Praxis Capital Ltd v Burgess [2015] EWHC 2631 (Ch)

Case No B30MA265[2015] EWHC 2631 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue MANCHESTER DISTRICT REGISTRY, Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Thursday, 14 May 2015
M60 9DJ
Before
HIS HONOUR JUDGE HODGE QC(Sitting as a Judge of the High Court)
Between
PRAXIS CAPITAL LIMITEDClaimantJACK BURGESSDefendant
Digital Transcript of Wordwave International Ltd trading as DTI8th Floor, 165 Fleet Street, London, EC4A 2DYTel No: 0207 404 1400; Fax No: 020 7404 1424Web: www.DTIGlobal.com; Email: TTP@dtiglobal.eu(Official Shorthand Writers to the Court)
MISS NAOMI ELLENBOGEN QC (instructed by Woodcocks Haworth & Nuttall) appeared for ClaimantMR DANIEL TATTON-BROWN (instructed by Bird & Bird LLP) appeared for Defendant
JudgmentThursday, 14 May 2015JUDGE HODGE QC:
[1]This is the expedited trial of a claim, issued on 26 February 2015 in the Manchester District Registry of the Chancery Division, seeking injunctive relief against the defendant, Mr Jack Burgess, relating to alleged breaches and anticipated breaches of a contract of employment and the defendant's duties of trust and confidence in relation to confidential information and post-termination restrictions.[2]The trial was originally set down on an expedited basis for hearing on two days this week. At a hearing before His Honour Judge Pelling QC (sitting as a judge of the Chancery Division) last Friday, 8 May, the trial was extended to three days. Despite sitting at 10 o'clock both yesterday and today, closing speeches only concluded at 1.15 this afternoon and I am delivering judgment at 2.15. Inevitably this judgment is less-polished than I would have liked, but the exigencies of the list in Manchester mean that I have no option but to deliver this judgment this afternoon.[3]The claimant is represented by Miss Naomi Ellenbogen QC and the defendant is represented by Mr Daniel Tatton-Brown (of counsel).[4]The claimant carries on the business of real estate investment management. The defendant, who is 30 years of age, was employed as an investment manager in the group of companies of which the claimant forms a part, initially by Praxis Real Estate Management Limited ("PREM"), with effect from 13 May 2013, and, with effect from 1 March 2014, by the claimant, Praxis Capital Limited. Both of those companies, and other companies within the Praxis Group, are owned by an Isle of Man company, Praxis Holdings Limited. That holding company, and the other companies within the Praxis group, are owned and controlled by a Mr Mark Harrison.[5]It is common ground that the defendant was fired by Mr Harrison during the course of a telephone conversation on Saturday 14 February 2015. With effect from 16 February 2015, he was placed on garden leave by a letter from the claimant's solicitors, Woodcocks Haworth & Nuttall. The defendant contends that he was constructively dismissed on 14 February and that he accepted such constructive dismissal by email of 18 February 2015. He therefore asserts that none of the post-termination restraints in his contract of employment are enforceable.[6]On the first day of the trial, I heard evidence from the four witnesses called by the claimant. There was to be evidence from a fifth witness, a Mr Gabriel McLaughlin, the head of asset management and a director of the claimant, and also a director of PREM. He had made a witness statement dated 22 April 2015 but at the conclusion of the evidence of the preceding four witnesses for the claimant, Miss Ellenbogen indicated that she no longer proposed to call Mr McLaughlin. That somewhat surprised Mr Tatton-Brown. He invited the court to infer that one of the reasons for that was that Mr McLaughlin is said by the defendant to have sent a supportive text message on 13 March 2015. The text message is to be found at page 313S of bundle A1 and consists of what appears to be a representation from a website, Stopworkplacebullies.com. The text of the representation from that website is:
"People don't leave bad companies, they leave bad bosses"
. The defendant invites me to infer that that is a reference to Mr Harrison and that Mr McLaughlin has not been called because the claimant did not wish to expose him to cross-examination by the defendant on that text message.[7]The first of the four witnesses from whom I heard was Mr Alex Henderson, a director of the claimant and the finance director of PREM. He had made three witness statements for the purposes of these proceedings, and he gave evidence before me for an hour and a half. Although one of the pleaded allegations against the defendant is that on 14 or 15 February he had attended at the claimant's premises and removed the laptop which the claimant had provided for his use, only returning the same when asked to do so at 1.30 on Monday, 16 February, Mr Henderson accepted that in fact the defendant had left the claimant's premises with his laptop at the end of the working day on Friday, 13 February and that he (Mr Henderson) could not say whether he had brought it back with him when he had returned to the office over the weekend of 14 and 15 February. All that Mr Henderson was able to say was that Mr Burgess had not left the laptop at the company's offices when he had returned over that weekend.[8]At paragraph 12 of his final witness statement for the trial of this claim, Mr Henderson had described the culture of the Praxis group as "aggressive, driven and uncompromising". He also agreed that only the strongest survived on the basis that they were a very high-performing business. But he said that the reality was that the Praxis group did not have a culture that was abusive or intimidating. He did not believe that Mr Burgess had been abused or intimidated by Mr Harrison, or any other employee or director of the Praxis group. Mr Henderson told me that he stood by the contents of that paragraph. He accepted that Mr Harrison used strong language, and aggressive language, in his emails; but he denied that he was abusive or intimidating. That was despite being referred to an email from Mr Harrison to Mr Burgess on 30 August 2014 at 1045, where he had commented upon an email attachment from Mr Burgess in these terms:
"This is a fucking disgrace. Worthless. Call me Monday. Best wishes, Mark Harrison, Chief Executive."
