Hydropool Hot Tubs Ltd v Roberjot & Anor [2011] EWHC 121 (Ch)

[2011] EWHC 121 (Ch)Case No HC10C02321
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 February 2011
Before
THE HON MR JUSTICE ARNOLD
Between
HYDROPOOL HOT TUBS LIMITEDClaimantJOHN ROBERJOTDefendantsPARAMOUNT HOT TUBS LIMITEDDefendant
Nicholas Stewart QC and Scott Pearman (instructed by Gaby Hardwicke) for ClaimantUlick Staunton (instructed by Callaghans) for DefendantsHearing Hearing date: 13 January 2011
Judgment

Introduction

[1]I have before me an application by the Claimant (“Hydropool”) for the Defendants (“John Roberjot” and “Paramount” respectively) to be punished for contempt of court. Somewhat unusually, I reserved my judgment since a point of law arose during the course of the hearing which counsel had not prepared to address me on. I therefore gave the parties the opportunity to make further submissions on that point in writing. As related below, there have also been a number of other developments since the hearing.

Background

[2]Hydropool carries on business as the exclusive UK distributor of hot tubs manufactured in Canada by Hydropool Inc. Although various registered Community trade marks which include the word HYDROPOOL are owned by Hydropool Inc, Hydropool claims that it has its own reputation and goodwill in the UK. Hydropool maintains an electronic database of information concerning actual and prospective customers. It contains customer names, addresses, telephone numbers and email addresses. In the case of actual customers, it contains information about Hydropool’s dealings with each customer. Hydropool claims database right in respect of the database. It also contends that the information contained in the database, and in particular the customer list, is its confidential information.[3]John Roberjot was appointed as a director of Hydropool on 5 June 2007. In August and September 2009 other directors of Hydropool became suspicious about his behaviour. In due course a number of disciplinary allegations were made against John Roberjot. This led to the parties entering into a compromise agreement dated 10 November 2009 under which Hydropool paid John Roberjot a severance payment in consideration of him waiving any claims he might have against Hydropool and giving various undertakings.[4]Six days later John Roberjot set up Paramount. Paramount supplies hot tubs, parts and accessories and undertakes servicing. John Roberjot’s evidence is that it started trading either on 1 May 2010 (first affidavit, paragraph 25) or in March 2010 (second affidavit, paragraph 9). At least to some extent, it competes with Hydropool. John Roberjot is the sole director of Paramount. The majority shareholder is John Roberjot’s father Paul, who is not an officer of the company. John Roberjot’s evidence is that the only people who work for the company are himself, Paul Roberjot and Jack Weller (although in the case of Mr Weller, he is said to be self-employed). Mr Weller was previously employed by a company called Hydropool Spas (Service) Ltd.[5]On 15, 16 and 17 June 2010 a number of Hydropool’s customers received an SMS text message sent on behalf of Paramount which read as follows:
“Your new number for unbeatable savings on Filters, Chemical and Servicing for your hydropool spa. Call 01403 710888 or visit www.paramounthottubs.co.uk.”
[6]Hydropool contends that John Roberjot and Paramount obtained the contact details of its customers from its database, whether before or after John Roberjot’s departure from Hydropool, and used them to send this text message. Accordingly Hydropool contends that John Roberjot and Paramount have committed a number of wrongful acts, including breach of the compromise agreement, breach of confidence and infringement of database right. Hydropool also contends that the text message constitutes an act of passing off.[7]On 22 June 2010 Hydropool’s solicitors sent letters before action to Paramount and John Roberjot. Not having received satisfactory responses, on 6 July 2010 Hydropool launched an application for interim injunctions. On 9 July 2010 the Defendants gave certain contractual undertakings pending an adjourned hearing of the application.[8]On 13 July 2010 John Roberjot swore a first affidavit in opposition to Hydropool’s application. In that affidavit, he said that Paul Roberjot had arranged for “711 texts” to be sent to “people whose details appeared on the Second Defendant’s database” as a marketing exercise. The natural reading of this is that the text message in question was sent to 711 recipients. He denied that either he or Paul Roberjot had made or taken any copy of Hydropool’s database or customer list. He said that Paramount had acquired an existing customer database from an American company called Watkins, whose UK distributor called Hotspring UK had gone into receivership, as part of an agreement that Paramount would be a distributor for Hotspring spas and hot tubs. He said that Mr Biggs of Watkins had emailed the Hotspring UK database to him on 26 March 2010. He also said that, since it commenced trading, Paramount had received many leads from a website called WhatSpa.com, which also supplied leads to Hydropool. He suggested that the reason why a number of Hydropool’s customers had received the text message was due to an overlap between Hydropool’s database and Paramount’s.