England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Buildings, 7 Rolls Buildings, London EC4A 1NL
		24th September 2012

Mr Recorder Douglas Campbell:

Introduction

1. This is an action for breach of confidence which was commenced in Truro County Court by the Claimant on 17^th May 2011.
2. The Claimant offers care and accommodation to people with autism, mainly in Cornwall but also apparently in surrounding counties. Its customers are the relevant local authorities and health trusts.
3. The first three Defendants ("the Personal Defendants") left the employ of the Claimant on various dates in April to May 2009. The Personal Defendants then joined the Fourth Defendant, which is a limited company, and the Fourth Defendant began trading in late 2009. The Fourth Defendant competes directly with the Claimant in terms of geographical area, service users, and customers in that it also provides care and accommodation to people with autism in and around Cornwall.
4. On this application the Defendants seek an order that they have summary judgement on the claim pursuant to CPR Part 24.2, and/or that the claim be struck out pursuant to CPR Part 3.4(2)(c) for failing to comply with orders I made on 18^th May 2012 and 4^th July 2012, and/or CPR Part 3.4(2)(b) as an abuse. Alternatively the Defendants seek an unless order requiring amended Particulars of Claim or such order as the Court considers just.
5. As apparent from the nature of the order sought, this case has been the subject of several previous applications in this matter. I shall begin by setting out the factual background including the history of this claim.

Factual background

6. The Particulars of Claim served with the claim form in Truro County Court on the 17^th May 2011 were drafted in broad terms, but essentially referred to five different types of confidential information. These were (1) financial information, including a "pricing tool"; (2) knowledge of the Claimant's email system and information about the Claimant's employees; (3) the rent paid by the Claimant on certain leases (4) identity of service users; and (5) unidentified confidential information said to have been used in an approach to Cornwall Council.
7. The Defendants considered that the Particulars of Claim served with the claim form in Truro County Court on the 17^th May 2011 were lacking in particularity in a number of respects. Accordingly the Defendant served a Request for Further Information on the 17^th June.
8. The Claimant's response to the Defendants' first Part 18 Request was filed on the 7^th July 2011. This response was almost entirely unhelpful in terms of taking matters forward. Unsurprisingly the Defendants applied for a summary judgement and/or strike out by an application notice dated 27^th July 2011.
9. That application came before District Judge Thomas in Truro County Court on 19^th August 2011. Paragraphs 1 and 2 of his order state as follows:

1. The Defendants may by 4:00pm on 24^th August 2011 file and serve one further or amended Part 18 Request.

2. The Claimant shall by 21^st September 2011 file and serve its best possible response to the request attaching all relevant copy documents.

10. What happened thereafter was that a second Part 18 request was served on the 22^nd of August, to which the Claimant responded on 23^rd September 2011. The response itself ran to no less than 52 pages, and it was accompanied by a large quantity of documents running to some 387 pages.
11. This response was a diffuse and repetitive document, which also introduced a number of fresh allegations of breach of confidence. For instance paragraph 7 of the original pleading had said:

"In breach of these agreements the First, Second and Third Defendant unlawfully used confidential information by disclosing it to Cornwall Council either individually or through the Fourth Defendant. This information that was provided allowed the Fourth Defendant to be able to unfairly compete with the Claimant in order to undercut the Claimant's costs of providing services to the Council and service users generally and thus obtain work from the Council and in relation to other service users that otherwise would have been made available to the Claimant."

In response to a straightforward request from the Defendants to identify the confidential information relied on by the Claimant with reference to the said paragraph 7, the Claimant gave a list of "examples of confidential information the first, second and third Defendant appears [sic] to have disclosed". Some of these examples, such as the "pricing tool" and employee's email addresses, had been mentioned in the Particulars of Claim. Others, such as "confidential senior team minutes", a "staff only confidential newsletter", and "standing order mandates", had not.

