“……….. 1. PREFACE ……. 1.2 To enable a security system to be recognised within the Requirements for Security Systems it must comply with the Policy on Police Response to Security Systems and a recognised standard or code of practice controlling manufacture, installation, maintenance and operation. Such standards must be in the public domain and not be product based. 1.3 The installation and services provided by the installing company and an Alarm Receiving Centre (ARC) / monitoring / tracking centre (e.g. RVRC, SOC), shall be certified by a United Kingdom Accreditation Service (UKAS) accredited certification body in accordance with the provisions of the Requirements for Security Systems. …… 2. GUIDANCE, ADVICE AND PROCEDURES 2.1 Type A - Remote Signalling Systems. 2.1.1 Systems terminating at a recognised ARC, Remote Video Response Centre (RVRC) for CCTV and System Operating Centre (SOC) for vehicle tracking. All centres must conform to BS 5979 (Cat II) or BSEN 50518. 2.1.2 Unique reference numbers (URNs) will be issued to systems at these recognised centres. In the case of stolen vehicle tracking systems the URN will be issued by police forces to the operating company or monitoring centre, not to each vehicle. ……. 2.3. LIST OF COMPLIANT COMPANIES INSTALLING TYPE A SECURITY SYSTEMS 2.3.1 To identify companies conforming to this Policy it is necessary for each Police Force to hold a list of policy compliant companies. Inclusion on the list does not amount to confirmation that the company or its work has been inspected by the Police. Only companies so listed may install, maintain and/or monitor Type A Systems in the particular Police area. Where a company loses police recognition under this policy, its existing customers will have 90 days in which to make alternative maintenance/monitoring arrangements. …….. 3 OPERATIONAL TACTICS 3.1 POLICE ATTENDANCE- Type A Security Systems 3.1.1 For Type A security systems there are two levels of police response. LEVEL 1 – Immediate It should be noted that police response is ultimately determined by the nature of demand, priorities and resources which exist at the time a request for police response is received. LEVEL 3 – Withdrawn No Police attendance, keyholder response only. 3.1.2 The police service has adopted the use of confirmed alarm technology as part of the effort to reduce false calls. 3.1.3 All new Intruder and Hold up Alarms (HUA) applications will only qualify for a URN and police response if installed to the current required standards... ……. 3.2 INTRUDER ALARM SYSTEMS 3.2.1 Intruder alarm systems (IAS) issued with a URN will receive LEVEL 1 response until three false calls have been received in a rolling 12 month period. 3.2.2 Following two false calls in a rolling 12 month period the customer will be advised, in writing, with a copy being forwarded to the maintaining alarm company informing them of the situation and recommending urgent remedial action. 3.2.3 Following three false calls in a rolling 12 month period LEVEL 3 will apply and police response will be withdrawn, not less than 14 days from the date of the Withdrawal letter. The customer will be advised in writing with a copy to the maintaining company, who will be required to instruct the ARC/RVRC not to pass alarm messages to the police. ……..”
“….. The claimants conduct has been marred by duplicity, at the time of their employment and to a degree it has to be said in the way they have given their evidence at this hearing….. ….. I hesitate to do so, but I conclude that at times the claimants have not been completely honest in the way that they’ve engaged with this tribunal…. there has not been complete honesty and integrity in the way that they have presented their cases at the tribunal hearing. ….. The claimants claims of constructive dismissal I conclude, regretfully but I do, are contrived from a series of events largely, if not manufactured, certainly manipulated by the claimants [f]or their own commercial or financial advantage. They are indeed, and again no criticism [is made of] them, they are indeed unsentimental entrepreneurs…. But unsentimentally in business is no concession to contrive a dismissal for their own commercial and entrepreneurial advantage, and that, I regret, is what has occurred. Again, to repeat, I am not so naïve as to think either side in this highly competitive, highly emotional toil, are free of criticism on any level…. But also, and more particularly, whatever the conduct of the respondent, the claimants did not respond with their resignations in that context. They responded now I’ll find, a little late, as part of an overall plan to part ways with the respondent, for whom they had worked for some time. The claimants, I conclude resigned their long standing posts with the respondent as a critical step in them developing their own business, [D3], in competition with the respondent. I conclude therefore that the claimants