[9]Also on 13 July 2010 Paul Roberjot swore an affidavit confirming the contents of John Roberjot’s affidavit.[10]On 16 July 2010 Kitchin J made an order after a hearing which was attended by counsel instructed on behalf of the Defendants, but not by John Roberjot or any other representative of Paramount. The Defendants did not consent to the order, but did not oppose it. The order included the following provisions:
“(2) Until the Return Date, or trial or further Order in the meantime: (1) The First and Second Defendants must not use or disclose any information acquired directly or indirectly by the Defendants in respect of customers of Hydropool Hot Tubs Limited (hereinafter referred to as ‘the Claimant’) contained in; (a) the Claimant’s database including details of the Claimant's customers (‘the Database’); and (b) the Claimant's list of customers (‘the Customer List’) whether recorded in some paper or other hard copy document (‘hard copy’) or held in electronic form (‘soft copy’) … all the said information … being ‘the Information’ … (5) The First Defendant must swear and the Second Defendant must cause to be sworn on its behalf or before 4pm on 21 July 2010 affidavits setting out: a. Confirmation of any and all of the Information (as defined in paragraph 2(1) above) in the possession or previously in the possession of the First Defendant and/or the second Defendant and further confirmation of: i. How the Information came to be in the possession of the Defendants or either of them; ii. What use has been made of the Information by or behalf of the Defendants or either of them; iii. The date of each and every such use; iv. Any customers on the Database and/or the Customer List approached by or on behalf of the Defendants or either of them; …. (3) The solicitors for the Claimant shall at 10am on 21 July 2010 or such other time on that day as shall be mutually agreed between the parties’ solicitors be permitted to attend the offices of the solicitors for the Defendants whereupon the solicitors for the Claimant shall be allowed to inspect and take both electronic and hard copies of: …. (b) a list of the recipients of the 711 sent texts referred to in paragraph 29 of the Affidavit of the First Defendant dated 13 July 2010; Save that the solicitors for the Claimant undertake that they will not disclose this material to the Claimant without first obtaining either the written consent of the Second Defendant or an Order of the Court permitting such disclosure to the Claimant.” (1) The First and Second Defendants must not use or disclose any information acquired directly or indirectly by the Defendants in respect of customers of Hydropool Hot Tubs Limited (hereinafter referred to as ‘the Claimant’) contained in; (a) the Claimant’s database including details of the Claimant's customers (‘the Database’); and (b) the Claimant's list of customers (‘the Customer List’) whether recorded in some paper or other hard copy document (‘hard copy’) or held in electronic form (‘soft copy’) … all the said information … being ‘the Information’ all the said information … being ‘the Information’ … (5) The First Defendant must swear and the Second Defendant must cause to be sworn on its behalf or before 4pm on 21 July 2010 affidavits setting out: a. Confirmation of any and all of the Information (as defined in paragraph 2(1) above) in the possession or previously in the possession of the First Defendant and/or the second Defendant and further confirmation of: i. How the Information came to be in the possession of the Defendants or either of them; ii. What use has been made of the Information by or behalf of the Defendants or either of them; iii. The date of each and every such use; iv. Any customers on the Database and/or the Customer List approached by or on behalf of the Defendants or either of them; …. i. How the Information came to be in the possession of the Defendants or either of them; ii. What use has been made of the Information by or behalf of the Defendants or either of them; iii. The date of each and every such use; iv. Any customers on the Database and/or the Customer List approached by or on behalf of the Defendants or either of them; …. …. (b) a list of the recipients of the 711 sent texts referred to in paragraph 29 of the Affidavit of the First Defendant dated 13 July 2010; Save that the solicitors for the Claimant undertake that they will not disclose this material to the Claimant without first obtaining either the written consent of the Second Defendant or an Order of the Court permitting such disclosure to the Claimant.”

all the said information … being ‘the Information’