12. As counsel for the Defendants pointed out, it is not satisfactory to plead one case in the Particulars of Claim and plead another case in a response to a Request for Further Information given in relation thereto. In fact matters were even worse than this, in that it was difficult to relate the 387 pages supplied in response to DJ Thomas's order to the complaints made in either document.
13. Hence this response was not acceptable to the Defendants either. Accordingly the Defendants made a third Part 18 request on 7^th October 2011. The Claimant did not respond to that.
14. The next step in the action took place on 8^th November 2011 when District Judge Mitchell of Truro County Court reinstated the Defendants' application for a summary judgment and/or strikeout. On 22^nd December 2011 that hearing was listed for 3 hours on the 1^st March 2012 at Truro County Court. However that application never took place. Instead, by order of Deputy District Judge Healy on 8^th March 2012 the action was transferred to this Court.
15. That was how matters stood when the matter first came before me on 18^th May 2012. At that hearing, the Claimant was for the first time instructed by specialist intellectual property counsel. Counsel had only been instructed shortly before the hearing, and immediately found herself in the invidious position of defending her predecessor's pleadings.
16. She explained to me, inter alia, that the true nature of the Claimant's claim for misuse of the "pricing tool" was not reflected in the 387 pages supplied with the second Part 18 response. In particular these pages included some printouts of care charges relating to various individuals, but those printouts were merely given as examples of the Claimant's charges. These printouts were not, as such, examples of the "pricing tool" alleged to have been misused by the Defendants.
17. Counsel for the Claimant also explained to me the Claimant's complaint about misuse of its email system, which centred on the use of email addresses belonging to the Claimant's employees. I expressed scepticism about whether an email address, which is by its nature used by someone to communicate, could really be confidential information.
18. At that hearing I struck out part of the claim, namely item (5) above, as being wholly unsupported and speculative. However I did not strike out the rest of the claim, as counsel for the Defendant urged me to do. It seemed to me that this was altogether too draconian an approach and that the Claimant deserved a chance to formulate its case more precisely. I therefore permitted the Claimant to file and serve Amended Particulars of Claim, but this was to be limited to the existing claims and (in the case of the employee information, lease rent, and service user claims) further restricted to two specific instances of alleged misuse. I made it clear that the Claimant did not have carte blanche to introduce new claims, and if the Claimant wanted to make amendments outside the scope of what I had permitted then it would have to apply.
19. On 8^th June 2012 the Claimant served an Amended Particulars of Claim. Contrary to my order this introduced new claims, and it was not accompanied by any application for permission to do so. For instance it introduced a claim for breach of contract as against the Personal Defendants, and the claim relating to the "pricing tool" was expanded to include a further claim relating to an "assessment tool" and software relating thereto. In addition the claims relating to lease rents and service users had not been restricted as I had ordered the Claimant to do. All claims relating to the use of employee email addresses or any other employee information had, however, been dropped.
20. This pleading said that "the confidential information will be identified in a confidential schedule", but no such schedule was ever provided. Instead, at around the end of June 2012, the Claimant offered to provide the Defendants with CDs containing "in excess of 4000 pages" of documents, which the Claimant said were relevant to its claim. Since the Claimant was unwilling to identify any particular documents or passages, the Defendants understandably declined to incur the very substantial costs which would have been incurred in ploughing through these 4000 or so pages.
21. I add that the Claimant never showed me any of the material contained within these 4000 pages either. Nor did the Claimant explain to me why these documents, if relevant, had not been supplied by the Claimant in response to the order of DJ Thomas.
22. The Defendants made a further application for summary judgment and/or strikeout of the claim on 29^th June 2012, which came before me by telephone on 4^th July 2012. By that time the Claimant had parted company with the counsel who had settled the Amended Particulars, and were instead represented by leading counsel. Leading counsel found himself in the same position as the Claimant's previous counsel had been at the previous hearing before me, namely that of having to defend his predecessor's pleading. It appeared to me that the Amended Particulars of Claim were not within the scope of what I had permitted the Claimant to do under my previous order dated 18^th May and I struck out that document.
23. However once again I declined to strike out the claim, as counsel for the Defendants again urged me to do. It still seemed to me that the Claimant deserved a final chance to formulate its case more precisely, this time with the assistance of leading counsel. My recollection of that hearing, with which counsel for the Defendants agrees, is that I made it clear to the Claimant that this was a last chance. I also stressed that the pleading should deal with the allegations of misuse, as well as the identification of what was said to be confidential in the first place.
24. Leading counsel produced a pleading on 11^th July 2012. This was the day before an application made by the Claimant for a transfer to the Queen's Bench Division of the High Court was heard by Mr Justice Floyd. I have not been supplied with a copy of either the order made or the judgment given by Mr Justice Floyd on that occasion, but I was told that the Claimant's application was dismissed.
25. That brings me to this application. The upshot is that the pleading now before me (which I shall call the "Re-Amended Particulars", although strictly speaking it is the second draft of the Amended Particulars) is at least the third attempt by the Claimant to articulate its case on breach of confidence. Indeed it is the fifth such attempt if the two Responses to the Requests for Further Information are taken into account.

The Court's Approach

26. The Court's approach to summary judgment applications under Part 24 is not in doubt: see Easyair Limited v Opal Telecom Limited case, [2009] EWHC 339 (Ch), at [15]. This analysis, which was approved by the Court of Appeal in AC Ward & Sons v. Catlin (Five) Ltd [2010] EWCA Civ 1098), is as follows:

"i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman

iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550 ;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."

27. The application to strike out under Part 3.4(2)(b), ie as an abuse, raises different considerations. Counsel for the Defendant relied on the decision of Mr Justice Laddie in Ocular Sciences Ltd v Aspect Vision Care Ltd (No.2) [1997] RPC 289, 359-360:

"Pleadings in a breach of confidence action.

