Friend Media Technology Systems Limited & Anor v Jonathan Norman Friend & Anor [2025] EWHC 2897 (KB)

[2025] EWHC 2897 (KB)

Case No KB-2025-0001228

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06 November 2025

Before

MR JUSTICE CONSTABLE

Between

(1) FRIEND MEDIA TECHNOLOGY SYSTEMS LIMITEDClaimants

(2) FRIEND MTS LIMITEDClaimant

(1) JONATHAN NORMAN FRIENDDefendants

(2) FRIEND TP LIMITEDDefendant

Daniel Oudkerk KC and Jamie Randall (instructed by Addleshaw Goddard LLP) for Claimants

Gavin Mansfield KC, Thomas Ogg, Samuel Willis and Carla Fischer (instructed by Lewis Silkin LLP) for Defendants

Hearing Hearing dates: 21, 22, 23, 24 and 27 October 2025

JUDGMENT

This judgment was handed down by the Judge remotely by circulation to the parties'

representatives by email and release to The National Archives. The date and time for

hand-down is deemed to be 2pm on Thursday 6 TH of November 2025.

Introduction

[1]Jonathan Friend, the First Defendant is the founder of, and a former director and employee of, the Second Claimant (“Friend MTS”). He remains a non-executive director (‘NED’) of the First Claimant (“FMTS”) and is, together with his family, a substantial shareholder in FMTS, registered in Jersey, the parent company of a group of companies (together, ‘the Friend Group’). The Friend Group provides technology designed to combat online piracy to many of the biggest sports, media and entertainment organisations in the world. Friend MTS, registered in England and Wales, is the principal trading subsidiary within the Friend Group.

[2]In 2022, a significant investment was made into the Friend Group by NorthEdge Capital LLP (“NEC”), a private equity firm. At the time of the investment Mr Friend entered into a Service Agreement (the “SA”) with Friend MTS and an Investment Agreement (the “IA”) with NEC, each dated 19 July 2022, the relevant terms of which are dealt with further below.

[3]It was not long before divisions emerged between Mr Friend and NEC’s appointees to the management of the Friend Group, and in particular the new CEO, Mr Shane McCarthy. Mr Friend resigned as an employee of Friend MTS on 6 February 2024. Mr Friend’s notice period was cut short by the Claimants, terminating his employment on 9 October 2024, with payment in lieu of the remaining notice period. He was removed as a director of Friend MTS on 22 November 2024. The circumstances of Mr Friend’s departure from Friend MTS, and his continued directorship of FMTS are matters of dispute between the parties elsewhere, including unfair prejudice proceedings in Jersey (the “Jersey Proceedings”) brought by Mr Friend and other shareholders in FMTS and an employment tribunal claim brought by Mr Friend relating to the termination of his employment, and various alleged detriments during his employment (“the ET Proceedings”). Both of these proceedings were on foot prior to this claim; neither has yet been determined.

[4]In this claim, the Claimants alleged that, since his resignation, Mr Friend has been engaged in multiple discussions with the Friend Group’s customers, potential customers, potential partners and competitors, and has divulged confidential information. It is said that he has done so secretively, continually refusing to inform the Claimants of his discussions, and he has done so in order to compete or compete in the future with the Friend Group. As a result, it is alleged that Mr Friend is in breach of restrictive covenants both under the SA and IA, and that he is in breach of his fiduciary duties as director of Friend MTS (until 22 November 2024) and FMTS (throughout). Upon issuing the claim on 9 April 2025, the Claimants applied for an interim injunction.

[5]Mr Friend denies having competed with the Claimants or breaching any of his restrictive covenants, and contends that he has no intention of doing so. He denies setting up a rival business, misusing the Claimants’ confidential information, or doing anything to damage the Claimants’ reputation. On the contrary, he contends that he has acted, pursuant to his duties under the SA (prior to its termination) and thereafter his continuing fiduciary duties as a NED of FMTS, to protect and advance the business not least because it is a business in which he (and his family) retains a substantial shareholding. Mr Friend asserts that these proceedings form part of a campaign to put pressure on him in relation to the Jersey Proceedings and the ET Proceedings.

[6]Faced with the interim injunction, Mr Friend provided undertakings which were contained in a consent order signed by Adrian Eardley KC (sitting as a Deputy High Court Judge) (the “Interim Injunction Order”), which also directed an expedited trial of the issues of liability and injunctive relief. This is the judgment which follows that trial.

[7]I note that both the pleadings and the witness evidence traverse areas of dispute which overlap with those issues for determination in the Jersey Proceedings and/or the ET Proceedings. In the context of the specific claims for consideration in this action, both sides accept that such areas of dispute are essentially background. Neither side seeks a determination by me of such disputed facts. This judgment does not do so, and plainly I draw no inferences either way from disputed facts.

[8]As at the date of the trial, the post-termination restraints in the SA had expired (running, as they did, for 12 months until 9 October 2025). The Claimants accepted that there was no basis for ongoing relief to enforce those restrictions. Mr Friend did not challenge the enforceability of the remaining obligations in the Investment Agreement and accepted that he was subject to ongoing restraints in the Investment Agreement. It was the Claimants’ position that in light of what it said was the effect of the injunction to date (a characterisation not accepted by Mr Friend), it did not seek any further injunctive relief to continue beyond trial.

[9]Unlike many expedited trials following an interim injunction application, this trial is therefore not concerned about whether or to what extent the continuation of injunctive relief would be justified. The ambit of the trial is, therefore, limited to whether the Claimants make good the breaches they had alleged in their Particulars of Claim so as to establish a liability or liabilities, the causative effect of which are to be heard in due course.

Legal Framework

[10]There is little dispute between the parties as to the relevant legal framework.

[11]Under the SA, the Claimants rely upon the following positive obligations:(1) ‘[Mr Friend] shall be responsible for setting and directing the strategic direction of the Group [and] will be involved in the relationship management of the Group's key customers’ (Clause

4.1 );

(2) ‘[Mr Friend] undertakes to disclose promptly to the Board anything of which he becomes aware or in which he becomes involved which affects adversely or is likely to affect adversely the business, interests or reputation of any Group Company” (Clause

4.2 ).

[12]The Claimants also rely upon the following prohibitions within the SA, the existence of which is not in issue. Mr Friend was required, for a period of 12 months from the Termination Date, not to:(1) ‘so as to compete (or to compete in the future) with the Company or any Relevant Group Company canvass, solicit or approach or cause to be canvassed, solicited or approached any Relevant Customer for the supply or provision of Relevant Products or Services or endeavour to do so’ (Clause

18.1.1 );

(2) ‘so as to compete (or to compete in the future) with the Company or any Relevant Group Company deal or contract with any Relevant Customer in relation to the supply or provision of any Relevant Products or Services, or endeavour to do so’ (Clause

18.1.2 );

(3) ‘do or attempt to do anything which causes or may cause a Relevant Customer to cease or reduce materially its dealings or intended dealings with the Company or Relevant Group Company or alter its terms of business with and to the detriment of the Company and/or other Relevant Group Company’ (Clause

18.1.3 );

(4) ‘so as to compete (or to compete in the future) with the Company or any Relevant Group Company canvass, solicit or approach or cause to be canvassed, solicited or approached any Prospective Customer for the supply or provision of Relevant Products or Services or endeavour to do so’ (Clause

18.1.4 );

(5) ‘so as to compete (or to compete in the future) with the Company or any Relevant Group Company deal or contract with any Prospective Customer in relation to the supply or provision of any Relevant Products or Services, or endeavour to do so’ (Clause

18.1.5 );

(6) ‘be employed, or otherwise work for or provide technical, commercial or professional services or advice to, any other business (whether conducted on its own or as part of a wider entity) which supplies or provides (or intends to supply or provide) Relevant Products or Services in competition with the Company or any Relevant Group Company with which the Executive was materially engaged or involved, or for which he was responsible, during the Relevant Period’(Clause 18.1.8);

(7) ‘use or seek to register, in connection with any business, any name, internet domain name (URL), social media account or other device which includes the name or device of the Company or any Group Company, any identical or similar sign or any sign or name previously used by the Company or any Group Company or at any time after the Termination Date represent themselves as connected with the Company or any Group Company in any capacity’ (Clause 18.1.12);

(8) ‘either during his employment (including without limitation any period of absence or of exclusion pursuant to clause 22.1) or after its termination (without limit in time) make use of, or encourage or permit the use of any Confidential Information for any purposes other than those of the Company and for the benefit of the Company or any Group Company and shall take all reasonable steps without incurring personal cost to prevent the publication or disclosure of any Confidential Information’ (Clause 19.1).

