not effectively ring-fenced by the measures which Archus had taken in respect of the laptop on which they had been received. Accordingly, I did not consider that there was any threat of misuse of Capita's confidential information arising from that receipt of the 4 emails. I also considered that, if that was wrong, it was probable that any misuse would be detectable and that damages would be an adequate remedy for the same. These conclusions on the facts were properly available for me to reach.

(3) I held that the definition of confidential information was unacceptably imprecise for the following principal reasons (see [83] of the Judgment): "(a) it suffers from the vice identified by Stanley Burnton LJ of incorporating expressions such as "including but not limited to" and "other similar information", (b) it seeks to protect "information regarding … telephone numbers of clients" which I doubt can properly be claimed as confidential information of Capita, especially bearing in mind the nature of the client base of the individual Defendants' former employers, (c) it extends to "similar information relating to [not only] the Claimants [but also] any Group Company of the Claimants and [furthermore] of any of [Capita's] suppliers or customers", which seems to me to be far too wide, and (d) it also extends to "any information … in respect of which the Claimants or any Group Company of the Claimants owe a duty of confidentiality to a third party", the ambit of which the Defendants are likely to find it impossible to know". I do not consider that there is any real prospect that the Court of Appeal would decide that those views are wrong, or at least not available to me to hold.

(4) I do not consider that it was necessary for the Defendants to serve evidence before I could reach those conclusions as to the clarity and ambit of the above definition of confidential information. In any event, there was evidence as to a number of material matters – such as the size of the Capita group of companies. Indeed, I consider that Capita needed to file better evidence if they hoped to persuade the Court that it would be appropriate to grant such a wide injunction.

Paragraphs 6 to 14 and 20 to 27 of the draft Order

14. My reasons for declining the relief sought by paragraphs 6 to 14 and 20 to 27 of the draft Order are set out in [85]-[120] and [123]-[132] of the Judgment. In sum, I was not persuaded that the relief sought by Capita did no more than proportionately negate any springboard advantage that the Defendants who resisted this relief may improperly have obtained as a result of the wrongdoing that Capita are likely to prove at trial.
15. According to the Grounds of Appeal, Capita wish to argue on appeal that I was wrong not to have granted springboard injunctions for the following reasons:

(1) All the elements for the imposition of springboard relief were made out, and the only issue that was properly before me was what form that relief should take.

(2) I erred in my approach to the construction of the restrictive covenants contained in the relevant contracts of employment in respect of which (a) given the seniority of the alleged conspirators' roles within Capita, the contents were wholly unsurprising, and (b) I had no evidence to support the Defendants' submissions as to the difficulties they would face in complying with the same. Indeed, in the case of Mr Dineen, during the course of the hearing the parties were able to agree a list of customers who would be caught by his restrictions. In the absence of any evidence from the Defendants, I should not have reached my conclusions.

(3) I erred in reaching the conclusion that the evidence of misconduct before me was less compelling than that before Simler J in Devere Holding Company Ltd and Others v Belgravia Wealth Management and Others [2014] EWHC 3189 (QB). In accepting the Defendants' submissions, I wholly ignored the following facts: (a) I had not been presented with any evidence as to the same; (b) this is not only a conspiracy case but one in which Capita had established serious issues to be tried.

(4) As reflected in [105] of the Judgment, my determination was based in part on a finding that damages would be an adequate remedy. For the same reasons as are set out above in the Grounds of Appeal "this reasoning cannot now be upheld".