[11]Kitchin J’s Order was prominently endorsed on the front page with a penal notice addressed to both Defendants. It was not personally served on either Defendant, however.[12]On 21 July 2010 the Defendants’ then solicitors sent Hydropool’s solicitors by email what they described as a list of the recipients of the texts, referred to as the “Text List”, in purported compliance with paragraph 3(b) of Kitchin J’s Order. As I understand it, it is common ground that it was agreed that the Defendants’ solicitors could send the list by email rather than Hydropool’s solicitors attending their offices. What was sent, however, was simply a list of telephone numbers.[13]On 25 July 2010 John Roberjot swore his second affidavit, in purported compliance with paragraph 2(5) of Kitchin J’s Order. No point is taken on the fact that this was slightly late. John Roberjot denied that he or Paramount had ever been in possession of Hydropool’s database or customer list, or that he had had access to it since the end of his employment by Hydropool. He went on:
“6. I have also been asked to provide a list of the recipients of the 711 texts (‘Text List’) which are referred to in paragraph 29 of my affidavit dated 13 July 2010. This has also been provided to my solicitors and I understand sent to the Claimant’s solicitors. 7. In relation to the Text List, I can confirm that there are 659 numbers contained in the list. The list is a recreation of the information provided to the company that sent the texts on behalf of the Second Defendant, namely TXT Local. We do not have a hard or soft copy of the details sent to TXT Local. The information was sent to TXT Local by my father, Mr Paul Roberjot, directly uploading the telephone numbers onto its web site. We are trying to obtain from TXT Local any records it has of the information uploaded. 8. I should confirm that I did not upload these numbers onto TXT Local’s website. The information was manually uploaded by my father. 9. All of the 659 text numbers in the Text List sent to the Claimant’s solicitors were copied from the Hotsprings and Paramount databases. The Hotsprings database is an Excel spreadsheet and the second page contains three columns with various telephone numbers entered. Paul has gone through the three columns and cut and pasted into the Text List all the mobile telephone numbers in those three columns, but not numbers for landlines and then reordered the same in numerical order. The name and other details of the owner of the mobile number can then be seen in the corresponding entry on the first page of the spreadsheet. Some additional numbers (approximately 100 from the 659) were copied from the Paramount database, which has approximately 150 contacts and is solely made of customer’s details which have been collated since the Second Defendant started trading in March 2010. 10. However, details of further people were uploaded by my father from spreadsheets that Mr Jack Weller has which was done without my knowledge.”
[14]John Roberjot went on to explain that Mr Weller had two spreadsheets containing customer details, one relating to sales and one relating to service, which Mr Weller had created at the time of his previous employment.[15]As I read this affidavit, the explanation being advanced by John Roberjot for the fact that only 659 telephone numbers had been provided by the Defendants in the Text List on 21 July 2010 when 711 texts had been sent is that John Roberjot did not know that Paul Roberjot had arranged for the text message to be sent to numbers obtained from Mr Weller’s spreadsheets on 21 July 2010, and therefore those numbers had not been included in that list. (This is consistent with the absence of any reference to Mr Weller’s spreadsheets in John Roberjot’s first affidavit.) On this account, the 659 numbers provided in the Text List comprised about 559 numbers from the Hotspring UK database and about 100 numbers from the Paramount database (presumably from the WhatSpa.com leads described in the first affidavit). It follows from this explanation that the source of the remaining 52 numbers (711 – 659) was Mr Weller’s spreadsheets.[16]On 27 July 2010 Floyd J made an Order after a hearing which was attended by counsel instructed on behalf of the Defendants, but not by John Roberjot or any other representative of Paramount. The Defendants did not consent to the Order, but did not oppose it. The Order included the following provisions: “(5) The First Defendant must swear and the Second Defendant must cause to be sworn on its behalf or before 4pm on 29 July 2010 an affidavit or affidavits: … (b) confirming that all the items directed by paragraphs (6), (7) and (8) of this order have been provided to … the solicitors for the Claimant …. in compliance with this order. … (7) On or before 4pm on 6 August 2010 the Second Defendant shall provide and the First Defendant shall cause the Second Defendant to provide to the Claimant’s solicitors a list in an Excel electronic spreadsheet setting out the names of the recipients of all the 711 text messages mentioned in paragraph 29 John Roberjot’s First Affidavit, stating were applicable where any of those named recipients was sent more than one (and if so, how many) such text messages and setting out against each such name the mobile telephone number to which the text message or (if more than one) each text message to that recipient was sent. (8) On or before 4pm on 6 August 2010 the Second Defendant shall provide and the First Defendant shall cause the Second Defendant to provide to the Claimant’s solicitors exact copies of all electronic and (except where the hard copies are only printouts of such electronic files and show no information at all beyond that in the electronic files) hard copy list of customers or prospective customers in the possession of or belonging to the Second Defendant including and separately identify all copies of spreadsheets of Jack Weller mentioned in paragraph 15 of the First Defendant's Second Affidavit.” … (b) confirming that all the items directed by paragraphs (6), (7) and (8) of this order have been provided to … the solicitors for the Claimant …. in compliance with this order.[17]Floyd J’s Order was prominently endorsed on the front page with a penal notice addressed to both Defendants. It was not personally served on either Defendant, however.[18]On 6 August 2010 the Defendants’ then solicitors sent Hydropool’s solicitors by email, in purported compliance with paragraphs (7) and (8) of Floyd J’s Order, what were described as “soft copy of Jack Weller’s spreadsheets” and “Text List with names”. I note that the latter contains only 705 entries rather than 711, but no point has been taken by Hydropool about this.[19]On 9 August 2010 John Roberjot swore his fourth affidavit in which he purported to verify the Defendants’ compliance with paragraphs (7) and (8) of Floyd J’s Order. In this affidavit he stated:
“2. I confirm that at about 1:30 pm on 6 August 2010 the Defendants’ solicitors sent the Claimant’s solicitors a list in an Excel electronic spreadsheet setting out the names that I can now identify of the recipients of the text messages mentioned in paragraph 29 of my first affidavit and beside each such name the mobile telephone number to which the text message was sent. 3. As mentioned at paragraph 7 of my second affidavit this list has been recreated as I have been unable to obtain any records from TXT Local.”
[20]On 23 August 2010 Hydropool’s solicitors wrote to the Defendants’ then solicitors stating their client’s belief that the lists of numbers provided by the Defendants pursuant to the Orders of Kitchin and Floyd JJ was wholly or partly fictitious. The reason given for this belief was that analysis of the Text List with names had shown that many entries were numbers of contacts (relatives, friends and work contacts) of John Roberjot’s and that in several cases false names have been associated with the numbers in an attempt to hide that fact.[21]On 1 September 2010 the Defendants revealed that Paramount had itself instructed TXT Local to delete all records relating to the text messages. That instruction was given on about 9 July 2010. The Defendants contend that it was given by Paul Roberjot. Hydropool contends that it was given by John Roberjot. It is not necessary for present purposes for me to try to determine who is right about that. Nor it necessary for me to express any view with regard to Hydropool’s contention that the timing of the instruction is significant given that it was on 9 July 2010 that the Defendants gave contractual undertakings.[22]In early September 2010 Hydropool’s solicitors discovered that TXT Local had sent the texts in question via Vodafone, and accordingly that it would be possible to obtain disclosure of the relevant records from Vodafone even thought they had been deleted by TXT Local. Having obtained the Defendants’ consent to such disclosure, they duly obtained the records from Vodafone via TXT Local on 15 September 2010.[23]Hydropool’s unchallenged evidence is that analysis of the records shows that texts were sent to 649 mobile telephone numbers which appear in Hydropool’s database. By contrast, only 29 appear in the Hotspring UK database which the Defendants disclosed pursuant to Kitchin J’s Order. Furthermore, only 57 names in the Text List with names disclosed by the Defendants on 6 August 2010 appear in the records, and two of those are duplicates.[24]On 14 October 2010 the Defendants’ solicitors wrote the Claimant’s solicitors enclosing a draft fifth affidavit of John Roberjot which was sworn by him the following day. In this affidavit John Roberjot accepts that it appears that 649 text messages were sent to numbers which appear in Hydropool’s database. He blames Paul Roberjot for this. He does not dispute that Paul Roberjot must somehow have obtained these details from Hydropool’s database, but he says that Paul Roberjot did it without his knowledge. He maintains that he did not copy Hydropool’s database and says that he does not know how Paul Roberjot obtained the details. He says that he had agreed with Paul Roberjot that they would arrange for TXT Local to send the text message to “all the people on the Hotspring/Watkins database … together with the people on the Second Defendant’s own database and those people whose details Jack Weller had”. He admits that the “list of contact details” he supplied was “intentionally misleading”. He apologises to the Court, to Hydropool and to Hydropool’s solicitors for this.[25]John Roberjot gives the following explanation of his conduct:
“16. On 26 July I called TXT Local to ask that it send me the list of numbers to which the 711 text were sent and I spoke to someone who, as I recall, was called Marcus. Marcus told me that TXT local could not provide such details as it had been instructed by someone for the Second Defendant to delete the records of the numbers uploaded by Paul to which the texts were sent. 17. I realised that I would have to create the list of numbers to which the text had been sent, which I understood were the numbers contained on the Hotspring/Watkins database, the Second Defendant's database and those people whose details Jack Weller had. Paul and I had agreed that those were the numbers to which the texts would be sent and I still did not know that, contrary to our agreement, Paul had arranged for texts to be sent to numbers that apparently appear on the Claimant's database. 18. When I created the list from the numbers on the Hotspring/ [sic], the Second Defendant’s database and those people whose details Jack Weller had, I realised that there were only 659. I cannot be sure of this, but I believe this is correct. I was alarmed by this. Paul had sent the texts to 711 numbers and I had agreed to a court order to provide the list for 711 numbers. 19. I then did something very foolish and wrong, for which I apologise. I decided to use contact details on my mobile, some personal, some business, to make up the total to 711 telephone numbers, and to insert false names for many of them in the hope that the Claimant would not discover what I had done. ”
[26]There are at least two oddities about this explanation. First, the chronology appears to be wrong. As I have recorded above, the Defendants supplied the Text List to Hydropool on 21 July 2010. On John Roberjot’s account he only discovered that TXT Local had deleted the records of these numbers five days after this. Secondly, John Roberjot’s explanation for using the contact details from his own mobile telephone is his alarm at finding that he only had 659 telephone numbers rather than 711. As I have noted above, however, only 659 numbers were contained in the Text List. This discrepancy is something that John Roberjot had already purported to explain in his second affidavit, however.[27]Hydropool elected not to cross-examine John Roberjot on his fifth affidavit. Nor did Hydropool submit that the account given by John Roberjot in his fifth affidavit was untrue.[28]The present application was launched by Hydropool on 18 October 2010.