[13]In terms of the powers of the Board of the Second Claimant, the Claimants also rely upon:(1) During employment, the Board ‘may at any time require the Executive to cease performing and exercising all or any of such duties, functions or powers’ (Clause 4.4) and;

(2) After notice of termination has been given, the Board may ‘require [Mr Friend] to carry out specified duties for the Company or any Group Company or to carry out no duties’ and ‘instruct the Executive not to directly or indirectly communicate orally or in writing with suppliers, customers, officers, employees, shareholders, agents or representatives of the Company or any Group Company (other than purely social contact)’(Clause 22.2).

[14]There is no dispute that, in addition, a duty of loyalty and fidelity, and a duty of trust and confidence, were implied into the SA as a matter of law.

[15]Pursuant to the IA, Mr Friend undertook so long as he is employed or engaged by the Friend Group not to:(1) ‘carry on or be engaged, concerned or interested in, or provide technical, commercial, professional or other advice to a Key Competitor’ (Clause 10.1.1(a));

(2) ‘carry on or be engaged, concerned or interested in, or provided technical, commercial, professional or other advice to, any other business which supplies products or services in competition (directly or indirectly) with the business of the Group, which is not a Key Competitor’ (Clause 10.1.1(b));

(3) ‘in competition with the Group, solicit or accept any order, enquiry or business in respect of any products or services competitive with those manufactured and/or supplied by the Group’ (Clause 10.1.1(d));

(4) ‘at any time, do or say anything which is, or which could reasonably be foreseen to be, harmful to the reputation or goodwill of any Group Company’ (Clause 10.2.2);

(5) ‘use or disclose to any person Confidential Information he has or acquires and will make every effort to prevent the use or disclosure of Confidential Information’ (Clause 11.4).

[16]Similarly, it is common ground that Mr Friend owed duties as a director of both Claimants under the Companies Act 2006 (“CA 2006”) and Companies (Jersey) Law 1991 (“CL 1991”)), and in equity. There is no material difference between the duties owed under Jersey and English law for the purposes of the matters in dispute. The breaches of duty alleged relate to what are in English law sections 172, 174 and 175 of the CA 2006, set out below: (1) Section 172:

‘(1) A director of a company must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole, and in doing so have regard (amongst other matters) to— (a) the likely consequences of any decision in the long term, (b) the interests of the company's employees, (c) the need to foster the company's business relationships with suppliers, customers and others, (d) the impact of the company's operations on the community and the environment, (e) the desirability of the company maintaining a reputation for high standards of business conduct, and (f) the need to act fairly as between members of the company….’ (2) Section 174: ‘(1) A director of a company must exercise reasonable care, skill and diligence. (2) This means the care, skill and diligence that would be exercised by a reasonably diligent person with— (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company, and (b) the general knowledge, skill and experience that the director has.’ (3) Section 175: ‘(1) A director of a company must avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company. (2) This applies in particular to the exploitation of any property, information or opportunity (and it is immaterial whether the company could take advantage of the property, information or opportunity).’

[17]On the basis of the various authorities relied upon by the parties, the following principles can be distilled as applicable to considering the question of compliance with the s.172 duty to promote the success of the company in good faith (‘the Duty to Promote’):(1) The duty is to be assessed subjectively. The issue is as to the state of the director’s mind. The question is whether the fiduciary honestly believed his actions to be in the best interests of the company, and not whether objectively it was so in the opinion of the Court: Regentcrest plc v Cohen

[2001] BCC 494

at [120];

(2) A director will not be in breach if he honestly held an unreasonable or even mistaken belief as to what was in the company’s best interests:Extrasure Travel Insurances Limited v Scattergood [2003] 1 B.C.L.C. 598 at [88]-[89];

(3) The fact that a director is duty-bound to promote the success of the company does not preclude them from simultaneously promoting their own interests, absent any conflict (see Hirsche v Sims [1894] A.C. 654 at 660-661) or the interests of another company (see Charterbridge Corporation Ltd v Lloyds Bank Ltd

[1970] Ch. 62

at p74-75);

(4) The duty may encompass a duty to disclose one’s own breach of duty: Item Software (UK) Ltd v Fassihi

[2004] EWCA Civ 1244

[2005] BCC 994

at [41]-[44]. The duty is to be seen through the lens of the overarching duty and would, also, be judged subjectively as described above;

(5) Good faith reliance upon advice will be a relevant and important factor to be taken into account in considering compliance with the duty to promote the success of the company, even if that advice is wrong. See Re Vining Sparks UK Ltd

[2019] EWHC 2885 (Ch)

at [192(d)] and [184]-[191]; Wessely v White [2019] B.C.C. 289 at [44]; Green v Walkling[2008] B.C.C. 256, at [36]-[37].

[18]The s.174 duty to ‘exercise reasonable care skill and diligence’ (‘the Reasonable Care Duty’) is one which requires the court to ask “whether it has been established that no reasonably competent director could have made the judgment” made: Roberts v Frohlich

[2011] EWHC (Ch) 257

; [2012] B.C.C. 407 at [108]. The descriptions of this duty in the authorities make clear that the threshold is a high one. In Overend & Gurney Company v Gibb (1871-72) L.R. 5 H.L. 480, the question was whether the directors “were cognisant of circumstances of such a character, so plain, so manifest, and so simple of appreciation, that no men with any ordinary degree of prudence, acting on their own behalf, would have entered into such a transaction as they entered into?” This has since been described as, “establishing the irreducible objective standard of the reasonably ordinary businessman” (Sharp v Blank

[2019] EWHC 3096 (Ch)

at [622]).

[19]As to the s.175 duty to avoid conflicts of interests (‘the Conflict Duty’), the authorities give rise to the following guiding principles:(1) A company is entitled to the undivided loyalty of the director to the company;

(2) The duty is strict. It applies not only where there clearly is a conflict between duty and interest, but also where the fiduciary’s personal interest “possibly may conflict” with his duty (see Keech v Sandford(1726) 25 ER 223; Bhullar v Bhullar

[2003] EWCA Civ 424

[2003] BCC 711

at [27]; Snell’s Equity, 35th ed at 7-022);

(3) The test is objective. The existence of the potential for conflict is to be ascertained by asking “whether a reasonable man, looking at the relevant facts, would think that there was a real, sensible possibility of conflict” (see Breitenfeld UK Ltd v Harrison & Ors

[2015] EWHC 399 (Ch)

at [60(f)]);

(4) It follows that the honesty or otherwise of the fiduciary is irrelevant. A breach of fiduciary duty “may be attended with perfect good faith” (see Snell’s Equity at 7-023);

(5) Where an opportunity is likely to be commercially attractive to a company, the director is under a duty to bring it to the attention of the company, regardless of whether the company had the means to exploit it. The director cannot be left to make the decision as to whether he is allowed to help himself to its beneﬁt (see Re Allied Business & Financial Consultants Ltd

[2009] EWCA Civ 751

[2009] BCC 822

at [55] and Bhullar v Bhullarat [40]). If a director obtains the opportunity for himself, he will be liable to the company for breach of duty regardless of the fact that he acted in good faith or that the company could not, or would not, take advantage of the opportunity (see Towers v Premier Waste Management Ltd [2012] B.C.C. 72 (CA) at [10]).

[20]Mr Oudkerk KC, for the Claimants, advanced a principle following from the latter cases, and relying on Ward Evans v Fox

[2001] EWCA Civ 1243

, that where a potentially competitive business is established, the fact that it may be dormant is irrelevant. This overstates the position: the dormant nature of the business, may very well (as Ward Evans demonstrated) not be determinative of an absence of conflict; equally, as is clear from Shepherds Investments Ltd v Walters [2007] 2 B.C.L.C. 202, a director may nevertheless take certain preparatory steps to compete consistently with their duties to the company of which they are a director. The question will be acutely fact sensitive. As Etherton J said in Shepherd Investments, ‘[i]t is the wide range of activity and decision-making between the two ends of the spectrum which will be fact sensitive in every case.’