[9]Mr Henderson said that Mr Harrison was a strong personality, but he was not a dominating one. He said that the culture of the Praxis group came from the top, and that Mr Harrison acted with complete autonomy. He acknowledged that Mr Harrison had decided that Mr Burgess should have a 50 per cent increase in his salary, and also, at the end of 2013, that he should receive a bonus. Mr Henderson accepted that that showed that, at that time, Mr Burgess had performed well.[10]At paragraph 62 of his witness statement, Mr Henderson, referring to the use of confidential information by Mr Burgess, had asserted that the reality was that, if the claimant had not issued proceedings when it did, Mr Burgess had clearly intended to use, and would have used, confidential information that he had access to. Mr Tatton-Brown established that Mr Henderson relied in support of that assertion upon only three matters. They were:(1) the fact that Mr Burgess had accessed the claimant's drop box account and had tried to change its password on the morning of Monday, 16 February 2015;(2) that he had copied the entire contents of the work laptop provided for him by the claimant on 15 February, after his summary dismissal; and(3) Mr Henderson relied on emails disclosed by the defendant in the course of these proceedings. In closing, Mr Tatton-Brown emphasised that Mr Henderson had not referred to the expert witness report of the digital forensic examiner, Mr Peter Kelly, of Stroz Friedberg, dated 12 May 2015 or its previous draft.[11]In cross-examination, Mr Henderson accepted that the principal risk about which the claimant was concerned was that confidential deal information would be passed on to third parties. He accepted that the only evidence that the defendant had done this was in the emails. He acknowledged that they showed only that Mr Burgess was interested in investment opportunities, and not that he had passed any confidential information on. Mr Henderson accepted that Mr Burgess would have already had the vast majority of the information in the drop box on his laptop because, unknown to the claimant until this was disclosed by the defendant on 10 March 2015 in his pleaded Defence (at paragraph 30), it had not been known by the claimant that in fact on 15 February Mr Burgess had caused Currys, the well-known retailer of IT equipment, to copy the entire contents from the hard drive of Mr Burgess's laptop onto a personal laptop which he had purchased that afternoon.[12]The defendant relies upon that acceptance as indicating that there was no reason for Mr Burgess to have sought to change the password on the claimant's drop box if he had been simply seeking to obtain access to the claimant's confidential information because he had, by then, already secured that information on the newly purchased personal laptop. Mr Henderson also agreed that the attempt to change the password by Mr Burgess would have been discovered by the claimant. Indeed, Mr Harrison was later to describe the attempt by Mr Burgess to change the password to the drop box as "clumsy", although he used an adverb rather than an adjective. As will become apparent, I accept the defendant's submission that the attempt by Mr Burgess to change the password on the drop box account would have been a remarkably stupid thing to do if what Mr Burgess was seeking to do was to obtain the claimant's confidential information because this would rapidly have been discovered, as it was, by the claimant. I also accept that it was completely unnecessary, since Mr Burgess already had this information on his laptop.[13]Recognising the validity of these points, in closing, and as foreshadowed by her cross-examination of Mr Burgess, Miss Ellenbogen sought to argue that what Mr Burgess had had in mind was obtaining access to any further revised or amended or additional items of confidential information which might have been posted to the drop box. I regard this submission as entirely unrealistic, given that, because of the attempt to change the password, which would have come to the claimant's notice, there would have been no reason for the claimant or its employees to post any new information to that drop box account. The claimant would not have allowed its continued use knowing that Mr Burgess had attempted to change the password to it. Moreover, if he had been successful, it is doubtful that anyone at the claimant would have been able to obtain access to that drop box account in any event to post any new material to it.[14]Mr Henderson was taken to most of the emails disclosed by the defendant (with one exception) upon which reliance was placed by Mr Henderson in support of the assertion at paragraph 62 of his witness statement. He accepted that the emails relied upon in relation to the Dagenham East industrial development (at bundle B2, pages 677 to 680) did not show that Mr Burgess was seeking to involve himself in securing that property which (it would appear) had been acquired by AXA without any involvement from the defendant. Mr Henderson was right to accept that. I am entirely satisfied that the subject of those emails was a lady called Erin, who was Mr Burgess's cousin, and who was on work experience with a Mr Jay Sidparu whilst he was still working at Darling Associates Architects.[15]A further email from Mr Sidparu to Mr Burgess dated 23 March 2015 (at bundle B2, page 711) was sent to Mr Burgess's email account at the claimant, to which by then Mr Burgess no longer had any access, rather than to Mr Burgess's personal Hotmail email account. That itself indicates that there had been no contact between Mr Burgess and Mr Sidparu after Mr Burgess's summary dismissal on 14 February 2015 and I so find. Reference was made to other emails at bundle B2, pages 696 to 7 and bundle B2, page 693. I should say that I find nothing sinister about any of those emails. I find that they are no evidence that Mr Burgess was seeking to become involved in proposed investments in Royal Arcade, Crewe, or in possible investment opportunities in either Scunthorpe or Maghull, Liverpool. On analysis, I do not find that Mr Henderson's evidence was supportive of the case by the claimant against the defendant.[16]The next witness for the claimant was Mr Mark Harrison himself. Before coming to that, I will deal with the claimant's other two witnesses.[17]The claimant's third witness was Mr Gary Roberts. He was the director and head of capital markets for the claimant. He had made two witness statements, and he gave evidence before me from about 3.10 to about 3.35 on the afternoon of day one of the trial. At paragraph 12 of his witness statement, Mr Roberts dealt with the culture of the Praxis group and of the property industry in general. He said that he had been involved in an around the property investment industry for nearly 10 years. The reality was said to be that in certain forums, swearing was commonly used to accentuate an individual's point across the industry, including within the larger corporate entities. He said that it would be common to hear bad language, jocular behaviour and ribbing of colleagues. Whether that was right or wrong, it was said to be commonplace. The culture within the Praxis group was said to be no different to the culture within the industry generally. He referred to the witness statements of Mr Harrison and Mr Henderson where they addressed the culture when it came to performance, and he said he agreed with this.[18]I found Mr Roberts to be something of an apologist for Mr Harrison and as someone who was seeking to defend his behaviour. He was, however, prepared to accept that he (Mr Roberts) had complimented Mr Burgess on his business style, saying on one occasion that he had been extremely impressive. When it was put to him by Mr Tatton-Brown that he had not mentioned this in his witness statement, Mr Roberts said that there was no reason why he had not mentioned it and that he was not here to be unpleasant to Mr Burgess. The acceptance of Mr Burgess's good performance was welcome but it would have been slightly more impressive if it had been included within Mr Roberts's witness statement itself. His failure to do so indicates the partisan nature of his evidence.[19]Mr Roberts said that he could not comment one way or the other on whether the Dagenham emails were supportive of the claimant's case that the defendant had been misusing the claimant's confidential information to divert the Dagenham opportunity away from the claimant. Mr Roberts said that the email did not either support or deny what Mr Burgess might have been doing.[20]The claimant's fourth, and final, witness of fact was Miss Elizabeth Howarth, who was Mr Harrison's personal assistant. She had made one witness statement, and she gave evidence for about 15 minutes, between 3.35 and 3.50 on the afternoon of day one. She was asked whether she had told Mr Harrison that Mr Burgess was hypersensitive to Mr Harrison's comments and she said that she had not done so. That was because she said that she had presumed that Mr Harrison would be aware of that fact because they spoke all the time.[21]Miss Howarth's evidence is relevant because it was she who spoke to Mr Burgess on the afternoon of Saturday, 14 February to tell him that the scheduled appraisal with Mr Harrison on the following Monday, 16 February, in Monaco had been cancelled because of Mr Burgess's failure to submit his completed appraisal form in time. I need to put the events leading up to that in context.[22]On Tuesday, 10 February at 11.36, Mr Harrison had emailed Mr Burgess saying:
"Make sure I get your appraisal form by close of business Friday please. No appraisal form, no appraisal."
At 11.39 Mr Burgess emailed back saying simply: "Understood." The appraisal form can be found at bundle B3, pages 996 through to 999. It is headed "Performance and development review" and is intended to highlight the respondee's key successes and anything he wants to work on. It is said to be just a summary to help the respondee, and an opportunity to have an open and meaningful conversation with his manager to share feedback on his performance.[23]There are performance review guidelines at bundle B3, pages 1000 to 1002. Mr Burgess did not submit his appraisal form duly completed by close of business on Friday, 13 February. In answer to a question from the Bench at the end of his evidence, Mr Burgess told me that he had had a lunch meeting with Mr Sidparu at 1 o'clock on that Friday, but he said that that had not in any way inhibited him in completing the form. He told me that he had only been at lunch for an hour so it had not been an extensive get-together. He was only one of three investment managers who still remained with the claimant, and he was carrying the weight of identifying new opportunities. He said that having lunch was not a problem; it had simply been the pressure of other work. Mr Burgess made no attempt to contact Mr Harrison to tell him that he was going to be late with his appraisal or to seek to agree any other time for lodging it.[24]Having heard nothing from Mr Burgess, Mr Harrison emailed Miss Howarth at 1.49 pm UK time on Saturday 14 February. His email simply read:
"Jack didn't send his appraisal form per my explicit instructions. Can you advise him that Monday is cancelled. If the flight is not refundable, he pays."