The rules relating to the particularity of pleadings apply to breach of confidence actions as they apply to all other proceedings. But it is well recognised that breach of confidence actions can be used to oppress and harass competitors and ex-employees. The courts are therefore careful to ensure that the plaintiff gives full and proper particulars of all the confidential information on which he intends to rely in the proceedings. If the plaintiff fails to do this the court may infer that the purpose of the litigation is harassment rather than the protection of the plaintiff's rights and may strike out the action as an abuse of process. Such a case was John Zink & Co. Ltd. v. Wilkinson [1973] R.P.C. 717 in which the Court of Appeal ordered particulars before defence. The case returned to the High Court on a successful application to strike out. This is reported under the name John Zink & Co. Ltd. v. Lloyds Bank Ltd. [1975] R.P.C. 385. As Edmund Davies L.J. put it in the Court of Appeal:

"But this appeal does not, in reality, turn upon when an order for particulars may properly be made in the present case, but, instead, whether such an order should ever be made, and, if so, what allegations it should relate to and under what safeguards it should be complied with. As to whether an order should be made at all, it is not unimportant to bear in mind that in these civil proceedings the plaintiffs have made allegations of a grave character against both defendants, charging the second with procuring a breach of confidence or contract by the first by improperly divulging trade secrets. Some would say that an assertion of criminal conspiracy is thereby made against both. They could cite in support of that proposition R. v. Willetts (1906) 70 J.P. 127, where, notwithstanding that it is not a criminal act for a person to infringe copyright nor larceny to pirate music (see R. v. Kidd (1907) 72 J.P. 104 ), it was held that an agreement to make pirated music for sale and so obtain profits out of that music to which the parties thereto had no right is indictable as a conspiracy to deprive the owner of the copyright of his property. If that decision is right (it is not without its critics) and if, as I think, the present case is analogous to it, it is pertinent to bear in mind that in Palamisto General Enterprises S.A. v. Ocean Marine Insurance Limited [1972] 2 W.L.R. 1425-a `scuttling' case-Buckley, L.J. said (at page 1440 F):

"where a party asserts his opponent's complicity in … criminal misconduct, the case is pre-eminently one in which not only the R.S.C. (Order 18 rule 12(1) and Order 72 rule 7(2)) but also fair treatment require that, so far as practicable, the matter shall be pleaded with particularity, so that the party accused may know what case he has to meet."

But even if the allegations in the present statement of claim fall short of asserting criminal misconduct, they undoubtedly impute conduct of a gravely improper character which call for no less clear particularisation."

The requirement of particularity may impose a heavy burden on the plaintiff. In a case where the plaintiff has a large quantity of confidential information and much of it has been taken by the defendant, the obligation to identify all of it might involve a great deal of work and time. Whether in such a case the court would be receptive to a plaintiff who asks for leave to pursue the defendant on some items of confidential information only, the rest being left to another time, is a difficult question which does not arise in this case. The normal approach of the court is that if a plaintiff wishes to seek relief against a defendant for misuse of confidential information it is his duty to ensure that the defendant knows what information is in issue. This is not only for the reasons set out by Edmund Davies L.J.in John Zink but for at least two other reasons. First, the plaintiff usually seeks an injunction to restrain the defendant from using its confidential information. Unless the confidential information is properly identified, an injunction in such terms is of uncertain scope and may be difficult to enforce: See for example P.A. Thomas & Co. v. Mould [1968] 2 Q.B. 913 and Suhner & Co. AG v. Transradio Ltd. [1967] R.P.C. 329 . Secondly, the defendant must know what he has to meet. He may wish to show that the items of information relied on by the plaintiff are matters of public knowledge. His ability to defend himself will be compromised if the plaintiff can rely on matters of which no proper warning was given. It is for all these reasons that failure to give proper particulars may be a particularly damaging abuse of process.

These principles do not apply only to the question of the content of the pleadings. Just as it may be an abuse of process to fail properly to identify the information on which the plaintiff relies, it can be an abuse to give proper particulars but of information which is not, in fact, confidential. A claim based even in part on wide and unsupportable claims of confidentiality can be used as an instrument of oppression or harassment against a defendant. It can be used to destroy an ex-employee's ability to obtain employment or a competitor's ability to compete. The wider the claims, the longer and more expensive the litigation. The defendant is likely to feel that he has no alternative but to challenge the confidentiality of everything, even though he believes that much or most of the technology pleaded cannot reasonably be thought of as secret. Furthermore a defendant faced with a narrow claim may decide that the commercial realities point towards a tactical withdrawal. He may be able to relinquish use of the contested information yet stay in business. The possibility of doing this reduces as the width of the plaintiff's claims increases. The defendant is left no alternative but to fight on in heavy litigation, spending money on lawyers which he would much prefer to spend on building up what may be a new business. The attractions of this to a plaintiff bent on harming a competitor's business are obvious."