The Pleaded Case and Issues for Determination at the Conclusion of Evidence

[21]The structure of the Particulars of Claim is that, after introductory paragraphs introducing the parties, the relevant individuals and their roles with the Friend Group companies, the pleading sets out the obligations owed under the SA, the IA, and by statute. From paragraphs 43 to 56 there follows a narrative series of complaints under the headings, ‘Preference of Mr Friend’s interests over those of the Friend Group’ (paragraph 43), ‘Contact with Customers following Resignations’ (paragraphs 44-50), ‘Contact with Competitors’ (paragraph 51), and ‘Refusal to Provide Details of Discussions’ (paragraphs 52-56). A standalone section deals with the establishment of Friend TP Limited (paragraph 57). A relatively large part of this section deals (at paragraphs 49.4 and 50) with Mr Friend’s attendance at an industry conference hosted in Amsterdam by the Motion Picture Association (‘MPA’), concluding with the allegation at paragraph 50.2.5 that ‘Mr Friend is understood to have divulged aspects of the Friend Group’s intellection property relating to Dynamic IP Blocking to the attendees at this event’. This is, it need not be said, a serious allegation.

[22]There is then a section entitled ‘Breaches by Mr Friend’ which, at the heart of the pleading, identifies those breaches which the Claimants allege have taken place by reference to the previous narrative section. Paragraph 58 alleges, generally, that, until 22 November 2024 (the point at which he was neither an employee or director of Friend MTS, but remained a non-executive director of FMTS) Mr Friend acted in breach of his fiduciary duties to FMTS and Friend MTS in that he failed to act in a way which would be most likely to promote the success of the Companies, failed to exercise reasonable care, skill and diligence, placed himself in a position where his own interests conflicted and/or might have conflicted with those of the Companies, and failed to disclose his prior breaches of duty to the Companies by:(1) Having had repeated and detailed discussions with customers, prospective customers and potential partners, the contents of which he has refused to disclose to the Companies, as pleaded at paragraphs 44 to 50 of the Particulars of Claim. This conduct was also alleged to have been in breach of clauses 10.1.1(c), 10.2.2, 11.4 of the Investment Agreement, clauses 4.1 and 19.1 of the Service Agreement and the implied terms imposing a duty of loyalty and duty of trust prior to the termination of Mr Friend’s employment on 9 October 2024; and in breach of clauses 10.1.1(c), 10.2.2, 11.4 of the Investment Agreement and clauses 18.1.1, 18.1.2, 18.1.3, 18.1.4 and 18.1.5 and 19.1 of the Service Agreement thereafter.

(2) Having had discussions with the Friend Group’s competitors, the contents of which he has refused to disclose to the Companies, as pleaded at paragraph 51. This conduct was also alleged to be in breach of clauses 10.1.1(a) and 11.4 of the Investment Agreement and Clause 18.1.8 of the Service Agreement.

[23]I record in passing the justified observation of Mr Mansfield KC that the pleading, insofar as alleging breach of the Duty to Promote did not include, at least in terms, any reference to an absence of good faith.

[24]Paragraphs 60 and 61 deal with the period from 22 November 2024 to April 2025 (the date of the pleading). They allege that Mr Friend has continued to act in breach of his fiduciary duties, contractual and statutory obligations in materially identical terms by:(1) establishing Friend TP, as pleaded at paragraph 57;

(2) having had continued contact with customers, potential partners and/or competitors, as pleaded at paragraphs 44 to 50; and

(3) disclosed Second Claimant’s confidential information, referring back to paragraph 50.2.5.

[25]The establishment of Friend TP is specifically alleged to have been a breach of Clause 18.1.12 of the SA.

[26]Paragraph 63 notes that the particulars of breach were, in light of the failure on the part of Mr Friend to have provided any account of his discussions with customers, potential customers, potential partners or competitors, the best particulars that could be provided pending disclosure and/or the provision of information. It noted that the Claimants would further particularise Mr Friend’s breaches in due course, but will rely at trial on all such wrongful acts of Mr Friend as come to light.

[27]Paragraph 65 pleads that as a consequence of the acts complained of, the Claimants have suffered loss and damage, and that unless Mr Friend was restrained by injunction, will suffer further loss and damage. With a similar reservation about the then present inability to provide better particulars, the particulars of loss were stated to be as follows:(1) The withholding of potential customers, which Mr Friend has stated would provide additional revenue of £1 million per year;

(2) The loss of opportunity to partner with MPA and to expand in North America. The forecasted value of the annual recurring revenue from a limited number of initial prospects in this region alone is estimated to exceed £2 million per annum;

(3) The impact on the Friend Group’s reputation and brand as a result of disparaging comments made by Mr Friend to the Friend Group’s customers about the current management of the Friend Group;

(4) Mr Friend holding himself out as an expert in the industry, but not as a representative of the Friend Group;

(5) The loss of revenue and profit as a result of Mr Friend establishing a rival business in the form of Friend TP; and

(6) Loss resulting from Mr Friend's misuse and disclosure of the Companies’ confidential information.

[28]Paragraph 66 alleges that Mr Friend and/or Friend TP has profited from the alleged breaches of his fiduciary duties and obligations under the Investment Agreement and Service Agreement and the Companies are entitled to an account of any profits earned by Mr Friend and/or Friend TP as a result of such breaches.

[29]On 1 August 2025, the Claimants served a ‘Provisional Schedule of Loss’. At paragraph 1-2, the pleading identifies two specific lost opportunities:(1) the lost opportunity to re-establish the relationship with Serie A and enter into an agreement to provide services to Serie A, including blocking services and watermarking. This was valued at £1.8m;

(2) the lost opportunity to acquire OpSec’s business and to consolidate OpSec’s client base into the business of the Claimants. This was valued at £5.42m.

[30]Within Section B of the Provisional Schedule of Loss, the Claimants identify potential, presently unquantifiable losses from potential dealings with the Alliance for Creativity and Entertainment (‘ACE’)/MPA; Rogers, Sky and the continued allegations regarding disclosure of confidential information, holding himself out as an expert and the creation of Friend TP.

[31]In Closing, there was on any view a very substantial shift in the Claimants’ pleaded position which can be summarised as:(1) abandoning the alleged breach of confidence, and its claim for damages as a result;

(2) restricting its claim for damages to the two lost opportunities, and abandoning any other losses (and implicitly abandoning its pursuit of an account of profits, whether from Mr Friend or Friend TP);

(3) pursuing various allegations of breach on the basis of the contents of disclosure, which remained unpleaded, notwithstanding having foreshadowed the intention to amend the particulars of claim, insofar as necessary, following disclosure.

[32]As to the two lost opportunities, Mr Mansfield KC pointed out that the underlying causes of action within the pleading were either entirely absent or incomplete.

[33]In relation to the Serie A lost opportunity, Mr Mansfield KC is correct that the cause of action does not appear in the Particulars of Claim at all. This was not a new pleading point taken at trial: the deficiency was pointed out clearly in the Defendant’s Counter-Schedule of Loss. The closest that the Particulars of Claim comes is the allegation at paragraph 43.8 that Mr Friend said he was withholding potential new customers worth over £1 million in revenue. As to this:(1) this is not itself an allegation that Mr Friend had, in fact, withheld revenue, just that he claimed to be doing so;

(2) in any event, paragraph 43.8 is not referred to at all in the breach section of the Particulars. Whilst therefore it is set out in the Provisional Schedule of Loss, there is no properly pleaded claim for breach.

[34]In relation to the OpSec lost opportunity, the closest the pleadings come to traversing the issue is found not in the Particulars of Claim, but in Mr Friend’s Defence, where he explains his interactions with an employee of OpSec. This was in large part not admitted in the Claimants’ Reply, although it then contained an averment that ‘Mr Friend ought to have informed the Companies of the potential opportunity’. It is a basic procedural requirement that a Reply to a Defence must not bring in a new claim (see CPR 16 PD paragraph 9.2).