Miss Howarth then contacted Mr Burgess by phone and told him of the cancellation of the appraisal in Monaco the following Monday.[25]There are two matters in dispute between Mr Burgess and Miss Howarth as to the terms of that telephone conversation. The first is whether Miss Howarth told Mr Burgess that, if the flight was not refundable, he would have to pay for it. Mr Burgess recalls she did. Miss Howarth's evidence was that she did not believe that she said that. She said that she noted it when she received Mr Harrison's email but she needed to see if the flight was refundable. If it was, there would be no issue. That was why she says she did not tell Mr Burgess. On that point I prefer the evidence of Miss Howarth to that of Mr Burgess. I accept the logic of her thinking. There was no reason why she should have to tell Mr Burgess that he would be paying for the flight if it was refundable. She says that she did not mention anything about the flights. She accepts that Mr Burgess asked her:
"Does the cancellation of the appraisal mean that he was being fired?"
She said that she had no idea. That was not the message that she had been asked to give him. She said that Mr Burgess tried to tell her the reason why he had not submitted the appraisal form: it was because he had been working long hours. She did not remember the precise order of the conversation, but she did remember what was said during the course of it. She was clear that she did not tell Mr Burgess to call Mr Harrison.[26]Again, on that I accept her evidence. There is no suggestion in the emails she had received from Mr Harrison that he would wish to speak to Mr Burgess, and the fact that he was asking Miss Howarth to contact him would have suggested to her that he (Mr Harrison) had no wish to speak to Mr Burgess himself. Miss Howarth said that she was surprised that Mr Burgess had not submitted the appraisal form in time. It had been obvious that he needed to do so in order to have the appraisal. She pointed out that she had submitted hers at least a day or two before her own appraisal meeting. It was put to Miss Howarth that Mr Harrison was prone to fits of temper or aggressiveness. She acknowledged that she had seen him annoyed with someone once, although that person was not someone who worked for Praxis. She was asked about whether she was fearful of losing her job, or annoying Mr Harrison, and she said that the worst thing that could happen would be for her to lose her job, and that she was not concerned about that. She said that she was never too scared to leave her job. Again I accept that. I accept that Miss Howarth's evidence was not in any way influenced by any fear of Mr Harrison.[27]That brings me to the claimant's second witness, Mr Harrison himself. He is the Chief Executive Officer of the claimant company and effectively its owner and controller, as with the other companies in the Praxis group. Mr Harrison gave evidence before me for about an hour and a half, starting at 12.20 on the early afternoon of day one and concluding at about 2.50 on that afternoon. Mr Harrison had made one witness statement. At paragraphs 12 to 13 of that witness statement, Mr Harrison also addressed the culture of the Praxis group and the property industry in general. He said that a lot had been made by Mr Burgess in the statements brought before the court as to the robust language that had been used on occasion by Mr Harrison in emails. Mr Harrison said he did not propose to dwell at length on that issue, as he believed that it was nothing more than a cynical sham, intended by Mr Burgess to divert the court's attention away from the substantive issue. It was said to be a preposterous claim, as Mr Burgess well knew.[28]Mr Harrison said he had worked in the real estate industry for 30 years. Expletive language was said to be commonly used in his business, as in many others, to accentuate a point or by way of general banter. It was fair to say that the culture of the Praxis group was aggressive, driven and uncompromising. It was said to be a results-orientated business, focused on absolute performance and, as such, only the strongest and most capable characters survived. He did not, however, accept that the culture of the business was in any sense abusive or intimidating.[29]Having observed Mr Harrison in the witness box, and having read the various documents put to him, I am satisfied that Mr Harrison uses robust, inappropriate, uncontrolled and offensive language to people with whom he comes into contact. That is generally, and not just in relation to Mr Burgess. Examples can be found at bundle B2, pages 471, 592 and 478. I find that Mr Harrison's management style is that of an absolute monarch, controlling and making every important decision, and with no insight into the effect his brusque approach may have upon his subordinates. I find his emails to be short, blunt and offensive. I accept Mr Burgess's description of him as "incredibly aggressive and confrontational". Working with him must be like living in Nepal must be at the present time, waiting for the next earthquake or aftershock, or like walking through a minefield.[30]Mr Harrison accepted that he had sent the emails of which Mr Burgess complains, and that none was general banter. He accepted that he was embarrassed to read emails like that in the present context; but he said that they had been sent to everyone and that they were commonplace. On not a single occasion had Mr Burgess suggested that he had been offended, still less intimidated or bullied. That accusation was one which had been manufactured after the event and involved rewriting history. Mr Harrison said that, if he had had a serious concern, he (Mr Burgess) should have raised it. He also made the point that Mr Burgess had used similar language in return. Mr Harrison said that, had he raised a complaint, he (Mr Harrison) would have taken it seriously and that he (Mr Harrison) was not a bully by nature; indeed, he would have been mortified if it had ever been suggested that he was bullying. No-one had ever done that, whether inside or outside Praxis. It seems to me that Mr Harrison really has no insight into his behaviour, or the effect that such behaviour, from someone in such a dominating position within the group, can have on his subordinates.[31]It was put to Mr Harrison that he had used racist language. It is not for me to use such a pejorative term in relation to Mr Harrison. When the email at bundle B1, page 473 was put to Mr Harrison - an email in which, when Mr Burgess had said that he just had a detailed run through with Walid Nazir, who was the director of planning and regeneration for Birmingham City Council, Mr Harrison had simply responded: "I have zero interest in a deal the success of which depends on the support of a man called Walid. Best wishes." - Mr Harrison explained that his response had been rooted in what he described as a genuine concern over ethnically dominated council planning committees. His experience was that, where a local authority had a planning committee which was heavily ethnically biased, his experience had been that he would be on the receiving end of “bizarre outcomes”. He said that local authorities that have heavy Asian individuals are very difficult to deal with and secure a viable planning consent from. He went on to say that his best friend was black and that his best friend at school had been Asian and that he was not a racist. He said that the email did not reflect a racist view, and that the suggestion that it did was egregiously offensive and desperate in the extreme.[32]What is clear from his evidence is that Mr Harrison is prepared to stereotype people on the basis of their ethnicity. Whether that qualifies as a racist attitude is for others to judge. Mr Harrison said that, taken out of context, the emails that were put to him, and which are relied upon by Mr Burgess, were intemperate and embarrassing, but he did not regret them and he considered them to be entirely appropriate for their time and place. He denied that he was intimidating or bullying, although he accepted that Praxis was a difficult place to work.[33]When it was put to Mr Harrison that the 50 per cent increase in his salary that Mr Burgess had received at the beginning of 2014 reflected his performance, Mr Harrison would not accept this. He said that it reflected Mr Burgess's “promise” rather than his ability or his performance. I do not accept this part of Mr Harrison's evidence. I do not believe that he would reward promise in that way if Mr Burgess had not been performing. I find that Mr Harrison was prone to exaggerated statements, critical of Mr Burgess. He denied having referred to Mr Burgess as an "independent profit centre" and he said that Mr Burgess had never made a penny of profit for the business. He had not created a pound of value from the day he started to the day he left. His performance was zero from the day he arrived to the day he left. He continuously over-performed and under-delivered. He continuously lied and deceived, and Mr Harrison said that his faith in him had been misplaced. I note the force of those criticisms of Mr Burgess. I find them to be entirely unjustified. They reflect Mr Harrison's extremist views.[34]When asked about the language Mr Harrison had used when he dismissed Mr Burgess on the afternoon of 14 February, Mr Harrison denied having used the expletive attributed to him by Mr Burgess. He said that he would certainly not have used that word because his four year old son was in the same room. It was his birthday. It is unnecessary for me to make any express finding on whether the expletive was used when firing Mr Burgess. If Mr Harrison's son was in the room, and if Mr Harrison was able to control himself sufficiently in the light of that, then it is unlikely that he would have used the expletive; but I am not sure that Mr Harrison is able to display such a degree of self-control.[35]Mr Harrison gave evidence about the conversation with Mr Burgess on the afternoon of 14 February. He had sent his email to which I have already made mention to Miss Howarth. He then received a telephone call from Mr Burgess which he (Mr Harrison) declined. Mr Burgess had then sent Mr Harrison an email, timed at 4.21, saying:
"I've just left you a voicemail. Please can we discuss Monday."