willing severed their relationship with the respondent in circumstances which if not wholly contrived were opportunistic to pursue their fledgling business model and at the same time create an opportunity of the claim we now find before us. The claimants’ response is not credible, measured against the real circumstances of their employment environment. That is to say the history of their relationship with the respondent amongst it that juxtaposition of basic requirements of their employment, and more particularly the claimants’ manipulation of their own company, [D3], to maximise their financial and business future opportunities. Those I find, were the very personalised bones and for the claimants’ own benefit rather than any accommodation of the respondent’s business. Whatever the genesis of [D3] as to whether they were asked to set it up or whether it was a mutual decision, I think the claimants knew full well that there were huge advantages for them, sometimes not entirely legal or straightforward. In setting up the company and funnelling their funds and income and resources through it, and also as a platform for development of their own future business goals, namely as an accredited installer of [home] security….. …….. ……. That overall was their strategy, they basically looked for and ultimately gained an opportunity to offer their resignation in circumstances where dare I call it “The Grand Plan” had already been laid. The grand plan which had already been made, and I think had been made some time before either 27th or the 4th July, was a plan to leave more or less imminently and to compete directly with the respondent with the advantage of not simply their experience with the respondent’s company, but the knowledge of the respondent’s operations in exactly the same field and also their knowledge of the customer base which of course they had. That plan I think had been formulated and set in motion well in advance of the final meeting to which I’ve referred, and by the time of Lee Hoskin’s and Ranjit Dhillon‘s pressure on the second claimant, I think there was an element of pressure in the context of negotiation, Mr Ranjit Dhillon unashamedly described himself as a hard negotiator, well he’s a businessman, and that would be part of his stock in trade. …… …….. The actions and their actions on the 4th July although I accept not wholly scripted, of course there’s an element of preplanning. It was nevertheless in essence of role-play on their part which I think was well rehearsed in their minds at least, and it wasn’t a genuine response to a fundamental breach of their contract of employment. ………. I concluded that any perception of threats to life or limb or to general safety from Ranjit Dhillon was imagined rather than real, and think at times deliberately hyped and imagined…. ……… ……….[RD] was certainly not making death threats or threats of harm to either claimants and there was no basis for the claimants to reasonably perceive that there was any threat to their personal safety or indeed that certain words or actions had been used to convey such a threat. I think they have used that phrase and overall perhaps quite hard-nosed demeanour of Mr Dhillon to conjure up a threat that never really existed at all. ………. The claimants I think had certainly made a decision well before the final meeting of the 4th July, to depart the company and to pursue their own business interests….. their resignations were already well calculated I think as part of the joint venture that they now proposed to embark upon, and there was evidence which I have no reason to doubt that the claimants had cleared their desks, there was certain evidence that boxes had been removed by them from the premises…… ……… However, in the context of their relationship with the respondent, over the last couple of years at least they were duplicitous in their conduct. Their self seeking and unashamedly ambitious goals were themselves [a] breach of the good faith which they owe to the respondent as employees….. ……”
“[19.] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20.] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”
“[14] In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.”
“[41.] The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority….is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
“included but weren’t limited to, the reporting of the daily figures to the National Manager and Directors including late night sales results, daily staff meetings, training, appraisals, customer telephone confirmations, customer complaints, data management, staff recruitment, department payroll, resolving declined customer card payments, record keeping, marketing strategy, liaising with other departmental managers, reporting to the National Sales Manager, referencing for ex-employees, disciplinary action, liaising with courts when required and many other duties as and when they arose.”