The alleged contempts

[29]A number of the allegations of contempt set out in Hydropool’s application notice were not pursued at the hearing and I shall say no more about them. The allegations that were pursued fall into two groups. The first group consists of allegations of non-compliance with mandatory provisions in the Orders of Kitchin and Floyd JJ. The second group consists of allegations that John Roberjot swore false affidavits.[30]Before proceeding further, I remind myself that the applicable standard of proof is the criminal standard: Hydropool must prove its allegations beyond reasonable doubt.

Absence of personal service of the Orders

[31]Since Hydropool contends that the Defendants have breached mandatory provisions in the Orders of Kitchin and Floyd JJ, a preliminary issue which arises concerns the failure of Hydropool personally to serve the Orders upon the Defendants.[32]RSC Order 45 (which continues to have effect by virtue of its inclusion in Schedule 1 to the CPR) rule 5 provides that, where a person required by an order to do an act within a time specified by the order refuses or neglects to do it within that time, then the orders may be enforced by an order for committal or a writ of sequestration. RSC Order 45 rule 7 provides, so far as relevant, as follows: “(2) Subject to paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless–(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act. (3) Subject as aforesaid, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in rule 5(1)(b)(ii) or (iii) unless– (a) a copy of the order has also been served personally on the officer against whose property permission is sought to issue a writ of sequestration or against whom an order of committal is sought; and (b) in the case of an order requiring the body corporate to do an act, the copy has been so served before the expiration of the time within which the body was required to do the act. … (5) With the copy of an order required to be served under this rule, being an order requiring a person to do an act, there must also be served a copy of any order or agreement under CPR rule 2.11 extending or abridging the time for doing the act and, where the first-mentioned order was made under rule 5(3) or 6 of this Order, a copy of the previous order requiring the act to be done. (6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either– (a) by being present when the order was made; or (b) by being notified of the terms of the order, whether by telephone, telegram or otherwise. (7) The Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.” (a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and (b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act. (a) a copy of the order has also been served personally on the officer against whose property permission is sought to issue a writ of sequestration or against whom an order of committal is sought; and (b) in the case of an order requiring the body corporate to do an act, the copy has been so served before the expiration of the time within which the body was required to do the act. (a) by being present when the order was made; or (b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.[33]Paragraphs (2) and (3) require personal service of the order in question. Paragraph (6) provides an exception to that requirement, but it is common ground that that exception is not relevant in the present case since the orders which are sought to be enforced are mandatory rather than prohibitory. It is also common ground, however, that, even though the orders are mandatory and so paragraph (6) does not apply, paragraph (7) gives the court a discretion to dispense with personal service, including retrospectively: see Davy International Ltd v Tazzyman [1997] 1 WLR 1256. This discretion is “wide and unfettered”, but nevertheless it is to be “exercised relatively sparingly”: Bell v Tuohy [2002] EWCA Civ 423, [2002] 1 WLR 2703 at [41] per Neuberger J (as he then was) and see also Jolly v Jolly [2000] 2 FLR 69 and Benson v Richards [2002] EWCA Civ 1402.[34]Counsel for Hydropool said that the failure personally to serve the Orders was an “oversight”. He submitted that it would be just to dispense with personal service since(a) the purpose of personal service was to ensure that the persons in question were aware of the terms of the order and of the consequences of disobeying it and(b) it was clear from the evidence and the surrounding circumstances that the Defendants, and in particular John Roberjot, were at all material times aware of the terms of the Orders of Kitchin and Floyd JJ and of the consequences of disobeying them.[35]Counsel for the Defendants agreed with counsel for Hydropool as to the purpose of personal service. He did not dispute that it was clear from the evidence and the surrounding circumstances that the Defendants had been aware of the terms of the Orders of Kitchin and Floyd JJ. He submitted, however, that Hydropool had not established that the Defendants were aware of the consequences of disobeying the Orders at the material times.[36]With some hesitation, I have concluded that it is just to dispense with personal service in the present case for the following reasons. The Defendants were represented by solicitors and counsel. The applications for the Orders were made on notice. The Defendants did not oppose the making of the Orders. They were clearly aware of the terms of the Orders. Both Orders bore clear penal notices on the first page spelling out the consequences of disobedience. John Roberjot could not have failed to read and understand those penal notices if he had read the Orders at all. There is no evidence that he did not read the Orders, and I am confident that he would have done. Furthermore, there is no evidence that the Defendants’ solicitors did not carry out their normal professional duty of explaining the Orders and the consequences of disobedience to John Roberjot, and I am confident that that they would have done so. The Defendants purported to comply with both Orders. In all the circumstances, I consider that it is beyond reasonable doubt that the Defendants were aware not only of the terms of the Orders, but also of the consequences of disobeying them. Furthermore, the breaches alleged are not trivial ones, nor is it suggested that they were committed inadvertently.