Mr Harrison's immediate response at 4.27 was:
"I am busy and have no interest in discussing anything with you this weekend. You were told explicitly, in terms that a sub-normal child could clearly understand that no appraisal form by Friday equals no appraisal on Monday. You elected to disregard that exhortation thus Monday is cancelled. I fear you have over-estimated the dimensions of my patience."
[36]Mr Harrison said that he had sent him that short email to make his position very clear. He then said that he had rejected six phone calls in a row and answered on the seventh. He said that it was a one-sided phone call. He was not prepared to engage Mr Burgess in a conversation. His evidence as to that is at paragraph 47 of his witness statement. Mr Harrison said that it was his son's birthday party and he had better things to do. When Mr Burgess called Mr Harrison again, for the seventh time in quick succession, Mr Harrison said that he lost patience and answered the phone. In a very terse conversation he said:
"Right Jack, I can think of no other reason why you would keep calling me when I specifically instructed you not to call me except that you want to be fired, so get your way, you're fired. I will be in touch with you next week."
[37]Mr Burgess's account of the conversation is pleaded at annexe 2 to his Defence. It is much more detailed. In her closing submissions, Miss Ellenbogen submitted that the level of quoted detail was unusual. In his cross-examination, Mr Burgess had said that he had not recorded the conversation but that he recalled it, and that the conversation had lasted a minute and 55 seconds.[38]In his first witness statement all that Mr Burgess had said about it was:
"In fact, Mr Harrison simply told me that I was fucking fired and hung up."
In the annexe to his Defence numbered 2, Mr Burgess gave a much more detailed account of the conversation:
"MH: 'right, you've got through to me now. What do you want?' JB: 'Hi Mark, I spoke with Lizzie earlier and wanted to talk to you about Monday.' MH: 'Listen, I told you in simple terms an idiot would understand that I wanted your appraisal by Friday.' JB: 'I understand that but I was working until the early hours of Thursday night to circulate the pro-formas.' MH: 'Do you listen? I told you I wanted it on Friday, and now you're calling me and dragging me from my family on a Saturday. I told you in terms a sub-normal child would understand that I wanted it on Friday.' JB: 'I'm sorry, Mark but I am doing absolutely everything I can. I can go back and circulate it later today. All of my transport has been booked.' MH: 'You don't fucking listen do you? I'm running out of patience with you, no appraisal form, no appraisal.' JB: Please can we not cancel Monday, I can get it to you later today.' MH: 'In fact, you know what … I've fucking had enough of you, you're fired."
[39]Like Miss Ellenbogen, I find that level of detail to be surprising. I am satisfied that Mr Burgess is genuinely trying to reconstruct the terms of what must have been an extremely distressing conversation. What is noteworthy, and supports the view I have formed in relation to Miss Howarth's evidence, is that there is no suggestion by Mr Burgess, even in this full account, that he said anything about Mr Harrison having said that Mr Burgess would have to pay for the cost of the flight to Monaco if it was not refundable. There is no suggestion also that it was Miss Howarth who had told Mr Burgess to telephone Mr Harrison. Both accounts, however, make it clear that Mr Harrison told Mr Burgess that he was fired. Mr Harrison says that he concluded by saying that he (Mr Harrison) would be in touch with Mr Burgess next week.[40]I do find that that was said because that is what the claimant's solicitors did on Monday, 16 February. Of the two accounts, I prefer Mr Harrison's, for the simple reason that I consider that the conversation is likely to have been more brusque and to the point than Mr Burgess's note would suggest. I do not, however, find that Mr Burgess has deliberately manufactured a false account of the conversation. What I do find is that Mr Burgess has incorporated within it elements of points that he might have wished to make, or which he would have expected Mr Harrison to have made. It does not, in the event, really matter. Both accounts are clear that Mr Harrison is firing Mr Burgess there and then.[41]Finally so far as Mr Harrison's evidence is concerned, Mr Harrison was asked whether he accepted that there was no wrongdoing involved in the email exchanges between Mr Burgess and Mr Sidparu. Mr Harrison would not accept that:
“Certainly I do not accept that there was anything innocent about it. The wording is unambiguous and clear. It strongly suggests that Mr Burgess has met with and colluded with others.”
Later he said that the email at page 711 of bundle B2 implied that Mr Burgess was going into business with Mr Sidparu:
“It was impossible to construe from this email what his business plan was, but the email suggests that they were trying to form some sort of business alliance.”