16. I consider that these proposed grounds lack validity for the following reasons:

(1) The elements for the imposition of springboard relief are, in summary, that the Claimants must show (a) that the Defendants have gained an unfair competitive advantage over the Claimants and that such advantage still exists and will continue to have effect unless the relief sought is granted and (b) that the duration of the injunction sought does not extend beyond the period for which the Defendants' illegitimate advantage may be expected to continue. In addition, in the present case, because it will not be possible to hold a trial before the period for which Capita claims to be entitled to an injunction has expired, it is not sufficient for Capita to establish merely that there is a serious issue to be tried as to whether the Defendants have gained an unfair competitive advantage which may be expected to continue for the duration of that period: the Court is required to consider whether Capita are likely to succeed at trial in establishing those matters. I gave careful and detailed consideration to Capita's case on wrongdoing, but I was not persuaded by the evidence or the arguments that this was a case in which, exercising the considerable caution which the decided cases indicate to be appropriate in such cases, it would be appropriate to grant springboard injunctions. I consider that my findings in respect of the issues summarised above were open to me to make – indeed they are not challenged save to the extent set out in the remaining Grounds of Appeal under this head (discussed below) - and that there is no real prospect that the Court of Appeal would hold to the contrary.

(2) I do not consider that I fell into error in my approach to the construction of the restrictive covenants contained in the relevant contracts of employment. An illustration of that approach can be found in [102] of the Judgment, in which I dealt with Mr Darch's contract of employment and held that "there are significant grounds to doubt the enforceability of the customer-based protection" because "a restriction which relates not only to persons with whom … the employee had "personal and material dealings" but also to those "about whom the employee becomes aware or is informed in the course of his (or her) employment" may well be held at trial to be too wide" and that "similar points arise with regard to the recruitment-based protection" because "the definition of "Restricted Person" may well be held at trial to give rise to problems of reasonableness and enforceability in light of the difficulty for the employee of knowing whether persons - who are not limited to those with whom he (or she) had "personal and material dealings" - are "by reason of their employment or engagement (and so forth)" by the employer "likely to be able to assist or benefit a business in or proposing to be in competition with the employer"". I do not consider that the seniority of Mr Darch's role within Capita provides any answer to these points, or renders restrictions in these wide and uncertain terms "wholly unsurprising". Nor do I consider that it was necessary for the Defendants to lead evidence to support their case as to the difficulties that an employee who is expected to comply with such terms might face in complying with the same. In any event, a number of highly material facts were not in dispute or could not sensibly have been disputed by Capita: for example, so far as concerns Mr Darch, (i) that (according to its own published accounts for the year ending 31 December 2015) the Second Defendant had 2,852 employees as at that date, and (ii) that Mr Darch worked in the Health Division - a sub-division of Capital Real Estate Advisory, which was itself a (sub) division of the Second Claimant. I do not consider that any support for Capita's case can be derived from the agreement that was reached in the course of the hearing concerning Mr Dineen (which is addressed in [121]-[122] of the Judgment), without prejudice to his case as to the validity and enforceability of the post-termination restrictive covenants contained in his contract of employment. Indeed, the fact that the relief to which Mr Dineen agreed to submit was defined not by reference to the terms of those restrictive covenants but instead by reference to an agreed list of customers is entirely consistent with the conclusion that, on the face of it and judged by their own wording alone, it is not likely that Capita will succeed at trial in establishing that those restrictive covenants are reasonable and enforceable. I am wholly unpersuaded that there is a real prospect that the Court of Appeal will disagree with my analysis or approach.

(3) Whether I was less impressed by the evidence of misconduct before me than Simler J appears to have been by the evidence that was before her in Devere Holding Company Ltd and Others v Belgravia Wealth Management and Others [2014] EWHC 3189 (QB) was a matter for me to decide. I did not ignore the fact that (save as regards Mr Short and save in other limited respects, such as reference to the contents of Capita's published accounts) the Defendants had not presented me with any evidence, including evidence as to their alleged misconduct: indeed, acknowledgment of this fact is a theme that runs through the entire Judgment. Nor did I ignore the fact that this is a conspiracy case in which Capita had established serious issues to be tried: those matters, again, are expressly recognised by the Judgment (see, for example, [14] and [18]). To the extent that Capita's approach before me was, and on the prospective appeal is, that in order to make out an entitlement to springboard relief it is sufficient to establish serious issues to be tried as to past wrongdoing, it is clear on the authorities that, even where a conspiracy is alleged, something more than this is required in any case, to say nothing of a case in which it will not be possible to hold a trial before the expiry of the period for which the injunction is claimed. There was no tension between my finding that Capita had established serious issues to be tried and my finding that they were not entitled to springboard relief.