Alleged breach of paragraph 2(5) of the Order of Kitchin J

[37]Paragraph 2(5) of Kitchin J’s Order required John Roberjot to swear an affidavit setting out, in essence, what use the Defendants had made of the Information as defined in paragraph 2(1) of the Order i.e. Hydropool’s database or customer list. As stated above, John Roberjot purported to comply with this order by swearing his second affidavit.[38]Hydropool points out that the Defendants now accept that the details of 649 customers from its database were used by Paul Roberjot on behalf of Paramount to send the text messages. This information was not revealed by John Roberjot in his second affidavit. Hydropool accepts, however, that it cannot prove to the required standard that John Roberjot knew what Paul Roberjot had done at the time of swearing that affidavit. Hydropool nevertheless contends that the Defendants are in breach of the order because John Roberjot knowingly gave a false account in his second affidavit of the sources of the 659 numbers in the Text List, in particular in paragraphs 7 and 9.[39]In my judgment Hydropool has not established that the Defendants are in breach of this order. The order required the Defendants to disclose their use of the Information. Accordingly what matters is what they disclosed about their use of the Information, having regard to the state of their knowledge. In the case of Paramount, this means John Roberjot’s knowledge since Hydropool does not suggest that Paul Roberjot’s knowledge should be attributed to Paramount for this purpose. Hydropool has not established that John Roberjot had knowledge about the use of the Information at the time of swearing his second affidavit that he failed to disclose.[40]Furthermore, Hydropool has not established to the requisite standard that the account given by John Roberjot of the source of the 659 numbers in the Text List in his second affidavit was false to his knowledge. Hydropool relies upon the admissions made by John Roberjot in his fifth affidavit in this regard, but save in one respect the fifth affidavit does not contradict the second affidavit with regard to the sources of the 659 numbers in the Text List. The exception is with regard to the numbers obtained from Mr Weller’s spreadsheets: in the second affidavit John Roberjot say that the 659 numbers in the Text List did not include these, because he did not know at that time that Paul Roberjot had used numbers from that source; whereas in the fifth affidavit John Roberjot says the 659 numbers in the Text List did include these, because he had agreed with Paul Roberjot that they would use numbers from that source. In my judgment, however, this contradiction is not enough to prove beyond reasonable doubt that the account given by John Roberjot in his second affidavit on this point was false to his knowledge at the time that he swore it.

Alleged breach of paragraph 3(b) of the Order of Kitchin J

(b) of the Order of Kitchin J

[41]Paragraph 3(b) of Kitchin J’s Order required the Defendants to disclose a list of the recipients of the 711 texts. Hydropool’s first allegation is that the Defendants did not disclose a list of recipients on 21 July 2010, but only a list of telephone numbers. Hydropool submits that the order required the disclosure of the identities of the recipients. I accept that submission. Accordingly, I conclude that the Defendants did not comply with the order.[42]Hydropool’s second allegation is that the Text List was a concocted list rather than a genuine one. In my judgment, however, Hydropool has not established to the requisite standard that John Roberjot or Paramount knowingly supplied a false list on 21 July 2010. On John Roberjot’s account in his second affidavit, he believed that the text message had been sent to telephone numbers obtained from the Hotspring UK database and Paramount’s own database, but did not know that it had also been sent to numbers obtained from Mr Weller’s spreadsheets, and what was provided in the Text List was 659 telephone numbers compiled from those sources. On John Roberjot’s account in his fifth affidavit, he believed that the text message had been sent to telephone numbers obtained from the Hotspring UK database, Paramount’s own database and Mr Weller’s spreadsheets and what was provided in the Text List was 659 telephone numbers compiled from those sources. Although, as I have discussed, there appears to be an inconsistency between those accounts, on either basis John Roberjot provided what he believed at the time to be a true and complete list.