He acknowledged that it did not matter what Mr Burgess did provided he did not use proprietary information stolen from Praxis's business.[42]It seems to me that Mr Harrison is putting far more weight upon the emails that they can truly bear, and that that is indicative of his approach to Mr Burgess and to this litigation generally.[43]Finally, I turn to the evidence of Mr Burgess. He is 30 years of age. He had made five witness statements, and he gave evidence for about five hours and 20 minutes, between 10 o'clock in the morning and 4.30 in the afternoon of day two.[44]Miss Ellenbogen subjected Mr Burgess to a sustained and detailed, probing and assertive cross-examination for over five hours. Despite this, I am satisfied that she made no serious inroads into his evidence. I am satisfied that Mr Burgess was an honest and, on the whole, a reliable witness who was genuinely seeking to assist the court. He spoke directly and openly to the court without dissembling. He acknowledged at the beginning of his cross-examination that he had acted foolishly in causing the hard drive of his work laptop to be copied on 15 February; but he said - and I accept, despite Miss Ellenbogen's submissions to the contrary - that Mr Burgess had done it for good reason. He had never previously left a company in these circumstances. He knew that Mr Harrison regarded those who were not in his team as his personal enemies. I accept Mr Burgess's evidence that he wanted to have his emails in order to defend himself because he knew that Mr Harrison was prone to litigation and to fits of temper. I accept that that is consistent with Mr Harrison's bullying and abusive behaviour.[45]Mr Burgess would not have had time to trawl through all of his company emails to identify those which might be of assistance in litigation. I say that bearing in mind the point that Miss Ellenbogen made in her closing that Mr Burgess had previously copied the contents of his work laptop hard drive at the time he had previously been dismissed in October 2014. I accept Mr Burgess's evidence that he did not appreciate at the time that the Currys’ data transfer would extend to the entire contents of his work laptop hard drive.[46]I also accept that Mr Burgess sought to change the password to his company drop box in order to secure continued access to its contents, including personal photographs. He did so in the knowledge that this attempt to change the password would come to the claimant's knowledge. He told me that he knew that there was an email account linked to the drop box and he knew that that email account would be monitored. Mr Burgess did so also in the knowledge that all of the contents of the drop box were already on his laptop. He accepted that in retrospect it would have been a better idea to have opened a new drop box account. I reject the suggestion that he sought continued access to the drop box in order to obtain access to amended documents. He told me that he had not anticipated that there would be any such amended documents, since the pro formas had been circulated only on the previous Thursday, 12 February, and the deal sheets on the Friday, 13 February. I accept that it was unrealistic to expect any further or amended deal sheets or pro formas to be posted to this particular drop box after his dismissal, and certainly after he would have been known to have been seeking to change the drop box password.[47]I find that there was nothing inappropriate about Mr Burgess's use of his personal Hotmail email account. Based on his experience the previous October, Mr Burgess reasonably anticipated that the claimant would cut off his access to his company email account. There was never any suggestion to Mr Burgess in cross-examination that he had been planning a move to any other specific investment management company. I accept that Mr Burgess was open with the claimant in paragraph 30 of his Defence in revealing, for the first time, something of which the claimant had previously been unaware, namely that he had copied the whole of his hard drive onto his new personal laptop. I reject Miss Ellenbogen's suggestions that Mr Burgess has been dissembling in his evidence.[48]His first witness statement was rushed. I accept Mr Burgess's evidence as to the circumstances in which, as the digital forensic examiner has concluded, the most recent deal sheet was copied onto the USB flash memory device. That was addressed at paragraph 43 of Mr Burgess's fifth witness statement. Having indicated that he had first contacted Bird & Bird to take legal advice on Monday, 16 February, he referred to his decision to switch legal advisers and directly instruct Ben Williams of Kings Chambers, based in Manchester. At paragraph 43 Mr Burgess said:
"I first instructed and spoke to this barrister on the evening of 25 February 2015 and during that conversation, he advised me to collate documents which were likely to be relevant to my case. I prepared and sent emails and documents to him in the afternoon of 26 February, which is when the Deal Sheet was transferred to the lost USB drive."
[49]The evidence is that that transfer took place at between 12.16 and 1.04 on the afternoon of 26 February 2015. I acknowledge that that is before Mr Burgess had received notice of these proceedings. That was only contained within an email sent at 15.53 on the afternoon of 26 February. But I accept Mr Burgess's evidence that he had already been collating evidence in advance of that indication that legal proceedings were on foot; and I accept his reasons for copying the 13 February deal sheet onto the USB memory device. Had there been any sinister motivation underlying this, I consider that such copying would have been undertaken much earlier, and also that an attempt would have been made to cover Mr Burgess's tracks. I find that Mr Burgess has made no use of any confidential information, and this despite the fact that Mr Burgess knew that the claimant was not aware that he had had the entire hard drive of his work laptop copied onto his new personal laptop until Mr Burgess himself disclosed this on 10 March 2015. I accept Mr Tatton-Brown's submission that this is clear evidence that mis-use was not any part of Mr Burgess's intentions. I find that the claimant has not, on the evidence, established that Mr Burgess ever considered himself free to make use of this information, and that there is no real or arguable risk of its use by Mr Burgess, or of its disclosure to any third party.[50]At this point it is perhaps appropriate to address the nature of the confidential information alleged by the claimant. In her closing submissions, Miss Ellenbogen identified three classes of confidential information. The first were the pro forma property documents and investment memoranda. These were designed to attract investment for specific properties. The second class was what had been described in connection with the interim injunctive relief as "Praxis secondary material, the supporting documentation". Miss Ellenbogen acknowledged that one could not be certain of the full extent of the material that Mr Burgess has in this regard or its precise contents. The third were the deal sheets. Miss Ellenbogen described these as a valuable compilation, in a single database, of material which transcended the value of its component parts.[51]I find that the information which had been collected together in the property pro formas and deal sheets was the claimant's valuable and confidential information, although I also find that it does not fall within the category of “trade secrets”. The value and confidentiality of the information is evidenced by the email of 5 September 2014 (at bundle B1, pages 497 to 498). There, it was said by Mr Harrison that, in general and across the board, information should only ever be shared/disclosed to anyone on a need to know basis:
"Our business is as much information as it is property"
. It is also evidenced by Mr Roberts's email of 8 December 2014 at B2, page 634. There, in an email to Mr Burgess and Mr Harrison complaining that pro forma production appeared to have stalled, Mr Roberts commented that such information was going to be crucial to fundraising.[52]In his evidence, Mr Burgess would not accept that such information was confidential, although he accepted that he would not discuss it with, or pass it on to, third parties. He also accepted that his former employer, Schroders, would have been concerned if its corresponding information had been passed to Praxis. The confidentiality and value of the information is evidenced by the email exchange of 16 January 2015 (at bundle B2, pages 636 to 637). There Mr Michael Harrison's son, Richard, had emailed Mr Burgess saying that an accounts manager, Charles, had wanted a copy of the deal sheet. Mr Burgess was asked if he had a problem with Mr Richard Harrison sending it to him. Mr Burgess's response was:
"Hold fire for now. Not sure Mark Harrison would want this so worth asking him direct. As you know it is a highly valuable tool for us and usually kept in the circle."
Mr Burgess also accepted that it had never been intended to share pro formas with third parties. They were intended for commercial investors. Indeed, pro formas were marked "Commercially sensitive - for internal purposes only". I do not accept Mr Burgess's evidence that that is “mere puff”.[53]I accept that the deal sheets and pro formas were the claimant's valuable and confidential information. I accept Miss Ellenbogen's submission that the value of the compilation in a single database transcends the value of its component parts. But I do not accept that the pro formas and deal sheets were in the category of “trade secrets”. I will come to the conclusions that flow from that towards the end of this judgment.[54]Returning to Mr Burgess's evidence, I accept that Mr Harrison had made his views clear to Mr Burgess at the outset; but I also accept that Mr Harrison had not made it clear how extreme they were. I accept Mr Burgess's evidence that, had he known, he would have been concerned. I accept that Mr Burgess found Mr Harrison's way of expressing himself in writing a huge surprise. Mr Burgess told me that he had tried not to allow Mr Harrison's abusive conduct to get to him, but that eventually he had found it too much.[55]Mr Burgess was taken by Miss Ellenbogen to Mr Burgess's own email of 5 March 2014 (at B1, 352-3) as evidence of a racist attitude on Mr Burgess's part. However, I find that the difference between this email and Mr Harrison's earlier email of 8 July 2014 (at B1, page 473), of which I have already made mention, is that Mr Burgess's email is founded upon his experience of a particular individual whilst Mr Harrison's email is based upon a perceived ethnic stereotype. When his email had been put to him, Mr Burgess had said that Garinder, the individual mentioned in his email "had not looked at previous bids favourably". His email comment was founded upon his previous experience of dealings with Garinder, which had not been favourable. Mr Burgess accepted that he should not have used a very offensive term in his email of 16 January 2015 to George Hardcastle; but Mr Burgess made the point that he had been expressing empathy towards a friend and not conveying criticism towards a subordinate, as had been the purport of some of Mr Harrison's emails.[56]Mr Burgess said that his attitude to inappropriate language was all determined by context. He regretted using the language he had in the email at bundle B2, 623 of 12 December 2014; but Mr Burgess emphasised that that language had not been direct or threatening, and that it had been less an expression of frustration on his part than a fear of Mr Harrison's reaction to what had happened when a surveyor had missed a flight. However, Mr Burgess did accept that he should not have written an email in those terms.[57]Mr Burgess denied that he was never offended by any of Mr Harrison's language, pointing out that for an employer to use such language to threaten an employee was entirely different from its use between friends or indeed fellow rugby players. I accept the validity of that distinction. I accept that Mr Burgess found emails such as that of Mr Harrison of 11 July 2014 (B1, page 478) offensive. In that email, Mr Harrison had said to Mr Burgess:
"Fuck me, it's Friday and you issued the deal sheet. Everything okay. Nail salon closed."