[35]The fact that the only two allegations giving rise to a claim for loss are inadequately pleaded is far from satisfactory. I do not accept Mr Oudkerk KC’s submission in Closing that Lord Woolf MR’s observations in McPhilemy v Times Newspapers

[1999] 3 All ER 775

gives parties free licence to pursue at trial a scattergun of allegations which have not been properly pleaded. It is right that the Particulars of Claim are not the place for a lengthy recitation of evidence dressed up as particulars. However, the basic facts, and the basis upon which those facts are said to be a breach of particular obligations are essential building blocks of a claim. They form the necessary agenda for trial, and indeed judgment. No offer to amend the pleadings to make good the obvious inadequacies was made. It may be that such an application would have met with success, in circumstances where Mr Mansfield KC rightly conceded that he was able to (and did) deal with the substance of the case as present at trial. For the reasons set out below, I have rejected the (assumed) cases on breach said to have given rise to these lost opportunities, such opportunities also being in my view beyond speculative. In these circumstances it is not necessary to deal with the academic question of what the Court would have done had it formed the view that the claims had merit, but remained inadequately pleaded at the close of trial.

[36]In circumstances where(1) no further injunctive relief is sought and

(2) only two breaches are said to have caused any losses (or any losses that are being pursued) which could – if established – proceed to a quantum trial, both parties nevertheless submit that I should deal with other non-causative breaches pleaded. The Claimants want this as it is keen – in the context of a debate over costs – to establish that it was justified in applying for the interim relief it sought and, by consent, obtained. Even if those breaches said to give rise to losses are not established, it contends that other breaches or potential breaches (coupled with inadequate communication from Mr Friend) justified the application. Mr Friend wants the determination of all the pleaded issues (irrespective of any relief or losses now attached to much of it). This is because, quite simply, he contends that he refutes the allegations and is entitled to a judgment dismissing them.

[37]In this relatively novel situation, I do, with some reticence, consider the entirety of the pleaded case (and, indeed, the unpleaded allegations) notwithstanding that there is now no suggestion that most of the alleged breaches have caused or will cause the Claimants any loss, and where no other relief is now sought. Whilst ordinarily, it may make sense to turn to the two alleged causative breaches first, and then turn to subsidiary allegations, it is better in the present case to maintain a broad chronological structure, not least by reference to the three different periods of time within which Mr Friends’ obligations were different by reference to his changing status.

The Friend Group

[38]Some of the allegations relate to the extent to which Mr Friend communicated with competitors and/or offered and/or planned to offer services in competition with Friend MTS. In order best to understand these, it is necessary to make some preliminary findings about the companies, and the service which they did, or did not, offer.

[39]As he described in his witness statement, which in this regard I accept, Mr Friend was the principal architect of the Friend Group’s business as it is today. Mr Friend was initially responsible for the creation, maintenance and development of the technology which forms the business’ foundation, and then from 2005 onwards (when the Companies hired its first employees) for leading that development. Mr Friend was also primarily responsible for the commercial development of the Claimants’ business, initially making all of the business’ sales, later leading virtually all of the significant sales processes. The latter situation persisted, despite having employed multiple people over the years to handle sales and commercial development, until 2023. A significant proportion of the Friend Group’s customers, especially when viewed by quantum of revenue, are accounts that Mr Friend personally won. This is to some extent reflected in the fact that Mr Friend was named a “Key Man” in several critical customer contracts, including in the contract with Sky, the Friend Group’s largest customer by revenue.

[40]The business of the Friend Group is the provision of technology designed to combat online piracy. As described by Mr Friend, and as broadly agreed by Mr White, Chief Architect at Friend MTS, key technologies employed within its products are as follows:(1) The embedding of “watermarks” (essentially hidden codes) into video streams, and the later extraction of these codes to identify the source of the video. Watermarking as an overall concept involves the insertion of an identifier into digital media content (video, audio, or still images) in a way that cannot be perceived by a viewer (or listener) of that content – and therefore does not detract from the experience of consuming that content – but which can later be “extracted” to identify the origins of that copy of the content.

(2) Monitoring the internet for video content to find illegal distribution of content (sports, live TV channels and pre-recorded video content such as films and episodes of TV series), that are either publicly and freely accessible or to which access is being illegitimately sold, typically in ‘closed’ video streaming services.

(3) Automatically identifying, at a very large scale, what a particular piece of video is, based on an analysis of the frames of video rather than any title, description or other arbitrary metadata that may have been associated with it. This technology is commonly known as “fingerprinting” or “automatic content recognition”.

(4) Technology for identifying, categorising and reporting for blocking sources of video piracy.

[41]The Friend Group sold two flagship products: one originally called “ASiD”, but now called Subscriber Watermarking, and one originally known as “Piracy iQ” but now referred to as Dynamic Server Blocking.

[42]Following NEC’s acquisition of a majority shareholding in the Friend Group under the share purchase agreement, Mr Friend and his family have a 36.47% minority shareholding. That shareholding is distributed among the family through both direct shareholding (Mr Friend’s wife and father), and shareholding held in trust. It is on this basis that Mr Friend contends, with credibility, that he and his family retain a very significant financial interest in the ongoing success of the Friend Group.

[43]One particular area of dispute between the parties, relevant to whether Mr Friend was or may conceivably have been acting in competition with the Friend Group, is the extent to which the Friend Group’s offering is best described as ‘services’ rather than the provision of technology ‘products’. In this regard, I accept the evidence of Mr Friend, where he described the provision as follows:

‘The Friend Group’s primary activities, as explained at paragraph 20 above, are to provide technology products. These products are typically delivered using a “SaaS” (“Software as a Service”) methodology and significant ongoing development, platform operational and maintenance, and technical support are required to do this. Similarly, maintenance and integration of the in-device components of the Companies’ products also requires extensive engineering resource to maintain and support.’

[44]I did not understand the substance of Mr White’s evidence, in cross-examination, to materially disagree with this. He accepted that the service provided by the employees all relates to the existence of the software, be it pre-sales advice (no doubt on issues around product suitability) or ongoing servicing of the software’s use.

[45]In answer to a Request for Further and Better Particulars, the Claimants set out those consultancy services it said it provided. Mr Friend dealt with these in his witness statement in some detail. In broad terms, Mr Friend contended that the consultancy services being described were, to the extent they were, or had recently, been provided by Friend MTS (which to some extent he disputed) they were services collateral to the sale of the product, and were not stand-alone consultancy services. I accept this evidence, and it is consistent with the evidence of Mr White referred to above.

[46]I also accept Mr Friend’s evidence, which was not challenged, that the suggestion that he could, as a sole trader or through Friend TP, compete with the Friend Group even if he had had an incentive to do so, was not a credible one:

“...it is preposterous to suggest a sole trader could compete with FMTS in its business. FMTS makes its money from selling SaaS products. Those products are backed up by huge amounts of R&D, IP protection, and a big team maintaining the physical infrastructure and supporting the products. There is no way, even if I wanted to, that I could as a sole trader develop a competing product that could be sold to the multi-national corporations who are the customers of FMTS. Such multi-national corporations would never buy from a sole trader, in any case, from a liability perspective and a technical support perspective. It is a logistical impossibility. Sky, to take one example, is not going to buy products from a sole trader with no financial backup and place this technology in millions of Sky Boxes across Europe – technology that could break millions of Sky Boxes.”

The Witnesses

[47]The Claimants relied upon the following witnesses:(1) Shane McCarthy (“Mr McCarthy”), the CEO of the Friend Group and a director of FMTS and Friend MTS. In many respects, Mr McCarthy was fair and honest in the evidence he gave, although there were two key instances in which I have concluded that Mr McCarthy’s evidence to the Court was unlikely to reflect any genuine recollection of events, namely (a) his evidence surrounding the call on 19 July 2024 and (b) the purpose and nature of a surveillance operation instigated by Mr McCarthy, both of which I deal with insofar as necessary below.

(2) Mark Scotter (“Mr Scotter”), the CFO of the Friend Group and a director of FMTS and Friend MTS. A key part of Mr Scotter’s evidence underlay the pleaded quantification of opportunities said to have been lost. Whilst causation and loss would be (if breach were to be established) a matter for a later trial, consideration of the alleged lost opportunities was indirectly relevant to the overall credibility of the Claimants’ position. I formed the view that Mr Scotter’s evidence relating to lost opportunities was vague and speculative, at best.

(3) Christopher White (“Mr White”), the Chief Architect of Friend MTS. Whilst I accept that Mr White was an honest witness, for the reasons set out further below I entirely reject the conclusions he urged on the Court as to the confidentiality of information Mr Friend provided by way of textual suggestions to an industry guideline document. It may be that my rejection of that evidence is unsurprising in circumstances where the allegations of breach of confidence were abandoned in Closing.