28. The present case is also an action for breach of confidence, brought against competitors and ex-employees, in which wide claims of confidentiality are made. It follows that I should be careful to ensure that the Claimant gives full and proper particulars of its case. If the Claimant fails to do so, I may infer that the purpose of the litigation is harassment rather than the protection of the Claimant's rights and strike out the action as an abuse of process.
29. Ocular Sciences related to litigation in the High Court. In this Court, even greater particularity is required. See in particular Part 63.20(1), which modifies Part 16 (relating to Statements of Case) as follows:

"Part 16 applies with the modification that a statement of case must set out concisely all the facts and arguments upon which the party serving it relies".

30. This rule forms part of a package of cost-saving measures in this Court. For instance this Court will, at the case management conference, only permit specific disclosure, witness statements, and cross-examination at trial if satisfied that doing so passes the cost-benefit test: see Part 63.23 and paragraph 29 of the Part 63 Practice Direction. If that cost-benefit test is not satisfied, then the Court's decision may be made on the basis of the statements of case alone. Hence it is not satisfactory for a Claimant to rely on the hope of "something turning up" in disclosure. If no case has been shown for ordering specific disclosure there will be no such disclosure.
31. It follows that statements of case are particularly important in this Court. It also means that this Court will, or at least should be, in a better position than the High Court to see whether a case should proceed at all.
32. There was a dispute of law between the parties as to the proper application of the Court of Appeal's decision in Faccenda Chicken v Fowler [1987] Ch 117. However neither counsel could point to any issue in the case to which this dispute mattered, and I decline to consider it further.
33. I should record that I asked the parties at the hearing whether they were prepared for me to decide the case on the basis of the material currently before me. The Defendants have not yet served a defence, but their position is made clear in a number of witness statements which have been served on their behalf. The Defendants were willing for me to do so, but the Claimant was not. Hence I shall not do so.
34. I therefore now examine the Re-Amended Particulars in detail. Counsel for the Claimant was keen to stress that all the causes of action related to each other to some degree. This is true to some extent, but there is no substitute for considering each cause of action individually.

The pleaded case

35. First I will consider paragraphs 21-42, which relate to five classes of alleged confidential information, then I will consider paragraphs 43-56, which allege misuse thereof.
36. The first complaint, to be seen in paragraphs 21 -24, relies upon the "pricing tool". This is now defined as being in the form of a spread sheet containing formulae. No information is given as to the nature of such formulae. They could, for instance, merely perform the addition of figures in a column. Nor is any information given about what else is in the spreadsheet apart from the formulae. For instance, no data is mentioned.
37. No example of such a spread-sheet was shown to me, although I asked to see one. Instead I was shown a document headed "Spectrum Fee Calculator Notes", which appeared in the 387 pages produced by the Claimant in response to the order of DJ Thomas. This was not a spread-sheet containing formulae at all. It was simply a printout showing various staffing costs relating to a client by the name of Mr Mark Harris. It was not suggested that Mr Harris has anything to do with this claim:
38. Counsel for the Claimant told me this printout was only put forward as an example. However it is not an example of the pricing tool as defined in paragraphs 21-24. Accordingly I am still unclear as to what exactly the "pricing tool" is said to be, beyond the general idea that it is some sort of spreadsheet containing some sort of formulae.
39. The next claim, to be seen in paragraphs 25-28, is headed "the employee personal information". This is the claim which had been dropped in the Amended Particulars of Claim. In the Re-Amended Particulars, it is not merely reintroduced but expanded. In particular it was expressed as "personal information (including their contact details) of Spectrum's employees". I interject that there were no restrictive covenants in the Personal Defendants' contracts preventing solicitation of employees of the Claimant.
40. I asked counsel for the Claimant what particular personal information was relied upon hereunder. In reply he mentioned email addresses, names, and addresses. I pointed out that this all fell within the scope of "contact details" and asked whether any other personal information was relied upon. Counsel for the Claimant then identified dates of birth, professional qualifications, and experience. As will be seen none of these things are even mentioned in the Re-Amended Particulars. Counsel for the Claimant also made it clear that these three additional examples were a non-exhaustive list of types of personal information relied upon, but he did not tell me what other types of personal information were being relied upon by the Claimant.
41. Accordingly I remain unclear as to what is, and what is not, within the scope of this part of the claim. Nor was I directed to any part of the 387 pages of information relating to any dates of birth, professional qualifications or experience of any of the Claimant's employees, let alone shown any such material which was said to be relevant to the case.
42. The next claim is to "service user personal information": see paragraphs 29-32. The relevant plea here is paragraph 29:

"At all material times as part of his employment at Spectrum, the First Defendant had access to the personal information (including their health information, service requirements and service provision) of Spectrum's existing and potential service users."