Mr Burgess had responded:
"Nail salon was open. Hairdresser was shut."
And he then gave an account of Abraham Lincoln's road to the White House. Mr Harrison's response was to enquire whether that was Mr Burgess's way of telling Mr Harrison that it was going to be 30 years before Mr Burgess did a deal.[58]I accept that Mr Burgess found Mr Harrison's initial email about the nail salon offensive and that Mr Burgess had felt obliged to reply in the same vein. I find that an answer that Mr Burgess gave to a question from the Bench at the end of his evidence is instructive. I took Mr Burgess to the email of 10 February 2015 (at B2 page 681) where, in relation to a particular asking price, Mr Burgess had commented:
"Fucking Neanderthals"
. Mr Burgess's response was that, at times he had felt obliged to engage in the same use of language as he had to assure Mr Harrison that he was - and then having paused for thought -he said - "to gain favour from him". Mr Burgess said he had done that on very limited occasions. He pointed out that the email had been sent very late at night (at 9.36 pm) and that he regretted doing that. He said that he should have had the strength of character not to engage in the way that Mr Harrison did, and that he (Mr Burgess) regretted sending that email.[59]I find that Mr Burgess was subjected to considerable abuse over a sustained period of time, although I acknowledge that Mr Harrison did praise him on occasion, as in the email at B1, page 366. I find that Mr Harrison did have concerns about Mr Burgess's performance, as evidenced by emails at B2 at pages 572, 597 and 657. Nevertheless, Mr Harrison had awarded Mr Burgess a £3,000 to £5,000 bonus at the end of 2013 and also a 50 per cent pay rise in early 2014, from £60,000 to £90,000. Clearly, at least in his earlier period of employment, Mr Burgess had not been consistently under-performing.[60]Despite Miss Ellenbogen's strenuous and probing cross-examination, I accept Mr Burgess's explanation for all of the emails relied upon as incriminating by the claimant. Those are the emails at bundle B2, pages 691, 693, 696, 679 and 711. I find that those emails, on analysis, are all entirely innocent. I note that all but 711 were disclosed by Mr Burgess from his own Hotmail account. Having disclosed those emails, I can understand why Mr Burgess should have seen no need for him to give full disclosure of his Hotmail account, still less for it to be subjected to any form of forensic examination; that would have been expensive, intrusive and entirely unnecessary.[61]I accept that there is no way that Mr Burgess could have sought to expropriate the Maghull deal, or any other deal, to himself; and I accept that he made no attempt to do so. I reject the suggestion, in cross-examination, that he was trying to position himself to deal in the property investment market, whether directly or through some third party. The email from Mr Sidparu, which was sent to Mr Burgess's Praxis email account and not his personal Hotmail account at page 711, and which was disclosed by the claimant, clearly shows no contact with Mr Sidparu after Mr Burgess's dismissal on 14 February. On analysis, and in the light of Mr Burgess's explanations - which I accept - there is not a shred of evidence that he has diverted any of the claimant's business to himself, or that he has even sought to do so. I accept that he has never tried to divert any opportunity away from the claimant. I accept his evidence that he has been open and honest, and that he has acted honourably, albeit at times foolishly. He has been met with litigation prosecuted almost to the point of persecution, and directed to causing Mr Burgess as much hardship and financial difficulty as the claimant could.[62]Again those findings of fact, I turn to consider the defendant's case that he was constructive dismissed by the claimant.[63]Mr Tatton-Brown has addressed the law on constructive dismissal at paragraphs 3 through to 14 of his written closing submissions. The starting point is that the test for constructive dismissal is whether the employer's actions or conducted amounted to a repudiatory breach of the contract of employment. The relevant term of that contract is the implied term that the employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Any breach of this implied term of trust and confidence will amount to a repudiation of the contract. That is because it is calculated or likely to destroy or seriously damage the employment relationship. The test of whether there has been such a breach is objective. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents.[64]The repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence, although the final straw may be relatively insignificant. It must not be utterly trivial. The law is not concerned with very small things.[65]Mr Tatton-Brown has drawn my attention to what has been said by Newman J in the case of Horkulak v Cantor Fitzgerald [2003] EWHC 1918 Ch; [2004] ICR 697. He has drawn my attention to paragraphs 18, 70 and 77. Mr Tatton-Brown has also drawn my attention to what is said at paragraph 40. Miss Ellenbogen makes the point that that was a case in which an employee was asserting constructive dismissal, and not by way of defence to a claim for breach of contract or breach of confidence. She emphasises that all of the features of the relationship, and of Mr Burgess's own conduct, need to be taken into account; and she drew my attention to what was said by Newman J at the end of paragraph 37 of his judgment. There it was recorded that the claimant in that case had been sufficiently concerned to consult the head of human resources for guidance.[66]Mr Tatton-Brown makes the point that, since there was no effective control on Mr Harrison (who Mr Henderson had described as acting with complete authority) there had been no-one effectively to whom Mr Burgess could complain. Miss Ellenbogen referred me to the terms in which Mr Burgess had expressed his acceptance of the alleged repudiatory breach by the claimant of the terms of his contract of employment. That was in his email of 18 February at 703. At the top of page 704, Mr Burgess had said that throughout his employment he had been forced to endure an environment which had been based on intimidation and bullying. On a number of occasions he had received email messages and telephone calls from Mr Harrison in which he had used vulgar and threatening language. Recent examples were said to have included referring to Mr Burgess as "cock" "fucker" and "fucking idiot". That was said to be not a position that Mr Burgess should, or was able to, accept any longer.[67]Later on, having referred to the events of the Saturday afternoon, Mr Burgess made the point that it was worth noting that that was not the first time that he had been fired only for Mr Harrison subsequently to change his mind. Mr Burgess also referred to the requirement in his contract of employment clearly stating that the employer must deliver written notice of termination of his employment. That had not happened. The company was said not to have provided him with a termination date, which he believed was required. He did not, therefore, accept that the company had served valid notice of the termination of his employment, and on that basis he remained employed as before. Nevertheless, the abhorrent treatment of Mr Burgess over a sustained period had been unacceptable and had tested his resolve to the limits. Saturday's telephone conversation was said to have represented the final straw and to have destroyed what little trust and confidence remained between the company and Mr Burgess. That was said clearly to go to the very heart of his employment relationship, and Mr Burgess believed that Mr Harrison's conduct amounted to a repudiatory breach of his employment contract. The letter should therefore be treated as written notice that Mr Burgess accepted the company's repudiatory breach and thereby terminated his employment with immediate effect.[68]Miss Ellenbogen made the point that there had only been three emails which can be identified which could have fulfilled the description of “recent examples” identified in Mr Burgess's email of 18 February. Miss Ellenbogen made the point that that email had clearly been written after Mr Burgess had taken legal advice, which he said he had taken from Bird & Bird on the previous Monday, 16 February.