(4) Christopher Gibbs (“Mr Gibbs”), the Senior Vice President of Sales at Friend MTS. Mr Gibbs’ evidence was straight forward and he answered questions fairly.

(5) David Gilmore (“Mr Gilmore”), the Vice President of Intelligence at Friend MTS. Mr Gilmore was an honest witness.

(6) David Nortier (“Mr Nortier”) Vice President of Sales at Friend MTS. Mr Nortier was also a straight forward witness.

(7) Mr Keven Parker (“Mr Parker”), the Joint Managing Partner of NEC and a director of FMTS and Friend MTS. Generally I considered Mr Parker’s evidence to have been honest, although as with Mr McCarthy, I consider that his evidence surrounding the 19 July 2024 call did not provide the whole truth.

(8) Mr Andrew Skinner (“Mr Skinner”), a partner of NEC and a director of FMTS and Friend MTS. Mr Skinner was not cross-examined.

[48]The only witness called for the Defendants was Mr Friend. Whilst there are a number of respects in which I found his evidence unsatisfactory which I comment on below, on the whole I considered Mr Friend to have been an honest witness. Critically, as this goes to the heart of the Duty to Promote case, I have no doubt that Mr Friend has at all times acted as he honestly believed was in the best interests of the Friend Group. That does not mean that he may well have been blinkered in that belief, as considered further below. E. 6 February 2024 to 9 October 2024

Alleged Breaches: Pre-19 July 2024

[49]Mr Friend resigned on 6 February 2024. From then on, until his notice period was curtailed and his employment terminated with payment in lieu on 9 October 2024, Mr Friend remained both an employee and director of Friend MTS, as well as director of FMTS. He was not placed on garden leave. There was upon his resignation no written instruction limiting or curtailing his duties. There is a dispute about whether or to what extent he was given a ‘request’ not to see customers without another representative from Friend MTS present on 12 March 2024; and about an instruction not to contact other customers at all on 19 July 2024. These disputes will be dealt with below at the appropriate points in the chronology.

[50]Both counsel explored in evidence whether in advance of resigning Mr Friend had told Sky and the Premier League that he intended to resign. Mr Oudkerk KC clarified in Closing that it was not suggested that this issue related to any claimed breach (let alone loss).

[51]Each of the Claimants’ witnesses giving evidence on the issue relied upon the Board Minutes of the Meeting. These state:

“JF [Jonathan Friend] advised that he did not feel that he believed in the strategy anymore and for that reason he was looking to leave the company. JF advised that he had already spoken to Sky and the Premier League and he had informed them that he was going to be leaving the company. JF believed that there was growth within the core market, but he did not believe that would create the right shareholder value in terms of the end game. MJ [Michael Joseph] asked JF to clarify if he was announcing his resignation as an employee to which JF responded that he was. MJ then asked for confirmation that JF had informed Sky and Premier League of his intentions to which JF confirmed.”

[52]Mr Skinner, who was at the Board Meeting, states in his witness evidence, on which he was not cross-examined, that when asked to clarify what he had said to Sky and Premier League, Mr Friend “intimated that he hadn’t quite been explicit with the customers but they would have understood that was his intention”. I note that this further clarification was not reported in these terms in the relevant Board Meeting Minutes, perhaps recognising that such a document was not intended to be a verbatim account of discussions. Mr Friend accepts that he had said something along the lines that he ‘wouldn’t be around very much longer in a day-to-day capacity’ to Ms Eccleston at Sky. This is the sort of intimation described by Mr Skinner, and is most likely accurate: in other words, Mr Friend’s statement was more nuanced than recorded in the Board Minutes. It may be that recollections may genuinely differ as to whether Mr Friend suggested he also told Premier League, although for reasons I have indicated I do not regard the Minutes as necessarily accurate. Nothing turns on the point, in any event. For completeness, I would have rejected the pleaded allegation that, if Mr Friend had told Sky and Premier League that he intended to resign in advance of his resignation, this ‘had the potential to cause the Friend Group substantial reputational harm’ (at paragraph 44). In circumstances that there is no evidence that any senior management from Friend MTS (such as Mr McCarthy) took swift action following the Board Meeting to do anything to investigate or repair the perceived potential harm with either Sky or the Premier League, this was not a credible allegation.

[53]The Particulars of Claim go on to allege (at paragraph 45):

“There was also an appreciable risk that Mr Friend would seek to maintain and develop those relationships for the advancement of his own interests, including establishing himself in competition with the Friend Group. Mr Friend was therefore asked not to speak to customers without another representative of the Friend Group present.”

[54]The Reply alleges that this request was made at a meeting on 12 March 2024. There is no pleaded case that this was any sort of formal (and authorised) instruction, or that a failure to comply with the request placed Mr Friend in breach of any of his duties. It is abundantly clear on the evidence, as will follow, that at no time Mr Friend wished to establish himself in competition with Friend MTS, or that he would remotely have been able to, should he have wanted to. I do not accept that, looked at rationally, there was any sound basis for considering that there was ‘an appreciable risk’ that Mr Friend was going to do so. The mere fact that there were plainly differences in strategic direction between Mr Friend and Mr McCarthy, and others, does not of itself give rise to an appreciable risk that Mr Friend wished to establish himself in competition with Friend MTS.

[55]The communications set out at paragraph 45 of the Particulars of Claim which are then relied upon by the Claimants are as follows:(1) On 7 March 2024, Mr Friend sent an email containing details of orders made by the courts of England & Wales, the Republic of Ireland and Canada implementing the use of Dynamic IP Blocking, to contacts at Creative Future, a nonprofit advocacy organisation for the creative industries, Paramount Pictures Corporation, Warner Brothers and the Walt Disney Company;

(2) On 9 April 2024, Mr Friend sent an email containing details of an order made by the Canadian court implementing the use of Dynamic IP Blocking to Creative Future, Paramount, Warner Brothers and Disney;

(3) On 14 May 2024, Mr Friend had a meeting with two individuals who work for the Premier League;

(4) On 24 June 2024, Mr Friend attended a zoom call with a number of individuals attached to a US senator;

(5) Mr Friend held regular meetings with at least two senior individuals at Sky; and

(6) Mr Friend held monthly meetings and or calls with BeIN.

[56]All of these communications were conducted by Mr Friend on his business (FMTS) email address. None were in any way competitive, and no allegation to the contrary was put to Mr Friend at trial. I have no hesitation in concluding that Mr Friend was doing the job he was, at this time whilst on notice, still employed to do. There is no reason why Mr Friend would be required, for example, to copy others into these emails in circumstances where he would not have done previously. Pursuant to Clause 4.1 of the SA, Mr Friend’s role was to be involved in the relationship management of the Group’s key customers and act as ambassador and champion for the Group in its chosen markets. These communications were unequivocally in pursuance of that role. For example, the communications with the US senator were to assist in the efforts to lobby for legislative change in the US, which does not presently permit Dynamic Server Blocking services. The US senator was plainly not a customer, nor a competitor – to this extent, the pleaded allegation does not make sense even at face value. Similarly, the pleaded allegation that Mr Friend’s contact with Creative Future, a nonprofit advocacy organisation (and not a customer), was either harmful or competitive is entirely without credible foundation. These communications were in, and only in, the interests of the Friend Group; again, it was not suggested otherwise at trial. Although complaint is made that the specific topics of discussions at meetings with the Premier League or BeIN were not being reported back, there is no suggestion that Mr Friend, in his senior and long standing role, had been subject to particular requirements of form-filling or reporting in the past. There was no specific obligation of reporting within the SA, albeit wearing his director’s hat, Mr Friend would have a fiduciary duty to report matters to the management of Friend MTS as would be consistent with acting in the way he considered, in good faith, would be most likely to promote the success of the company.

[57]Pausing at this point, nothing about this conduct alleged at paragraph 45 of the Particulars of Claim comes remotely close to establishing that Mr Friend was in breach of any of his fiduciary duties or obligations under the SA or IA. I accept Mr Friend’s evidence that, subjectively, he saw his continuing role as director (at this point, director of both Friend MTS and FMTS) in promoting the success of the business, and that Mr Friend remained committed to doing all he could to protect the shareholding’s value, within the scope of his roles. Mr Friend was working, both as employee and director, in pursuit of the Friend Group’s interests, as he genuinely perceived them to be. He was doing nothing objectively in competition with the Friend Group. The matters he was involving himself in gave rise to no conflict.