Alleged breach of paragraph (7) of the Order of Floyd J

[43]Paragraph (7) of Floyd J’s Order required the Defendants to provide a list setting out the names of the recipients of all 711 texts. Hydropool alleges that the Defendants failed to comply with this because the Text List with names supplied by the Defendants was, at least in part, a false list on John Roberjot’s own admission. Apart from the point on the absence of personal service which I have already dealt with, the Defendants do not dispute this allegation.

Alleged breach of paragraph (8) of the Order of Floyd J: the Paramount database

[44]Paragraph (8) of Floyd J’s Order required the Defendants to provide exact copies of all electronic and hard copy lists of customers or prospective customers. Hydropool alleges that the Defendants are in breach of this order because they have never provided any copy of Paramount’s own database i.e. the database referred to in paragraph 9 of John Roberjot’s second affidavit.[45]In a letter from John Roberjot on behalf of Paramount (then acting in person) to Hydropool’s solicitors dated 1 September 2010 John Roberjot stated that “the Paramount database has been disclosed to you within the text list”. This cannot be correct in the light of John Roberjot’s own evidence in paragraph 9 of his second affidavit, since he says there that the Paramount database contained about 150 contacts of which only about 100 were included in the Text List. In any event, the Text List is plainly not an exact copy of the Paramount database. Nor is the Text List with names.[46]John Roberjot went on in the letter to say that “we will disclose the same separately” provided that Hydropool’s solicitors confirmed their undertaking contained in Floyd J’s Order not to disclose it to their client. This confirmation was requested because Hydropool’s solicitors had previously inadvertently disclosed to their client some information which they undertaken not to disclose. Hydropool’s solicitors replied on the same day confirming that they would abide by the undertakings they had given.[47]Despite this, the Defendants did not supply a copy of the Paramount database. Indeed, at the time of the hearing, the Defendants had still not supplied a copy of the Paramount database. Accordingly, I conclude that this allegation is made out.[48]After the hearing, the Defendants did supply a copy of the Paramount database to Hydropool. Hydropool queried whether what had been supplied was an exact copy as required by the order given that the file had a creation date of 14 January 2011. In response the Defendants have provided an explanation for this, and have also provided a copy of the Paramount database made on 5 August 2010. Accordingly, it appears that the Defendants have now belatedly complied with the order.

Alleged breach of paragraph (8) of the Order of Floyd J: the Weller spreadsheets

[49]Paragraph (8) of Floyd J’s Order also required the Defendants to provide an exact copy of each of Mr Weller’s spreadsheets. As stated above, the Defendants purported to comply with this order by sending the email on 6 August 2010 attaching “soft copy of Jack Weller’s spreadsheets”.[50]Hydropool alleged in its application notice that the copies attached to the email were not exact copies of the spreadsheets. During the course of the hearing Hydropool abandoned this allegation in relation to the sales spreadsheet, but maintained it in relation to the service spreadsheet. The basis for the allegation is that properties of the Excel spreadsheet identify the author of the file as Paramount and its creation date as 22 July 2010. Accordingly, Hydropool contend that the copy supplied cannot be the copy purportedly used as a source of telephone numbers to which texts were sent on behalf of Paramount.[51]During the course of the hearing counsel for the Defendants stated on instructions, which he undertook on behalf of the Defendants would be verified on affidavit, that the explanation for the properties of the Excel spreadsheet was that the original file provided by Mr Weller was password protected. Since Mr Weller did not want to reveal the password, he had copied the spreadsheet into a new file.[52]Since the hearing John Roberjot has sworn a sixth affidavit confirming what counsel stated on instructions. He also states that he has sent to the Defendants’ solicitors to forward to Hydropool’s solicitors a copy of the original password protected spreadsheet and that the properties of that file identify the author as Andy Weller (Jack Weller’s father) and the creation date as 10 March 2007. These statements have not been contradicted by Hydropool.[53]Accordingly this allegation is not made out.