“It is good practice to have a data sharing agreement. Data sharing agreements set out the purpose of the data sharing, cover what happens to the data at each stage, set standards and help all the parties involved in sharing to be clear about their roles and responsibilities. Having a data sharing agreement in place helps you to demonstrate you are meeting your accountability obligations under the UK GDPR.”; iv) As part of gifting the data, Steve handed over to D1 hard copy sheets each including the name, address and telephone number of 60 contacts. When D3 moved premises some 6 months after it started trading, D1 decided not to retain copies of the data sheets, although no reference to them is made in the list of documents as having once existed but no longer being in the defendants’ control; v) Any leads generated from the gifted data were not recorded separately, since there was no need to do so. The security advisers, Martyn Wright and Charlie Flint, were simply notified by text of the name and address of the prospective customer and of the time of the arranged appointment. The security advisers did not apparently need also to know in advance why they were attending the appointment and what the identified/expressed needs of the prospective customers actually were e.g. the installation of a new system or the transfer of an existing system from another provider. To do otherwise, D1 claimed, ran the risk that the security adviser would potentially pre-judge the particular sales opportunity; and vi) In the event that a sale was then secured by the security adviser from any such lead, D1 would text the engineer a list of what work needed to be done. Whilst D1 accepted that it would perhaps have been easier if a standard form work sheet had been completed by the security adviser to be forwarded to the engineer, she preferred texting the engineer herself, who would then source the necessary equipment from a trading warehouse in Birmingham. “direct marketing by leaflet and doorstep marketing”
“……There are also some things that are important for me to know: 1. You say that “following your Mother’s interest in our Monitored Home Security Services”
“[1.] ……….. It is brought by three companies within the Weiss Technik group ……… against four former employees (the individual defendants) and the company SJJ System Services Limited (SJJ), which was set up by one of those employees, Mr Jones, when he left Weiss. [2.] The claim is, essentially, that Mr Jones established SJJ by taking large swathes of confidential Weiss information and software, which he used to compete with Weiss. The claimants say that the other defendants, i.e. Mr Davies, Mrs Whitfield and Mr Oram, then continued to provide Mr Jones and SJJ with confidential information from Weiss either at Mr Jones' request or voluntarily, before they left Weiss at various different times to work for SJJ. They then (the claimants say) continued to use Weiss's confidential information after they had joined SJJ.”
“Breach of confidence Legal principles [113.] It is well-established that an obligation of confidentiality may arise either under the express or implied terms of a contract, or as an equitable obligation. ………. [115.] The seminal case of Faccenda Chicken v Fowler[1987] Ch 117 confirms that confidentiality obligations will also typically be implied in an employment relationship where necessary, in circumstances summarised at pp. 135–138: “(2) In the absence of any express term, the obligations of the employee in respect of the use and disclosure of information are the subject of implied terms. (3) While the employee remains in the employment of the employer the obligations are included in the implied term which imposes a duty of good faith or fidelity on the employee. For the purposes of the present appeal it is not necessary to consider the precise limits of this implied term, but it may be noted: (a) that the extent of the duty of good faith will vary according to the nature of the contract (see Vokes Ltd v Heather, 62 R.P.C. 135); (b) that the duty of good faith will be broken if an employee makes or copies a list of the customers of the employer for use after his employment ends or deliberately memorises such a list, even though, except in special circumstances, there is no general restriction on an ex-employee canvassing or doing business with customers of his former employer … (4) The implied term which imposes an obligation on the employee as to his conduct after the determination of the employment is more restricted in its scope than that which imposes a general duty of good faith. It is clear that the obligation not to use or disclose information may cover secret processes of manufacture such as chemical formulae …, or designs or special methods of construction … and other information which is of a sufficiently high degree of confidentiality as to amount to a trade secret. The obligation does not extend, however, to cover all information which is given to or acquired by the employee while in his employment, and in particular may not cover information which is only “confidential” in the sense that an unauthorised disclosure of such information to a third party while the employment subsisted would be a clear breach of the duty of good faith … (5) In order to determine whether any particular item of information falls within the implied term so as to prevent its use or disclosure by an employee after his employment has ceased, it is necessary to consider all the circumstances of the case. We are satisfied that the following matters are among those to which attention must be paid: (a) The nature of the employment. Thus employment in a capacity where 'confidential' material is habitually handled may impose a high obligation of confidentiality because the employee can be expected to realise its sensitive nature to a greater extent than if he were employed in a capacity where such material reaches him only occasionally or incidentally. (b) The nature of the information itself. In our judgment the information will only be protected if it can properly be classed as a trade secret or as material which, while not properly to be described as a trade