43. As counsel for the Defendants pointed out, these are potentially very broad. For instance "health information" relating to a service user (i.e. an autistic person) could cover many years of such information. Once again I was not shown where any of this health information was to be found in the 387 pages supplied pursuant to the order District Judge Thomas.
44. Counsel for the Claimant told me that this heading of "service user personal information" was intended to include something described as a Statutory Statement of the service user's requirements. This Statutory Statement is not pleaded; the statute in question was never identified; and he did not direct my attention to any examples thereof. I remain unclear as to what it is about the service users that is said to be confidential information. It does not seem to be the mere identity of the users, but something more specific relating to the actual services used.
45. The next complaint relates to "the financial information", which is defined in circular terms as follows:

"During the course of their employment with Spectrum, each of the Personal Defendants had access to Spectrum's financial information ("the financial information").

From paragraph 35 of the pleading, this complaint only seems to refer to lease rental prices for two particular premises, namely Menna House and East Wheal Rose Farmhouse. I also note that no other type of financial information is specified anywhere in paragraphs 33-37.

46. Counsel for the Claimant suggested to me that this generalised reference to Spectrum's "financial information" was a reference to input figures appearing in the "pricing tool" discussed elsewhere in the Re-Amended Particulars. If so, this is not made clear anywhere in the pleading. In addition, if specific figures were to be relied upon, such figures should have been identified either here or in a schedule to the pleading.
47. The final item of confidential information relied upon is described as "pricing tool output": see paragraphs 28-42. It is said that:

"From time to time during the course of his employment with Spectrum, the Second Defendant would use the service user personal information of a service user and the financial information in order to populate the pricing tool, which would then yield an output ("the pricing tool output") including Spectrum's costs."

48. The pleading does not explain what "service user personal information" or "financial information" is relied upon in this section. It appears to be a generalised reference back to these general terms as previously used in the document, but as pointed out above these terms are not clearly defined. It is also seems to me that this "pricing tool output" must relate to a specific individual service user, but no such individuals are identified.
49. I now turn to the alleged breaches, as set out in paragraphs 43-57. Paragraph 43 is typical of the approach taken in most of these paragraphs. Under the heading of "Particulars of Use of the Pricing Tool and Pricing Tool Output", the following are given:

1. "The Personal Defendants deployed the Pricing Tool for the purpose of calculating Spectrum's likely price for service users.

2. The Personal Defendants deployed the Pricing Tool Output for the purpose of comparing the Fourth Defendant's price for service users with Spectrum's price for the same services.