OpSec

[58]Chronologically, it is necessary next to consider the allegations about OpSec. This is one of the two remaining allegations which is said to give rise to loss. The Particulars of Claim state at paragraph 51, under the heading ‘Contact with Competitors’:

“…in November 2024, Mr Friend met with competitors of the Friend Group, IP House and OpSec security. The Company does not know what was discussed. In light of the facts and matters pleaded above, it is likely that Mr Friend discussed providing his services to IP House and OpSec security and/or the development of products and services outside of the Friend Group.”

[59]Paragraph 58.2 alleges that this conduct was in breach of each of Mr Friend’s fiduciary duties. Paragraph 59.3 (through paragraph 58.2, which cross references back to paragraph 51) alleges that this conduct constituted a breach of clauses 10.1.1(a) and 11.4 of the IA and Clause 18.1.8 of the SA. Clauses 10.1.1(a) and 18.1.8 each concern the provision of services to competitors; Clause 11.4 relates to use of confidential information.

[60]The reference to November 2024 appears to be a mistaken reference to the point at which Mr McCarthy says that he was told about Mr Friend’s contact with Opsec. At paragraph 68 of his witness statement, Mr McCarthy said:

‘Against this backdrop, I was receiving additional information about Mr Friend’s activities from other sources. In November 2024, my colleague Giles Wain, who works in our sales team, told me that he had been informed that Mr Friend had spoken with senior individuals at OpSec, one of our competitors, on a number of occasions (some in person and some by call). I was informed that these meetings took place some time between Mr Friend resigning and his employment terminating in October 2024.’

[61]The contact at OpSec with whom Mr Friend had a meeting, in June 2024, was Mr Nortier. Mr Nortier has since become employed by the Friend Group, and gave evidence at trial. Mr Nortier explained that in June 2024, he began to hear rumours of the potential sale of the OpSec anti-piracy division, although he accepted in cross-examination that he did not know in fact whether this was so, or whether there was substance to the rumours. Mr Nortier’s evidence was that Mr Friend said that there could be interest in acquiring part of or partnering with OpSec; Mr Friend’s evidence was that it was Mr Nortier who asked whether FMTS would be interested in acquiring it. On balance, to the extent it matters, I prefer the evidence of Mr Friend: the text message exchange in evidence is much more consistent with Mr Nortier chasing Mr Friend for potential opportunities to benefit himself, rather than the other way around: on 31 July, following the meeting in June, Mr Nortier chased Mr Friend to see if there were ‘further developments’. This appears, from Mr Friend’s response, to relate to a joint corporate event. Mr Friend then responded:

‘Regarding the other options that we discussed, it’s probably best to pick those up with Chris Gibbs. I don’t know if you know him or not, but if not I can give you his details.’

[62]There is no further contact until 12 December 2024 when Mr Nortier reached out again to Mr Friend. He enquired:

‘Have you heard any rumours about Opsec AP being up for sale I got a call from a AP consultant yesterday suggesting the jungle drums were active, and I am trying to figure out if this is just old news.’

Mr Friend replied succinctly:

‘Hi David. No, nothing’s come my way about that’

. Mr Nortier responded, ‘Thanks, I thought the information was old. It would not be consistent with what I am seeing internally.’

[63]As it happened, as is common ground, the then loss-making anti-piracy division of OpSec was not sold to anyone. It was just shut down.

[64]The pleaded allegation (paragraph 51) that the exchanges with Mr Nortier related to opportunities for Mr Friend to work with OpSec in competition with and to the detriment of the Friend Group is entirely without foundation. It is plain that the discussions had not been about Mr Friend’s desire to enter into some sort of competitive arrangement with OpSec. It is also clear that at no time did Mr Friend disclose any confidential information. The corporate event collaboration/partnership referred to in the exchange was, it seems, potentially with Friend MTS and Mr Friend made the entirely appropriate suggestion that Mr Nortier contact Mr Gibbs, Senior Vice President of Sales at Friend MTS, in this regard. The pleaded claim at paragraph 51, and, parasitically, breaches alleged at 58.2 and 59.3 insofar as it relates to OpSec, therefore fails.

[65]The inadequately pleaded allegation, as discussed above, relates instead to the alleged failure on Mr Friend’s part to have passed on the commercial opportunity to purchase the OpSec anti-piracy division. However, to describe the brief exchanges as giving rise to a tangible commercial opportunity which required Mr Friend to report it to others in management is simply not credible. There is no suggestion (nor could there be) that Mr Friend withheld the information in order to divert or exploit the ‘opportunity’ for his own benefit; to the contrary, it is clear that Mr Friend thought, in good faith, that the conversations were of no particular import and contained nothing requiring either action or reporting on his part. Even if the test were one of objective analysis, given the flimsiness of evidence relied upon, such a conclusion was objectively reasonable. Irrespective of the pleading point, the claim that Mr Friend breached either his statutory or equitable fiduciary duties, or contractual duties, in respect of this alleged commercial opportunity as advanced at trial, fails.

[66]For completeness, I was unimpressed with the extraordinarily vague and speculative evidence from Mr Scotter justifying the calculation of the supposed lost opportunity at £5.42m. It is difficult to escape the conclusion that the Claimants’ intention was to include a very large (although unjustifiable) ‘loss’ in the claim against Mr Friend, in the context of their wider dispute.

IP House

[67]Paragraph 51 of the Particulars of Claim, set out above, articulates the same allegation of the provision of competitive services to IP House as to OpSec. Mr Friend’s evidence was that:

“IP House are a relatively new market entrant. There is very little public information about the company, but its formation was announced in a press release on 7 May 2024. I knew of IP House’s CEO, Jan van Voorn, from his time at the music rights collecting society Buma/Stemra, as well as from the industry in general. I was curious about this new company. I therefore suggested that Mr van Voorn and I speak. This happened on 1 July 2024 in a short call. I cannot recall this conversation in detail. As far as I can remember, Mr van Voorn explained that IP House was a business with a focus on brand protection. I explained to Mr van Voorn that my day-to-day involvement in the Companies was being phased out, but I remained (and would remain) a director and significant shareholder. The information Mr van Voorn provided me was not sufficiently material to report to anyone else at the Companies, and from memory the call lasted around 20-25 minutes.I have not had any other contact with IP House.”

[68]This account was not challenged. I accept it. The pleaded claim at paragraph 51, and, parasitically, breaches alleged at 58.2 and 59.3 in respect of IP House fails. 19 July: the instruction to cease contact with customers

[69]The case pleaded by the Claimants is that “on 19 July 2024, Mr Friend was informed by Mr Parker of a potential warranty dispute by NEC pertaining to one of the Friend Group’s services. In response, Mr Friend threatened to contact key customers of the Friend Group, including Sky and the Premier League, to discuss the potential warranty dispute. Doing so could have caused substantial harm to the Friend Group’s reputation and business prospects. In light of the threats made by Mr Friend, his access to the Friend Group’s IT systems was immediately suspended. Access to his email account was subsequently restored on 1 August 2024, but Mr Friend chose not to follow the necessary steps to reactivate it. Mr Friend was also instructed to immediately cease all contact with customers of the Friend Group to avoid Mr Friend making potential harmful comments to customers about the Friend Group, its products and services or its management.”

[70]Thus, the claim sought to portray the decision to suspend access to Mr Friend’s email account, and instruct him immediately to cease contact with all customers, as the result of the threats made by Mr Friend in a call on 19 July 2024. Mr McCarthy’s and Mr Parker’s witness statements aligned with the pleaded case, stating that their decision to suspend access to systems was as a result of the threat made by Mr Friend on a call dated 19 July 2024 to speak to customers about a warranty issue.

[71]There is no dispute that following the call, the following email was sent to Mr Friend by Mr Parker:

“I am now very concerned about the steps you suggested that you may pursue which would be potentially damaging to the Group and its business. I therefore feel the need to remind you that you have duties under both your employment terms and the Investment Agreement to not use the confidential information of the Group for any purpose other than for the benefit of the Group. In order to protect the Group’s confidential information we have taken steps to suspend your access to the computer systems of the Group until we can find a resolution to these matters. Furthermore, we require you to not directly or indirectly communicate orally or in writing with any suppliers or customers (current and potential), including Sky. We consider that if you do so communicate with suppliers or customers, you will be acting improperly and in breach of the duties you owe to the Group Companies and to the other shareholders and of the terms of the legal documents agreed between us.”