secret, is in all the circumstances of such a highly confidential nature as to require the same protection as a trade secret eo nomine … (c) Whether the employer impressed on the employee the confidentiality of the information. Thus, though an employer cannot prevent the use or disclosure merely by telling the employee that certain information is confidential, the attitude of the employer towards the information provides evidence which may assist in determining whether or not the information can properly be regarded as a trade secret … (d) Whether the relevant information can be easily isolated from other information which the employee is free to use or disclose. In Printers & Finishers Ltd v Holloway [1965] R.P.C. 239, Cross J. considered the protection which might be afforded to information which had been memorised by an ex-employee. He put on one side the memorising of a formula or a list of customers or what had been said (obviously in confidence) at a particular meeting, and continued, at p. 256: 'The employee might well not realise that the feature or expedient in question was in fact peculiar to his late employer's process and factory; but even if he did, such knowledge is not readily separable from his general knowledge of the flock printing process and his acquired skill in manipulating a flock printing plant, and I do not think that any man of average intelligence and honesty would think that there was anything improper in his putting his memory of particular features of his late employer's plant at the disposal of his new employer.' For our part we would not regard the separability of the information in question as being conclusive, but the fact that the alleged “confidential” information is part of a package and that the remainder of the package is not confidential is likely to throw light on whether the information in question is really a trade secret.” [116.] As for equitable confidentiality obligations, the classic statement is that of Megarry J in Coco v AN Clark (Engineers)[1968] FSR 415 , p. 419: “In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself … must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.” [117.] The first of those conditions was pithily described by HHJ Waksman QC in McGill v The Sports and Entertainment Media Group[2014] EWHC 3000 (QB) at §148 as encompassing “information which is not generally available to others and which the possessor does not wish to be generally available”. [118.] The second of the Coco v AN Clark conditions will apply where the receiver of the confidential information knows or should know that the information is confidential. That may be the case not only where confidential information has been disclosed in breach of an obligation of confidence, but also where confidential information innocently comes into the hands of the receiver, who should nevertheless know that it is confidential: Lord Goff in AG Observer (the Spycatcher case)[1990] 1 AC 109 , p. 281D–F. [119.] The principle was expressed by the Supreme Court in Vestergaard v Bestnet[2013] UKSC 31 ,[2013] RPC 33 as follows: “The classic case of breach of confidence involves the claimant's confidential information, such as a trade secret, being used inconsistently with its confidential nature by a defendant, who received it in circumstances where she had agreed, or ought to have appreciated, that it was confidential”. [120.] As to the third requirement for a detriment arising from the use of the confidential information, use can be established in a wide variety of ways, including not only examining the material and making copies of it, but also deliberately setting out to obtain material known to be confidential. In Tchenguiz v Imerman[2010] EWCA Civ 908 ,[2011] 2 WLR 592 , Lord Neuberger MR said that: “68. If confidence applies to a defendant who adventitiously, but without authorisation, obtains information in respect of which he must have appreciated that the claimant had an expectation of privacy, it must, a fortiori, extend to a defendant who intentionally, and without authorisation, takes steps to obtain such information. It would seem to us to follow that intentionally obtaining such information, secretly and knowing that the claimant reasonably expects it to be private, is itself a breach of confidence. … Legal principles “(2) In the absence of any express term, the obligations of the employee in respect of the use and disclosure of information are the subject of implied terms. (3) While the employee remains in the employment of the employer the obligations are included in the implied term which imposes a duty of good faith or fidelity on the employee. For the purposes of the present appeal it is not necessary to consider the precise limits of this implied term, but it may be noted: (a) that the extent of the duty of good faith will vary according to the nature of the contract (see Vokes Ltd v Heather, 62 R.P.C. 135); (b) that the duty of good faith will be broken if an employee makes or copies a list of the customers of the employer for use after his employment ends or deliberately memorises such a list, even though, except in special circumstances, there is no general restriction on an ex-employee canvassing or doing business with customers of his former employer … (4) The implied term which imposes an obligation on the employee as to his conduct after the determination of the employment is more restricted in its scope than that which imposes a general duty of good faith. It is clear that the obligation not to use or disclose information may cover secret processes of manufacture such as chemical formulae …, or designs or special methods of construction … and other information which is of a sufficiently high degree of confidentiality as to amount to a trade secret. The obligation does not extend, however, to cover all information which is given to or acquired by the employee while in his employment, and in particular may not cover information which is only “confidential” in the sense that an unauthorised disclosure of such information to a third party while the employment subsisted would be a clear breach of the duty of good faith … (5) In order to determine