[69]Mr Tatton-Brown relies on the various matters set out in particular at paragraphs 7 through to 14 of his written closing. He submits that objectively the conduct in question is likely seriously to have damaged the relationship of trust and confidence between Mr Burgess and the claimant. I find that Mr Harrison's way of expressing himself to Mr Burgess was, on occasion, and sometimes typically, offensive and forthright; but I do not find that that way of expressing himself is equivalent to the types of conduct which have been held to constitute a repudiatory breach of the relationship of trust and confidence inherent in an employment relationship. Even accepting that Mr Burgess may have at times allowed himself to be drawn in to similar ways of expressing himself, and that at times he felt obliged to engage in the same use of language in order to gain favour with Mr Harrison, nevertheless, I am not satisfied that it is of sufficient gravity to have amounted to a repudiatory breach of the employment relationship.[70]I also have to bear in mind the context against which the email of 18 February was written. That was Mr Burgess's summary dismissal on the afternoon of 14 February. Mr Harrison had been quite clear, in perfectly polite emails, as to what he had expected of Mr Burgess. Mr Burgess had been told in terms that he was to make sure that Mr Harrison got his appraisal form by close of business on Friday, and he was told what the consequence of failing to do so would be, namely no appraisal form, no appraisal. That email was in perfectly polite terms. It was perfectly clear, and Mr Burgess had indicated that he had understood. Despite that, he failed to do so. No matter what pressure he was under at work, that failure was, I find, inexcusable, particularly in the context of Mr Burgess having gone off for lunch with Mr Sidparu on the afternoon of the final day for submission of the appraisal form.[71]Mr Burgess told me in evidence that he had not even looked to see what was required of him in terms of completion of the appraisal form, and that by Saturday afternoon he had not even embarked upon the exercise of producing it. In those circumstances, I can understand why Mr Harrison sent his email to Miss Howarth, telling her to advise Mr Burgess that the Monday appraisal was cancelled. Miss Howarth did not, I find, invite Mr Burgess to contact Mr Harrison. She did not, I find, tell him that he was going to have to pay for his flight if its cost was not refundable. Mr Burgess attempted to contact Mr Harrison by telephone and left a voicemail message. He then sent an email asking for them to discuss Monday. Mr Harrison replied in terms which I cannot criticise, saying:
"I am busy and have no interest in discussing anything with you this weekend. You were told explicitly in terms that a sub-normal child could clearly understand, that no appraisal form by Friday equals no appraisal on Monday."
Mr Burgess had elected to disregard that exhortation, thus Monday was cancelled. The concluding comment was:
"I fear you have over-estimated the dimensions of my patience."
Notwithstanding that clear indication, I accept Mr Harrison's evidence that there were then six unanswered phone calls. Mr Harrison then picked up the telephone on the seventh occasion. He should not have had to do so. Mr Burgess must have realised that he was over-exhausting the dimensions of Mr Harrison's patience. He knew what sort of man Mr Harrison was. Even if I were to accept Mr Burgess's account of the telephone conversation - which, as I have said, I do not, preferring Mr Harrison's version - I see nothing amiss with the way in which Mr Harrison approached the matter, beyond the use on two occasions, according to Mr Burgess, of an expletive. I have already indicated that I do accept that Mr Harrison indicated that he would be in touch on Monday. His solicitors were.[72]I do not, in all the circumstances, consider that there was a repudiatory breach of contract on the part of the claimant in those circumstances. Had I found that there was a repudiatory breach of contract, I would have followed the decision of the House of Lords in General Billposting Company Limited v Atkinson [1909] AC 118. I share the reservations of Phillips LJ (as he then was), as expressed in the case of Rock Refrigeration v Jones [1997] ICR 938 at pages 958A to 960B, as to the correctness of the reasoning in the General Billposting case. But it is not for a judge at first instance to decline to follow a House of Lords' decision and to prefer dicta of a single judge in the Court of Appeal, however eminent and however ascendant his later career may have been. Whilst noting Miss Ellenbogen's challenge to the correctness of the General Billposting principle, I would have followed it. But in the light of my conclusion on the constructive dismissal issue, it is unnecessary to do so.[73]True it is a month's written notice was formally required to determine Mr Burgess' employment with the claimant; true it is that the claimant's solicitor's letter of 16 February, since it ran from 14 February, did not give a full month's written notice; but I do not regard that of itself as a repudiatory breach of contract. Had the formal deficiency and shortness of notice been pointed out, I am sure that that would readily have been corrected. It did not amount to a repudiation of the contract of employment.[74]Likewise, if the 18 February email was not a valid acceptance of a repudiatory breach of contract, it does not seem to me that the later Bird & Bird letter of 9 March (at bundle C, page 1123) could amount to a valid acceptance of a repudiatory breach. The basis of the later letter of 9 March was that the claimant's solicitor's response to the email of 18 February (on 19 February at bundle C, page 1093) itself amounted to a repudiation of the contract of employment. Mr Tatton-Brown focused upon the denial that Mr Harrison's language had been used in an intimidatory and bullying manner towards Mr Burgess, and also that the other matters set out in the Woodcocks' letter as true facts were not in fact true facts. I do not consider that asserting matters as true facts in the context of a dispute is capable of amounting to a repudiatory breach of a contract of employment. So the upshot is that Mr Burgess remained bound by the terms of his contract of employment, including the post-termination restraints.[75]Mr Tatton-Brown addresses the post-termination restraints at paragraphs 16 to 19 of his written closing. Before I turn to those paragraphs, it is appropriate to refer to what Miss Ellenbogen had to say on the subject at paragraphs 29 through to 32 of his written opening. She accepts that post-termination restraints are void and unenforceable as being in unlawful restraint of trade unless they are no more onerous than is reasonably necessary to protect the employer's legitimate business interests. She refers to the principles to be applied, as summarised in TFS Derivatives Limited v Morgan [2005] IRLR 246. She submits that, viewed in the light of those principles, the covenants are clearly enforceable. There is said to be a wealth of evidence from both parties as to the confidential information to which the defendant had access during his employment. In any event, she says that the material in question is self-evidently confidential and in the nature of a “trade secret”. I have already indicated that I accept that it is valuable confidential information, but not that it is in the nature of a “trade secret”. She submits that the duration of the restraints is supported by Mr Roberts's evidence.[76]Mr Tatton-Brown submits that no attempt has been made to discharge the burden of proving that the post-termination restraints are enforceable.[77]I approach the matter by reference to paragraph 5 of the prayer for relief in the Particulars of Claim (at bundle A page 21). An injunction is first sought for nine months after 14 February, that is to say until 14 November 2015, to restrain Mr Burgess from soliciting or endeavouring to entice away from the claimant the business of a “restricted client” with a view to providing goods or services to that restricted client in competition with any “restricted business” (as defined in the employment contract).[78]Mr Tatton-Brown submits that the covenants concerning restricted clients are irrelevant. There is no evidence about them, and no allegation or evidence that the defendant threatens to deal with them or seek to entice them away from the defendant. They are said to be a very small number of institutional and ultra-high net worth investor clients, including a telecoms billionaire.[79]Mr Tatton-Brown submitted in closing that, even if there had been no constructive dismissal, the covenants relating to restricted clients had no potential utility, and that, because of the claimant's preponderance to issuing contempt proceedings, it would not be appropriate to make any injunctive order with a penal notice enforceable by committal. He submitted that there was no evidence of any threat to infringe this particular post-termination restraint. He made the point that there had been no attempt to enforce the post-termination restraint on the interim application.