[72]Mr Friend’s evidence in his witness statement, elaborating upon his pleaded denial that he was so instructed on 19 July 2024, was that:

“To the best of my recollection, I was not on or around 19 July 2024 “instructed to immediately cease all contact with customers of the Friend Group to avoid Mr Friend making potentially harmful comments about the Friend Group, its products and services or its management”

. Again, to the best of my recollection, no such instruction was given to me until my dismissal letter dated 9 October 2024…. Mr Stenton’s request to me in the Teams meeting call on 19 July 2024 was to not contact Sky. Mr Stenton did not make reference to contacting other customers, or any alleged “harmful comments”….. I have now had sight of an email sent by Mr Parker to my FMTS account at 17:35 (I assume UK time) on 19 July 2024 [FMTS00001926]. That was 18:35 in France. At that moment, I was sitting in a town square in the south of France at a dinner with my family. I remember opening my email while at dinner and beginning to read this email, but my FMTS account was wiped just as I began to read it. I had just been locked out of my FMTS account. I therefore did not have sight of this letter, nor [the instruction] in the letter… I subsequently asked Mr Parker to send this email to my personal email address, but he did not do so. I did not have sight of this email until a year later…”

[73]Mr McCarthy and Mr Parker were both cross-examined on the basis of the existence of 2 documents. The first was dated 18 July 2024 sent between them from their personal email addresses as follows:

[74]The second followed the following morning, before the call that took place later that day, again between personal email addresses:

[75]It was put to Mr McCarthy and Mr Parker that(1) there had been a pre-agreed strategy to cut Mr Friend’s access to company systems, such that it was not, as alleged, responsive to Mr Friend’s threats made during the telephone call on 19 July 2024; and

(2) the motivation for depriving Mr Friend of access to his emails related to the fact that, on 19 July 2024, NEC had submitted a warranty claim against Mr Friend, which alleged in part that there was a potential issue with one of Friend MTS’s products which could have a significant adverse impact on customer relationships, and that the NEC management wanted to prevent Mr Friend from accessing prior emails which might relate to that issue.

[76]In response, Mr McCarthy and Mr Parker’s evidence was to suggest that the email exchange above represented a contingency plan only and whether it was to have been deployed depended upon the outcome of the call with Mr Friend, which they anticipated would ‘go badly’. They denied that the motivation for the removal of access related the warranty issue.

[77]I am unable to accept this as an accurate account. The email exchanges of 18 and 19 July 2024 do not suggest in any way the contingent nature of the ‘plan’. It is odd that there are no other documents relating to the discussions which would likely have preceded the formulation of the contingent plan; and it is odd that it was thought necessary to conduct the exchanges which did take place through private email accounts. I do accept, on the basis of the location of a redaction in Mr Parker’s note of the call of 19 July 2024, that Mr Parker is likely to have taken legal advice, as he said, both before and following the call, and prior to executing the plan to cut Mr Friend’s email access off. I also accept that there was some ‘fluidity’ in the plan (in that the 19 July 2024 draft of the intended statement suggested that Mr Friend had been put on garden leave, and this did not in the event happen). But I have little doubt that their intention to cut Mr Friend’s email access was not a contingent one in any genuine sense. I come to this conclusion, firstly, because of the unsatisfactory way both Mr McCarthy and Mr Parker dealt with the issue in their witness evidence. This evidence was, on any view, partial. It gave the plainly wrong impression that consideration of cutting Mr Friend off first arose after, and solely in response to, Mr Friend’s alleged behaviour on the call on 19 July. Secondly, the purported trigger for implementing the contingent plan does not make sense: cutting off Mr Friend’s email access was a peculiar and somewhat ineffective solution to deal with the perceived threat of Mr Friend contacting Sky about the warranty issue. Put simply, the action would do nothing to prevent Mr Friend from contacting Sky, whether about the warranty issue or otherwise. Third, and most significantly, whilst e-mail access was restored a week later, this was done in such a way as to prevent Mr Friend from accessing the historic contents of his account. That this was other than by design seems highly improbable. At the point of restoration of a (new) Friend MTS email account, the threat that Mr Friend may contact Sky had obviously not subsided; if cutting his email access was a genuine response justified by the threat, it would not have been restored. It is much more likely that the decision by Mr McCarthy and Mr Parker (and potentially Mr Stenton, of NEC) to remove access was to facilitate the loss of access to Mr Friend’s historic email archive, motivated by the wider, and widening, dispute with Mr Friend including the warranty claim. This conduct does not reflect well on those involved.

[78]The second factual dispute which arises in relation to the events of 19 July 2024 is whether Mr Friend learned of the instruction not to contact customers, or whether the wiping of his account occurred just prior to him reading the instruction. Mr Friend was cross-examined on the basis of an account given in the ET Proceedings. The Grounds of Complaint dated 31 January 2025 (i.e. before the date Mr Friend says he first saw the full email of 19 July 2024 in his witness evidence) claim:

“…the Claimant received an email from the Third Respondent which: (i) accused him of transferring confidential information outside of the First Respondent's systems, (ii) instructed him not to contact any of the First Respondent's clients, (iii) indicated that his access to the First Respondent's email and IT systems was being disabled, and (iv) informed him that he was being placed on garden leave for the remainder of his notice period (Detriment 12)…. The Claimant cannot say definitively what else the Third Respondent's email said or whether it said anything further of substance, since his access to the First Respondent's IT systems was disabled while he was reading it and he lost access to the message.”

[79]Mr Friend accepted in cross examination that his complaint in the ET Proceedings was directly contradictory to the position he takes in these proceedings. Whilst he also said, at one point, that his evidence in the ET Proceedings was indeed his memory of what he read when he received the email of 19 July 2024, he also said that he may have pieced together what the email had said from subsequent correspondence. Whilst this aspect of Mr Friend’s evidence was plainly unsatisfactory, I do not conclude that his evidence about the point at which he stopped reading the email was untruthful. This is for the following reasons:(1) Mr Friend reported by email to Mr Parker on 22 July 2024 that ‘whilst reading it, my account was locked and I lost access to the message;

(2) the same email (a) described the 19 July email as accusing him of transferring FMTS’ confidential information outside of FMTS’ systems, and (b) complained at length about the fact that access had been cut off, but made no explicit reference to having been expressly instructed not to communicate with others. Whilst Mr Friend makes reference to his continued intention to fulfil what he saw as his duties, it is improbable that Mr Friend, if he had got as far as reading the instruction within the email, would not have made specific reference to it, and made the point that he considered that Mr Parker was not authorised to give him any such instruction;

(3) the Grounds of Complaint were objectively wrong in at least one (other) respect: that the email stated that Mr Friend was placed on garden leave, which it did not;

(4) the fact that the 19 July 2024 email had instructed Mr Friend not to contact any customers did feature in inter partes correspondence, which Mr Friend read prior to making his ET claim. There is therefore a credible explanation for why the ET claim was incorrect, rather than the, otherwise credible, evidence in these proceedings. I therefore accept that Mr Friend did not receive an instruction not to communicate with customers, because of Friend MTS’s own actions in disabling Mr Friend’s access to the system.

[80]Although not relevant in light of my finding above, I also accept Mr Mansfield KC’s submission that the purported instruction from Mr Parker cannot have derived its legitimacy from Clause 22.2 of the SA, which gives powers to the Board of Friend MTS to instruct Mr Friend ‘not to directly or indirectly communicate orally or in writing with suppliers, customers, officers, employees, shareholders, agents or representatives of the Company or any Group Company (other than purely social contact)’. There is no evidence that the Board authorised the instruction, or that the matter was even discussed by the Board (which Board included Mr Friend). Mr Parker may have discussed giving the instruction with the CEO, Friend MTS’s lawyers and head of human resources, but this is insufficient to constitute an instruction pursuant to Clause 22.2. Indeed, the very fact that the SA contemplates that such an instruction can be given to Mr Friend, but that it is for the Board (rather than e.g. the CEO or any other director) to do so underlines the need for such an instruction to be authorised by the Board. As such, even if Mr Friend had read the instruction, it was not an instruction which, pursuant to the SA, he was bound to follow.