whether any particular item of information falls within the implied term so as to prevent its use or disclosure by an employee after his employment has ceased, it is necessary to consider all the circumstances of the case. We are satisfied that the following matters are among those to which attention must be paid: (a) The nature of the employment. Thus employment in a capacity where 'confidential' material is habitually handled may impose a high obligation of confidentiality because the employee can be expected to realise its sensitive nature to a greater extent than if he were employed in a capacity where such material reaches him only occasionally or incidentally. (b) The nature of the information itself. In our judgment the information will only be protected if it can properly be classed as a trade secret or as material which, while not properly to be described as a trade secret, is in all the circumstances of such a highly confidential nature as to require the same protection as a trade secret eo nomine … (c) Whether the employer impressed on the employee the confidentiality of the information. Thus, though an employer cannot prevent the use or disclosure merely by telling the employee that certain information is confidential, the attitude of the employer towards the information provides evidence which may assist in determining whether or not the information can properly be regarded as a trade secret … (d) Whether the relevant information can be easily isolated from other information which the employee is free to use or disclose. In Printers & Finishers Ltd v Holloway [1965] R.P.C. 239, Cross J. considered the protection which might be afforded to information which had been memorised by an ex-employee. He put on one side the memorising of a formula or a list of customers or what had been said (obviously in confidence) at a particular meeting, and continued, at p. 256: 'The employee might well not realise that the feature or expedient in question was in fact peculiar to his late employer's process and factory; but even if he did, such knowledge is not readily separable from his general knowledge of the flock printing process and his acquired skill in manipulating a flock printing plant, and I do not think that any man of average intelligence and honesty would think that there was anything improper in his putting his memory of particular features of his late employer's plant at the disposal of his new employer.' For our part we would not regard the separability of the information in question as being conclusive, but the fact that the alleged “confidential” information is part of a package and that the remainder of the package is not confidential is likely to throw light on whether the information in question is really a trade secret.” “In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself … must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.” “The classic case of breach of confidence involves the claimant's confidential information, such as a trade secret, being used inconsistently with its confidential nature by a defendant, who received it in circumstances where she had agreed, or ought to have appreciated, that it was confidential”. “68. If confidence applies to a defendant who adventitiously, but without authorisation, obtains information in respect of which he must have appreciated that the claimant had an expectation of privacy, it must, a fortiori, extend to a defendant who intentionally, and without authorisation, takes steps to obtain such information. It would seem to us to follow that intentionally obtaining such information, secretly and knowing that the claimant reasonably expects it to be private, is itself a breach of confidence. … 69. In our view, it would be a breach of confidence for a defendant, without the authority of the claimant, to examine, or to make, retain, or supply copies to a third party of, a document whose contents are, and were (or ought to have been) appreciated by the defendant to be, confidential to the claimant. It is of the essence of the claimant's right to confidentiality that he can choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the protection of the confidence. It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy. Without the court having the power to grant such relief, the information will, through the unauthorised act of the defendant, either lose its confidential character, or will at least be at risk of doing so. The claimant should not be at risk, through the unauthorised act of the defendant, of having the confidentiality of the information lost, or even potentially lost.” [121.] The remaining question is whether such use must give rise to a detriment to the claimant in order for a breach of confidence to be established. Megarry J in Coco v AN Clark left open the question of whether this is required in all cases, as did Lord Goff in the Spycatcher case. Lord Keith, however, said in that case that: “as a general rule, it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence even where the confider can point to no specific detriment to himself … So I would think it a sufficient detriment to the confider that information given in confidence is to be disclosed to persons whom he would prefer not to know of it, even though the disclosure to him would not be harmful to him in any positive way.” [122.] The passage from Tchenguiz set out above is consistent with the approach of Lord Keith. Toulson & Phipps on Confidentiality (4th ed, 2020), §§5-021–022 draws a distinction between private and public confidences, suggesting that in the case of the former: “the confider may have an interest in the information being kept confidential, regardless of whether disclosure would be positively harmful to it, for reasons which may be perfectly understandable (and which would be understood by any reasonable person in the position of the confidant). If so, for the reasons suggested by Lord Keith in the Spycatcher case, that should be sufficient to found a cause of action; and the question whether unauthorised disclosure in such circumstances is considered to involve 'detriment' is an exercise in semantics.” [123.] On the basis of these