(4) It is correct that my determination was founded in part on a finding that, based on a consideration of the materials before me, I was not persuaded that it is likely that Capita will be able to adduce better evidence in due course that damage to their business is continuing and that an unfair competitive advantage has been obtained by the Defendants and is continuing to harm Capita or benefit the Defendants, or alternatively that this is likely to be so to such an extent that damages would not be an adequate remedy. That was a finding that it was open to me to make, and the Grounds of Appeal do not set out any basis for saying that Capita has any real prospect of persuading the Court of Appeal to the contrary.

Costs

17. My reasons for making the orders as to costs that I made following the hand down of the Judgment were given in the rulings that I made on that occasion.
18. In summary, I awarded the Defendants their costs of and occasioned by Capita's application (and made limited orders for costs in the case) on a number of grounds, which included the following: (a) I considered that the Defendants had been the substantive winners, and that there was no reason not to apply the general starting point that costs follow the event, (b) to the extent that interim protections in favour of Capita had been agreed by the Defendants, I did not consider that if and to the extent that the Defendants had acted in a pragmatic and/or conciliatory way in response to an application which had been brought on for hearing as this application was brought on and which sought relief which I considered to be unjustifiable that those Defendants should be penalised or disadvantaged in costs in comparison to other Defendants who had been less placatory, and (c) I was not persuaded that, if those Defendants who offered interim protections to Capita or agreed interim protections with Capita had made those offers or reached those agreements sooner than they did, this would have made any or any substantial difference to the costs and conduct of the application on behalf of Capita. On the contrary, it seemed clear to me that Capita were intent on pursuing the full width of the relief that was sought by the application, and that unless all that relief had been offered or agreed by the Defendants the costs of the application and in particular of the hearing before me would have been incurred in any event. To take a single illustration, the application relating to the emails was pursued without any suggested amelioration or modification of wording, in spite of the point made by the Defendants (and supported by the evidence of Mr Short) that the draft Order, as framed, captured private or confidential information of the Defendants, and in spite of the fact that in the only case relied upon by Capita in support of that application the Claimant had accepted that an exclusion in relation to personal and private emails would be appropriate. Some of the reasons for the costs orders that I made were based on correspondence that was marked Without Prejudice Save as to Costs, and which I therefore consider that I ought not to expound in this written ruling.
19. I also considered that in the event that the orders for costs that I had made appeared, with hindsight, to be unjust to Capita in light of the full picture of the Defendants' conduct that would be available at trial, then it was likely that the Court would be able to redress that balance by the orders for costs that it would be open to the Court to make at the trial, in which regard (among other things) the Court would be entitled to have regard to the Defendants' conduct and to make orders for costs on the indemnity basis.
20. According to the Grounds of Appeal, in addition to seeking the reversal of the costs orders made in favour of the Defendants should the appeal be allowed, Capita wish to argue on appeal that I was wrong to have made the orders as to costs that I made, on the grounds that (a) I failed to take into account the significant undertakings that were secured from each of the Defendants (save Archus) "only at the eleventh hour shortly before the hearing of the application (and in some cases during the application itself)" and (b) in the case of Archus, that those undertakings were secured from its directors and senior employees.
21. The short answer to these Grounds of Appeal is that I did not fail to take those matters into account. Having heard the application, costs were a matter for my discretion, and I consider that I exercised this in an appropriate and judicial manner. It is rarely appropriate for there to be an appeal on costs alone. I consider that Capita's appeal against the way in which I exercised my discretion has no real prospect of success.

Conclusion

22. I do not propose to grant Capita permission to appeal on any of the Grounds of Appeal.