3. Spectrum is unable to give further particulars of the Personal Defendants' breaches until after disclosure."

50. It will be apparent that paragraphs 1 and 2 are entirely general assertions. They are not particulars at all, let alone "facts and arguments". There is no reference to any particular Defendants; nor to any particular financial information; nor to any particular service users. Nor is any reason given for supposing that the Personal Defendants did any of the acts for which they are accused.
51. I find this lack of particularisation surprising in the circumstances. This is because both the Claimant and the Defendants operate in a narrow market where any misuse of pricing information should have been easy to detect. Neither counsel suggested that there were any third party competitors in this market, and those instructing them would have been aware of any such competitors.
52. For instance the Claimant should have known if it was losing contracts from Cornwall Council for individual service users due to price undercutting by the Defendants for these service users. Cornwall Council would have had no motive to keep the (ex hypothesi) lower prices quoted by the Defendants for these service users secret: in fact it would have had every incentive to press the Claimant for a better price in relation to the service users in question. The Claimant would then have been able to identify the relevant service users, and whatever confidential financial information it had which related to such service users. None of this work appears to have been done at all, yet it should have been a prerequisite to bringing any claim for breach of confidence. Nor is this a case where the Claimant has any other type of evidence, such as forensic examination of computers used by the Defendants whilst still employed by the Claimant, to support its allegations of misuse.
53. The third "particular" here is a frank admission that Spectrum is unable to give further particulars of the Personal Defendants' breaches until after disclosure. However that misunderstands the nature of this Court's approach under CPR Parts 63.20 and 63.23. This Court will not direct a fishing expedition to see if something turns up to support a speculative cause of action. I use the word speculative advisedly because paragraphs (1) and (2) demonstrate that the allegation of misuse is unsupported by any facts or arguments.
54. The comments about lack of particularity, let alone facts and arguments, also apply to the other alleged instances of breach. I shall deal with them more briefly, as follows.
55. Paragraph 47 relates to alleged misuse of employee confidential information. The gist of it is that the Fourth Defendant used some sort of "employee personal information" to contact some unidentified employees. As I have said above, the type of information relied upon is unclear.
56. However paragraph 48 states that "further" the personal Defendants gave the Fourth Defendant "details of Spectrum employees including Michelle Buzza, Christine Merrifield and Ben Clemmens". Paragraph 50 says that the information referred to in paragraph 48 was wrongfully used by "engaging Spectrum's employees including Kirsty McLeod and Charlie Cooper". None of the individuals mentioned in paragraph 48 are mentioned in paragraph 50, nor vice versa; nor are the "details" identified. It is not clear to me how the details of the employees mentioned in paragraph 48 are said to have been used to engage the different employees mentioned in paragraph 50. Nor are these said to be an exclusive list of the complaints; nor are any facts and arguments identified in support of the case that the Defendants had anything to do with any of the matters complained of.
57. Paragraphs 51 to 54 purport to relate to misuse of "service user personal information". It will be recalled that this was defined as "including health information, service requirements, and service provision", including in particular a Statutory Statement. However despite the heading the alleged misuse appears to relate to matters having little apparent relationship with health information or to any Statutory Statement.
58. For instance paragraph 51 includes reference to a newly defined class of "service user personal information and certain financial information (namely, the amount that Spectrum was charging the local authority and the level of service that Spectrum was providing)". As explained above, it is not clear to me that this particular type of financial information is actually pleaded as forming part of the confidential information. Paragraph 51 goes on to allege that the Personal Defendants used the same to encourage the parents of two service users (namely Michael Dillon and Hugo Sherry) to complain to the local authority and to the Care Quality Commission about the service that Spectrum was providing to those service users.
59. The first problem with this is that there is nothing anywhere in the 387 pages of documentation or in any of the pleadings to support the suggestion that any such complaints were made at all, let alone made with the encouragement of the personal Defendants. This is despite the fact that the Claimant made a Freedom of Information request of Cornwall Council, and the Claimant relied on part of the documentation which was supplied to it by Cornwall Council in its first Part 18 Response.
60. The Claimant's response to this lack of documentation about complaints, as I understand it, is to allege that the Defendants have an "unhealthy relationship with Cornwall Council": see the Claimant's 2^nd Part 18 Response, p 52. Thus the lack of documentation about complaints about the Claimant is said to be due to a conspiracy of some sort involving Cornwall Council, the Defendants, and perhaps even the complainers themselves. Even if that were the case, it seems odd that the Claimant never received any written notice of the complaints about itself. Prima facie one would have expected complaints about the Claimant to be directed to the Claimant.
61. Secondly, even if there were any such complaints, and even if the Personal Defendants had done their very best to encourage them, it does not follow that the Personal Defendants must have misused the Claimant's confidential information in order to encourage the same. As explained above, the Claimant and the Fourth Defendant appear to be the only competitors in a narrow market. Once again this therefore appears to be an unsupported allegation.
62. The final section dealing with alleged misuse is headed "financial information" and, consistently with my interpretation of paragraphs 33-37, is exclusively concerned with the lease rental information of Menna House and "East Wheal House". Unlike the other causes of action, this does at least identify the information in question with some particularity although I note that the actual lease rental values themselves are nowhere identified. Once again there is then a general paragraph stating that "Spectrum is unable to give further particulars of the Personal Defendants' breaches until after disclosure".
63. The particular allegation made in paragraph 55 is that in breach of "(1) the implied terms of his contract of employment with Spectrum" (2) the terms of his Compromise Agreement … (3) the duty of confidence which he owed Spectrum … after 19 May 2009 each of the Personal Defendants and, in particular, the Third Defendant gave the Fourth Defendant the rental information". Going by the references to "his" and "he", and "in particular" this appears to be an allegation made against the Third Defendant in particular, not against all three of the personal Defendants. No facts or arguments are set out in support of the allegation that it was the Third Defendant which gave the Fourth Defendant this rental information.
64. The case against the Fourth Defendant is tied to its receipt of information "as alleged in paragraph 55": see paragraph 56. The alleged misuse by the Fourth Defendant of that information is said to have been in unidentified "negotiations between Spectrum's agent, Mr Ian Simpson, and the Fourth Defendant's agent, King Sturge". Although the Claimant might be expected to be aware of the particular negotiations in question, since its agent was engaged therein, they are not identified. More puzzlingly, no details are given as to how the lease rental information was actually deployed in these negotiations with the Claimant's agent. It is not suggested, for instance, that King Sturge said to Mr Simpson "We know that the rental for Menna House is only £x, therefore we will only pay £y for property Z". Nor is it suggested that such negotiations in any way related to the two properties specifically named.