authorities, if the defendants have deliberately and surreptitiously obtained, copied and stored the claimants' confidential information for the purposes of a competing business, in circumstances where the defendants knew or should have known the information to be confidential, that is sufficient to establish a breach of confidence as an equitable claim. It is not necessary to show that the defendants have specifically used the material in their business, or that the claimants have suffered loss and damage as a result. ……….. Procuring or inducing breaches of contract ……….. [188.] The ingredients of the tort of inducing or procuring a breach of contract were summarised by Morgan J in Aerostar Maintenance International v Wilson[2010] EWHC 2032 (Ch) at §163 (recently cited by Bryan J in Lakatamia Shipping v Nobu[2021] EWHC 1907 (Comm) , §125) as follows: “first, there must be a contract, second, there must be a breach of that contract, thirdly, the conduct of the relevant defendant must have been such as to procure or induce that breach, fourthly, the relevant defendant must have known of the existence of the relevant term in the contract or turned a blind eye to the existence of such a term and, fifthly, the relevant defendant must have actually realised that the conduct, which was being induced or procured, would result in a breach of the term.” [189.] As Morgan J noted in that summary, the requirement of knowledge of the contractual term is satisfied by blind-eye knowledge, where the defendant is “knowingly, or recklessly, indifferent” to whether the conduct procured is a breach of contract or not: Lord Denning in Emerald Construction v Lowthian[1966] 1 WLR 691 , pp 700–701, cited with approval in OBG v Allan[2007] UKHL 21 ,[2008] 1 AC 1 , §§40–41. ……… Database rights Legal principles [221.] The Copyright and Rights inDatabases Regulations 1997 implemented, in the UK, Directive 96/9/EC on the legal protection of databases [1996] OJ 77/20. The Regulations provides, in Regulation 13(1), that a database right subsists if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. A database is defined in s. 3A of the CDPA (as inserted by Regulation 6 of the 1997 Regulations) as a collection of independent works, data or other materials, which are arranged in a systematic or methodical way, and are individually accessible by electronic or other means. [222.] InCase C-203/02 British Horseracing Board v William Hill EU:C:2004:695, §31, the CJEU said that the concept of an investment in obtaining the contents of a database must be understood to refer to: “… the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.” [223.] The sui generis database right therefore protects the collection and processing of data in a database, rather than the creation of the data in the first place. As the CJEU went on to explain, the same person can both create the original data and rely on the database right in respect of the processing of those data, provided that there is an independent substantial investment in the latter: “35. … the fact that the creation of a database is linked to the exercise of a principal activity in which the person creating the database is also the creator of the materials contained in the database does not, as such, preclude that person from claiming the protection of the sui generis right, provided that he establishes that the obtaining of those materials, their verification or their presentation … required substantial investment in quantitative or qualitative terms, which was independent of the resources used to create those materials. 36. Thus, although the search for data and the verification of their accuracy at the time a database is created do not require the maker of that database to use particular resources because the data are those he created and are available to him, the fact remains that the collection of those data, their systematic or methodical arrangement in the database, the organisation of their individual accessibility and the verification of their accuracy throughout the operation of the database may require substantial investment in quantitative or qualitative terms …” [224.] Under Regulation 16 a person infringes the database right in a database if, without the consent of the owner of the right, they extract or reutilise all or a substantial part of the contents of the database. “Extraction” is defined in Regulation 12(1) as the permanent or temporary transfer of any of the contents of the database to another medium by any means or in any form. [225.] The concept of extraction from a database was considered by the CJEU inCase C-304/07 Directmedia Publishing v Albert-Ludwigs-Universität Freiburg EU:C:2008:552, from which the following principles in particular can be derived: i) The decisive criterion is the existence of an act of “transfer” of all or part of the contents of the database to another medium, whether of the same nature as the medium of the database or a different nature (§36). ii) It is immaterial whether the transfer is effected through a technical process (e.g. electronic means) or by manual means (§37). iii) It is also immaterial that the contents of the database are rearranged or adapted during the process of transfer (§§39–40). [226.] As the Court of Appeal confirmed in Football Dataco v Sportradar[2013] EWCA Civ 27 , §73, there can be an act of extraction of data where those data are uploaded onto and stored on a computer, even if the user of the computer has not read or accessed the relevant data.”
“written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage.”
“Slander of title, etc. (1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage — (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or (b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”
“[18] I will NOT disparage, in any form, the performance failures and/or reputation of another alarm provider.”; and iv) I have found that C’s employee, Karen Armstrong, adopted a similar tactic of making maliciously false statements about D3 in order to seek to persuade customers to switch back to C. LH sought to distance himself from that conduct by claiming that Karen Armstrong “had gone off script”