[80]I accept Mr Tatton-Brown's submissions. I am not satisfied that there is any evidence before the court of any threat, or any real or arguable risk, of the defendant soliciting or endeavouring to entice away from the claimant the business of any restricted client. Given the way in which Mr Harrison conducts the claimant's business, and the way in which this litigation has been conducted, it would be oppressive to enforce that restriction by way of injunction. In the exercise of the court's discretion as a court of equity, it should not seek to do so when there is no threatened breach of that post-termination restriction. Moreover, the objective of the relevant post-termination restraint is directed to soliciting or endeavouring to entice away investment business. I accept Mr Burgess's evidence that he was not involved in fundraising. He was concerned with the acquisition of property investments, not in identifying investors to invest in those properties. That reinforces my view that no useful purpose would be served by granting an injunction in the terms of paragraph 5(a) of the prayer for relief.[81]So far as paragraph 5(b) is concerned - offering to employ or engage or otherwise endeavour to entice away from the claimant any restricted person - there is not a shred of evidence that Mr Burgess has sought to do so or would seek to do so. Again, I refuse injunctive relief in those terms. Paragraph 5(c) of the prayer for relief seeks an injunction to restrain the defendant from at any time representing himself as connected with the claimant in any capacity. Here there is some, albeit very limited, evidence that, even after his dismissal on 14 February, Mr Burgess was representing himself as still connected with the claimant. In an email sent to Olly@bdo.bh on the evening of Sunday, 15 February, Mr Burgess described himself as currently running the investment platform at Praxis, the UK's top performing fund. I accept Mr Burgess's explanation that this was an email written simply in response to an introduction. At that stage, although he had formally been dismissed, his period of notice was still running, even though he had not yet formally been placed on garden leave. I do not consider that that is a sufficient indication that Mr Burgess would, after this litigation, represent himself as connected with the claimant in any capacity. The grant of injunctive relief again is not justified.[82]Paragraph 5(d) seeks an injunction until 14 October 2015 (presumably that should be 14 November) restraining the defendant from being involved in any capacity with any business concern which is or intends to be in competition with any restricted business. In my judgment, that is a restraint against competition which is unreasonable in all the circumstances. I accept Mr Tatton-Brown's submission that this covenant is plainly too wide. It seeks to prevent the defendant from working in the industry in which he has been engaged. It could have been couched in much narrower terms. The mischief which it seeks to achieve is apparently that of preventing Mr Burgess from seeking to exploit, for himself or third parties, investment opportunities relating to particular projects of which he had become aware whilst working for the claimant. That could have been adequately addressed by a covenant preventing him, for a limited period of time of (say) nine months, from seeking to exploit on his own behalf, or on behalf of a third party, any investment opportunity of which he had become aware during a period of (say) two years leading up to the termination of his employment. Such a restriction would have been significantly less restrictive than the non-compete covenant which the claimant seeks to enforce. It prevents the defendant from being involved in any capacity with any business concern which is, or intends to be, in competition with any restricted business.[83]Mr Tatton-Brown referred me to the observations of Haddon-Cave J at paragraphs 214 and 215 of QBE Management Services (UK) Limited v Dymoke [2012] EWHC 80 (QB); [2012] IRLR 458. The court is entitled to consider whether a covenant of a narrower nature would have sufficed to protect the employer's position. Mr Tatton-Brown acknowledges that it is only if the court finds that a much less far-reaching covenant would have afforded adequate protection that it is likely to regard the existing restriction as unreasonable. He acknowledges that the exercise is not a marginal one. In the present case, I accept Mr Tatton-Brown's submission that this is not a marginal case. There could have been a much more appropriately and narrowly couched restriction which would have achieved the legitimate business aim, and vindicated the business interest, which the claimant seeks to protect. I would therefore refuse an injunction in the terms of paragraph 5(d) of the prayer for relief.[84]The injunction sought at paragraph 5(e) of restricting the defendant, until 14 November, from being involved in the provision of goods or services to, or otherwise having business dealings with, any restricted client in the course of any business concern which is in competition with any restricted business, should not be imposed because I am satisfied that there is no evidence of any threat or likelihood of the defendant engaging in such conduct given the nature of the restricted clients and the fact that he was not involved in the money-raising side of the claimant's business.[85]So for those reasons, I would reject the claim for injunctive relief in support of the post-termination restraints.[86]So far as the confidential information is concerned, Mr Tatton-Brown has taken me to the observations of Arnold J in the case of Force India Formula One Team Limited v 1 Malaysia Racing Team SDN BHD [2012] EWHC 616 (Ch) at paragraph 230. There it was said to be:
"… clear that a covenant against post-employment use of confidential information is unenforceable as being in restraint of trade in so far as it purports to prevent the ex-employee from using for his own benefit or that of a subsequent employer information which has become part of his general skill, knowledge and experience…Thus, in the absence of a restrictive covenant in the strict sense, the position of an ex-employee is the same whether his contract contained an express confidentiality clause or only an implied term, namely that he can only be restricted from using information which is a trade secret or akin thereto."
[87]I have already held that, although valuable commercial information, the deal sheets and pro formas are not “trade secrets”, or akin thereto. They are a valuable and confidential tool but no more than that. The position is that all such confidential information as the defendant had has been surrendered up to the claimant. In response to an enquiry during the course of his closing submissions, Mr Tatton-Brown indicated that his client would be prepared to hand over the USB memory stick containing the deal sheet should that ever come to light.[88]In the course of her closing, Miss Ellenbogen referred me to observations of Swift J in the case of Eurasian National Resources Corporation v Judge [2014] EWHC 3556 (QB) at paragraph 78. There it was said that the applicable test is whether there is a real or arguable risk of disclosure of confidential information. I am satisfied, for the reasons I have given during my review of Mr Burgess's evidence, that there is no real or arguable risk of disclosure of confidential information, even if that expression were to bear a wider meaning than that held to be applicable by Arnold J as being confined to “trade secrets”. In those circumstances, it does not seem to me to be appropriate to grant any relief in relation to confidential information beyond recording that, if the USB memory stick ever comes into the defendant's possession, he will deliver it up to his solicitors for onward transmission to the claimant's solicitors, no doubt after having ensured that any privileged or personal information, not relevant to the position of the claimant, has been deleted from that memory stick. For those reasons, I am satisfied that there is no ground for granting any relief in relation to confidential information. There is absolutely no evidence to suggest that the defendant has ever made any use of confidential information and therefore there is no basis for directing any enquiry as to damages in that regard.

Cited in 1 later judgment