The evidence

65. The solicitors on both sides have served witness statements during the course of this litigation, and the Re-Amended Particulars include a statement of truth signed by the CEO of the Claimant. However I should also mention the additional evidence which has been served.
66. On 12^th July 2012 the Personal Defendants, and a Director of the Fourth Defendant (Mr Cedy Derwent), served witness statements denying the allegations made against them. The force of the witness statements served on behalf of the Personal Defendants as evidence is undermined by the fact that they are almost word-for-word identical. This suggests that at least two of the three were signing a document which was put in front of them, not giving their own evidence in their own words.
67. In any event the main points made by the Personal Defendants therein are as follows:

(a) Denial of all allegations made by the Claimant.

(b) An allegation that the Fourth Defendant's fees are calculated by adding up staff costs, variable costs, fixed costs, central costs, and profit margin in a conventional way.

(c) An allegation that the two employees who left the Claimant to join the Fourth Defendant (namely Ms Kirsty McLeod and Mr Charlie Cooper) contacted the Defendants, rather than the Defendants contacting them.

(d) An allegation that in relation to the two service users named in the original Particulars of Claim (Hugo Sherry and Michael Dillon), their parents had contacted the Defendants, rather than the Defendants contacting them.

(e) A specific denial that any financial information was taken, and in particular any rental information relating to any properties (including Menna House and East Wheel Rose Farmhouse).

68. The witness statement of Mr Derwent is different. He deals with the claim relating to lease rental information and explains that he obtained this information from a Mr Jon Bowles in around 2009. The Claimant pointed out the lack of any evidence from Mr Bowles himself, which prompted the Defendants to serve a witness statement from Mr Bowles on 6^th September 2012. In this statement Mr Bowles said, inter alia:

(a) That he was given the rental information about the two properties "in around 2008, with the full knowledge and support of the CEO Mary Simpson, the other members of the management team, Donald Harvey Chairman of the Trustees and the Trustees … by Mr Ken Pyrah, a member of Spectrum's senior management team at the time".

(b) That "There was no restriction on use of the information nor was there a non-disclosure agreement or confidentiality agreement between us nor was I told that the information could not be shared with others … As I have stated above all information was provided to me freely by Spectrum with the full knowledge and consent of the senior management team, the CEO and trustees with no restriction as to use, disclosure or confidentiality".

69. Counsel for the Defendants pointed out that, whatever the criticisms which could be made of the Defendants' evidence, the lack of any response from the Claimant was surprising. I agree. Apart from pointing out the lack of evidence from Mr Bowles in the round of witness statements served in July, the Claimant has made no response to any of this material. For instance it has not challenged any of the statements made, or served any evidence in response.
70. So far as the claim for breach of confidential information relating to the lease rents is concerned, the Claimant has not applied to amend its case in any way following the service of this evidence. Instead it has maintained all of the allegations made in its Re-Amended Particulars and in particular its case that the Third Defendant supplied the lease rent information in question to the Fourth Defendant in 2009 in breach of confidence.

Conclusions

71. Disposing of a case without trial should always be a matter of last resort hence I did not strike out this case, or give summary judgment, on the previous two hearings. However, I have now come to the firm view that summary judgment should be given for the Defendants under CPR Part 24.2, and the case should also be struck out under Part 3.4(2)(b) as an abuse. I reject the Defendants' application under Part 3.4(2)(c). My reasons are as follows.
72. First, with the exception of the rental information it is still far from clear what confidential information is actually being relied upon. The nature of the claim has changed from pleading to pleading, and the claim relating to the employee personal information even developed in the course of the hearing before me. The failure to specify this basic component of the claim is fundamental.
73. Secondly, I have come to the firm conclusion that all of the allegations relating to misuse are no more than unsupported speculation. In many instances this is obvious from the generality of the language used: see eg the claim for misuse of the pricing tool. In other instances, it is unclear what is actually being alleged: see eg the claim relating to employee personal information "details". In still other instances, the plea is cast in terms which appear to be more precise but which turn out not to be based on any identifiable facts: see eg the claim that service user information has been misused to encourage complaints.
74. This conclusion also applies to the claim based on the lease rental information. It may at first sight appear that there is more substance to this part of the claim, but that is only because it has in this instance been possible to identify the actual information relied upon with a reasonable degree of precision (although, as I say, the actual amount of the lease rents is not supplied). On analysis it turns out that the claim for misuse is, just like all of the other claims, based on nothing more than speculation. No facts or arguments are pleaded other than generalities: some sort of use in some sort of negotiations involving the Claimant's agent.
75. In this instance I also have the unchallenged evidence of Mr Derwent and Mr Bowles that the information in question came from Mr Bowles, not from the Third Defendant as alleged, or indeed from any of the Defendants. In addition I have Mr Bowles's unchallenged evidence that he in turn obtained it from the Claimant "with the full knowledge and consent of the senior management team, the CEO and trustees with no restriction as to use, disclosure or confidentiality". Mr Derwent's own evidence, also unchallenged, supports this: he says that "Mr Bowles indicated to me that he had received this information freely from Spectrum".
76. Thirdly, it is particularly important to bear in mind that the Claimant has already had multiple opportunities to formulate its case. As Counsel for the Defendants points out, the Claimant has employed no less than three separate lawyers who have each produced at least one version of the Claimant's case. I have no doubt that each of these lawyers has done his or her best with the material available. Yet on each occasion those lawyers have not been able to produce a document which identifies the confidential information relied on, and/or which substantiates the allegations of misuse. Hence the problem cannot be a mere matter of pleading, or a lack of opportunity to plead.
77. I also note that on 4^th July 2012 I told the Claimant that this was its last chance. The Claimant cannot expect to have a series of last chances. That would be unfair both to these Defendants, and to other litigants.
78. Fourthly, the Claimant's main argument appears to be that its case should be allowed to go to trial because something may turn up. That is a fishing exercise, which is not appropriate either in the High Court or in this Court.
79. The above points establish that the Claimant has no real prospect of success, and hence justify giving summary judgment for the Defendants under Part 24.2. However, in relation to Part 3.4(2)(b), ie abuse, I will go further. In particular I infer that the purpose of this litigation is harassment of competitors and ex-employees, rather than the protection of the Claimant's rights. I say this not just because of the problems with the claim itself, as set out above, but because of the Claimant's approach to the conduct of this litigation. At every stage the Claimant's approach appears to have been calculated to keep the litigation going rather than to conduct it in a reasonable, cost-effective, and proportionate manner. I say this for the following reasons:

i. First, the original Particulars of Claim, and the first Part 18 Response, were both unacceptably vague.

ii. Secondly, the 2^nd Part 18 Response went to the opposite extreme. It was a kitchen sink approach: so verbose and diffuse that it failed to clarify what the claim was about. In addition it did not seem to me that the Claimant chose the 387 pages of documents supplied pursuant to the order of DJ Thomas with any particular care. With a very limited number of exceptions – in fact, it turned out to be only 2 pages - this material had only peripheral relevance to the claim.

iii. I suspect that the 4000 documents were also of only peripheral relevance to the claim. I cannot be sure because I was never supplied with any of them, nor did the Claimant seek to draw my attention to any part of that material. It was wholly unreasonable of the Claimant to send the Defendants such a substantial volume of material without making any attempt to identify which (if any) documents were important or for what purpose.

iv. The Claimant also disregarded the order which I made on 18^th May 2012 limiting the new pleading to its existing claims, which is why I struck out its Amended Particulars of Claim. Likewise the Re-Amended Particulars, quite apart from their other defects, are not within the scope of the similar order I made on 4^th July 2012: see, for example, the claims relating to misuse of employee personal information (introduced without permission), and the claim relating to the "list of service users" (expanded into a different type of plea about complaints by parents of service users). This does not justify striking out the action under Part 3.4(2)(c), as the Defendants urged me to do, but it does form part of my reasoning on Part 3.4(2)(b).

v. No formal application was made for permission to add these new claims. The furthest the Claimant went was to include a couple of sentences in its skeleton argument for this hearing, stating that to the extent that the Re-Amended Particulars went beyond the "14 July order" [sic], "there is no good reason why the Claimant should not have that permission". There was no application notice, no evidence in support, nor any detailed argument. I infer that this was because the Claimant sought to minimise the significance of the expansion to its case.

vi. I reiterate that the nature of the complaints made by the Claimant has mutated on a more or less continuous basis throughout all of the documents it has served. For instance its explanation of the "pricing tool" was inconsistent, perhaps because (according to the Personal Defendants' unchallenged evidence) this term was never used by the Claimant during the period of the Personal Defendants' employment by the Claimant. The claim for misuse of employee personal information was originally raised on one basis, dropped, then raised on another basis entirely and still continues to develop. The complaint about misuse of minutes was buried in the 2^nd Response to the Request for Further Information, and never featured in any of the pleadings, but counsel for the Claimant attempted to build a case on it during the course of his oral submissions to me. More examples could be given.

vii. As I explained above, the Claimant never even attempted to set out any facts or arguments in support of its case, as it was required to do under Part 63.20. The Defendants never knew what case they had to meet, and it was not surprising that they took the action they did.

viii. What was more surprising, to me at least, was that the Claimant made so little effort either to compel the Defendants to serve a defence or to move the action on generally. The Claimant shows no sign of wanting a trial soon, or indeed at all.

ix. All of this has had the effect on the Defendants which one would expect. I was told by counsel for the Defendants that, in addition to suffering the stresses of litigation, the Defendants had incurred over £30 000 in legal fees and still had no real idea of the case made against them.

80. For all these reasons I grant the Defendants' application. I will hear Counsel as to the form of order.