Alleged false affidavits

[54]Hydropool also alleges that the Defendants are in contempt of court by virtue of knowingly swearing false affidavits. Hydropool contends that both John Roberjot’s second affidavit (particularly paragraphs 7 and 9) and John Roberjot’s fourth affidavit (particularly paragraphs 2 and 3) were knowingly false.[55]The Defendants dispute that John Roberjot’s second affidavit was knowingly false. For the reasons I have already given, I am not satisfied that Hydropool has proved beyond reasonable doubt that John Roberjot knew that the account given in paragraphs 7 and 9 of his second affidavit was false at the time that he swore it.[56]The Defendants admit that paragraphs 2 and 3 of John Roberjot’s fourth affidavit were knowingly false. They further admit that this amounted to a contempt of court.[57]Counsel for the Defendants nevertheless submitted that it was not open to Hydropool to rely upon this contempt because it had not obtained the permission of the Attorney-General or the court as required by CPR rule 32.14. This provides:
“(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. (Part 22 makes provision for a statement of truth) (2) Proceedings under this rule may be brought only– (a) by the Attorney General; or (b) with the permission of the court.” (Part 22 makes provision for a statement of truth) (a) by the Attorney General; or (b) with the permission of the court.”
[58]In my judgment CPR rule 32.14 has no application to an allegation of contempt by knowingly swearing a false affidavit. The purpose of rule 32.14 is to enable proceedings for contempt to be brought in respect of false statements made in a document verified by a statement of truth, such as a statement of case, a disclosure statement or a witness statement. The requirement for such documents to be verified by a statement of truth was a procedural innovation introduced by the CPR. As Sir Richard Scott VC (as he then was) pointed out in Malgar Ltd v R.E. Leach (Engineering) Ltd [2000] FSR 393 at 395-396, a means for policing statements of truth was necessary and that is what rule 32.14 provides. In doing so, the CPR did not make any substantive change in the law of contempt. Whether the making of a false statement in a document verified by a statement of truth amounts to a contempt depends on the general law. He suggested that it would do if, but only if, the maker of the statement knew that it was false and the false statement was likely to interfere with the course of justice.[59]As Scott VC also pointed out, however, knowingly to swear a false affidavit has always rendered the maker liable to be prosecuted for perjury. This is because the affidavit includes a jurat. It is therefore the equivalent of testimony on oath. Although Scott VC did not say so, it has long been the case that knowingly giving false evidence, including swearing a false affidavit, is also a contempt of court: see Arlidge, Eady and Smith on Contempt (3rd ed) at 10-159 to 10-161. Nowadays it is unusual for false evidence to be the subject of contempt proceedings rather than a prosecution for perjury, but in principle the sanctions for contempt remain available in an appropriate case.[60]Counsel for the Defendants pointed out that John Roberjot’s fourth affidavit had included a statement of truth. In my judgment this makes no difference. It remains a sworn statement.[61]A question which arose during the course of the hearing was whether, if it was right that rule 32.14 was not applicable, there was any other procedural obstacle to Hydropool relying upon this contempt on the present application. As indicated at the beginning of this judgment, I gave both sides permission to make written submissions on this point. In the event only counsel for Hydropool did so.[62]As he submitted, swearing a false affidavit is properly categorised as a criminal contempt rather than a civil contempt. The High Court retains an inherent jurisdiction to punish criminal contempt by the summary process of committal in civil proceedings, albeit that this is a jurisdiction to be exercised with great caution: see Halsbury’s Laws (4th ed), volume 9(1), para 491. Accordingly, counsel for Hydropool submitted that there was no procedural obstacle to Hydropool relying upon this contempt. I accept that submission. Although the court will often refuse to commit a person purely for swearing false evidence, in the present case this contempt is(a) closely linked with the other, civil contempts relied on by Hydropool and(b) admitted by the Defendants. In these circumstances I consider that it was appropriate for Hydropool to bring the matter before this court: compare Attorney-General v Smith [2008] EWHC 250 (Admin) at [7]-[8] per Latham LJ.

Conclusion

[63]For the reasons given above, I conclude that Hydropool has established the following contempts on the part of the Defendants: i) breach of paragraph (3)(b) of Kitchin J’s order by failing to provide a list of recipients of the text message within the time specified; ii) breach of paragraph (7) of Floyd J’s order by knowingly providing a list of recipients of the text message which was partly false; iii) breach of paragraph (8) of Floyd J’s order by failing to provide an exact copy of the Paramount database within the time specified or at any time prior to the hearing; and iv) swearing a false affidavit, namely John Roberjot’s fourth affidavit.[64]Hydropool has not established the other contempts alleged.

Postscript

[65]Since this judgment was circulated to the parties in draft, Hydropool has served further evidence in support of its contentions that(a) the Text List supplied by the Defendants on 21 July 2010 had been concocted by John Roberjot and(b) the account given by John Roberjot in paragraphs 7 and 9 of his second affidavit as to the manner in which the Text List was compiled must have been false to his knowledge at the time he swore it. In response John Roberjot has sworn a further affidavit in which he says, in essence, that (a) he now accepts that the Text List supplied on 21 July 2010 included telephone numbers from his personal contacts, but (b) he did not appreciate that at the time for reasons which he explains. This evidence, if correct, goes at least some way to explaining the points discussed in paragraphs 26 and 40 above. My provisional view in the light of the new evidence is that I adhere to the conclusions set out above, but that is subject to any further submissions from either party.

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