Alleged Breaches: post 19 July 2024

[81]Until 9 October 2024, therefore, the allegations of breach against Mr Friend must be considered through the same lens as in the period prior to 19 July 2024: he remained an employee, albeit on notice, and not subject to any explicit and lawful instruction not to contact customers.

[82]The relevant allegations until 9 October are:(1) the continuation of meetings with BeIN until September 2024 (paragraph

49.1 of the Particulars of Claim). Mr Friend’s uncontradicted evidence was that he attended the last monthly meeting with BeIN in June or July 2024. This conduct did not place Mr Friend in breach of his fiduciary or contractual duties for the same reason as set out in paragraphs 56-57 above.

(2) The continuation of regular meetings with Sky (paragraph

49.2 of the Particulars of Claim), and attending a recurring weekly appointment, organised by Kieron Edwards, each Friday prior to and following 2 August 2024 at 0930 to 1000 (Answer 11.1 to the Claimants’ Response to the Defendants’ Request for Further Information). There is no dispute that Mr Debnam attended the Sky meetings alongside Mr Friend. Mr Friend’s attendance at these meetings was no secret. There is no evidence that Mr Friend’s attendance was for the purposes of competing with the Friend Group or that Mr Friend was engaged in anything other than regular client care, which, at least through to 9 October 2024, was part of his ongoing employment contract. It is noted that Mr Friend’s evidence is that he stopped attending the weekly Sky meetings from 9 October 2024, and this evidence was not contradicted. This conduct did not place Mr Friend in breach of his fiduciary or contractual duties for the same reason as set out in paragraphs 56-57 above.

[83]On 9 October Mr Friend was dismissed with immediate effect as an employee of Friend MTS. At this point he remained a director of Friend MTS (although whether he was entitled to is a matter of dispute elsewhere). He was removed as a director of Friend MTS on 22 November 2024 (the circumstances of which are also disputed elsewhere). There are no allegations which fall specifically for consideration in the period from 9 October 2024 to 22 November 2024. Sky

Weekly meetings

[84]The allegation related to attendance at weekly meetings has been dealt with at paragraph 82(2) above. 18 October exchange/3 December Meeting

[85]These alleged breaches are not said to be causative of any loss.

[86]On 18 October 2024, Mr Friend reached out to Mr Edwards of Sky, identifying that he thought that there might be a watermarking artefact issue on Sky Go on Apple TV, especially on letterboxed content. He indicated that the issues ought to be easy enough to calibrate out, and indicated that if there was anything he could help with, to let him know. He concluded the email:

“If you pass these on to FMTS I'd be grateful if you could remove that it came from me.”

. Although not pleaded, it was put in cross-examination that drawing this to the attention of Sky could be detrimental to the Friend Group’s interests and/or was not consistent with the duty to promote the success of the Friend Group. Mr Friend’s response was to the contrary: this was merely providing a continuation of the client care he had previously provided to Sky. Mr Friend was not pressed on the reason for requesting that his contact with Sky not be disclosed. At the time, lawyers for the Claimants and Mr Friend were engaged in correspondence, which include exchanges about the extent to which Mr Friend was having or had had contact with customers since leaving his employment. Wrongly, on 12 November 2024, Mr Friend’s lawyers represented that he had not had any such contact: he clearly had. There is no doubt that this was unsatisfactory.

[87]Mr Friend attended a meeting at Sky’s headquarters on 3 December 2024. It was originally alleged that he did so using a staff pass, although Mr McCarthy accepted in evidence that this was not the case.

[88]Mr Friend’s explanation of the meeting, which I accept, was that the principal purpose of the meeting was to enquire about the substance of the element of the warranty claim relating to the product being used by Sky. Following the meeting he wrote to Mr Edwards at Sky as follows:

“Good to meet yesterday, and thank you for your time. I was thinking on my way back, would it be of any help for me to assist with the watermarking with the HDR with ASiD OTT v3 integration, even if just sitting with your developers, seeing what they've done so far and what it's looking like, and offering guidance on what might be possible? As I mentioned yesterday I am still a director of FMTS' Group company, and so I can do this in that capacity.”

[89]Notwithstanding the regrettably incorrect information provided about the fact of contact with customers, I do not for a moment consider that any of these interactions was with the purpose of competing, or competing in the future, with the Friend Group. As such, the claim that these interactions were in breach of Clause 10.1.1(c) of the IA, and clauses 18.1.1, 18.1.2, 18.1.4, 18.1.5 of the SA fail.

[90]Similarly, in seeking to assist Sky with the technical resolution of issues, I do not regard Mr Friend as having in fact done or said anything specific which was, or which could reasonably be foreseen to be, harmful to the reputation or goodwill of any Group Company (Clauses 10.2.2 of the IA), or having done anything which may have caused Sky to cease or reduce materially its dealings or intended dealings with the Group or to seek detrimentally to alter its terms of business (Clause 18.1.3 of the SA). Claims under these clauses are not made out.

[91]Neither was there a breach of the Conflict Duty. Whilst Mr Friend clearly had a personal interest (reputational or otherwise) in defeating the warranty claim, that warranty claim was being brought not by the Friend Group but by NEC. The interests of the Friend Group and Mr Friend’s personal interests were entirely aligned in ensuring there was no technical issue with the Friend Group product. Neither do I regard his actions as breaching the Reasonable Care Duty (a case which was barely articulated, and which is not – for example – supported by expert evidence).

[92]The remaining issue is whether, by his actions, Mr Friend failed in his Duty to Promote. This question is to be judged subjectively. I have no hesitation that – as he said in his 4 December email at the time to Sky - Mr Friend honestly believed his status as a non-executive director empowered (and, indeed, in his view obliged) him to take the actions he did in order to promote the interests of the Friend Group. In these circumstances, the claim for breach of this duty fails.

[93]Nevertheless, it would be remiss not to observe, not least in light of ongoing fiduciary duties presently owed by Mr Friend, that from 9 October 2024, he was no longer an employee of the operating company, Friend MTS. The agreement by which he had any operational role with the Friend Group was with Friend MTS, pursuant to the SA. This agreement had been brought to an end by Mr Friend’s own resignation, followed by the cutting short of his notice period. True it is that he remained, and remains, a NED of FMTS, the parent company. Ordinarily, however, the role of a NED is to provide support and guidance to the board of a company. Although it is not necessary to form a concluded view given the subjective test I have to apply (and in circumstances where this point was not subject to detailed argument), it seems to me that the role of an NED does not, and should not without express Board approval, entail involvement or interference in the day-to-day operations of the company. The distinction between executive and non-executive functions is even more acute where the relevant board is that of a group parent rather than the operating subsidiary, in which the NED has no role at all. Moreover, the distinction may be thought particularly important in circumstances where the NED previously had a dual role which had included operational functions, and where that arrangement has come to an end. As such, I have serious reservations about the proposition, implicit in Mr Friend’s case, that the existence of the s172 CA 2006 duty, in good faith, to promote the success of the company somehow creates the authority for an NED to act unilaterally and as they see fit, in an executive function, by involving themselves in the operational affairs of the company (or a subsidiary of the company), for example by interacting directly with the companies’ customers, and doing so without any communication with the company.

Disparaging Comments

[94]By paragraph 50.1, and Answer 14 of the Further Information, the Claimants allege that ‘Contact 15’ of Sky informed Mr McCarthy in or around December 2015 that Mr Friend had been making disparaging comments about the management of the Companies in his meetings with individuals at Sky. This is not a breach said to be causative of loss. Contact 15 is a Mr Brough, who was not called to give evidence. Mr McCarthy’s evidence was that Mr Brough had heard this second hand. There is no detail of what was said, to whom or in what context. Mr Friend accepts in his own evidence that:

“Sky was strongly disparaging about the new management of FMTS during the in-person meeting of 3 December 2024, and it is likely that I expressed equal frustration and concurred with their view. The relations between certain senior staff at Sky and FMTS by that point were already clearly strained. Sky’s lack of trust in the new management was already firmly in place. If anything, the kind of candid and trusting relationship I enjoyed with Mr Edwards and other individuals at Sky served to mitigate the harm caused to the relationship by the new management. Individuals at Sky know and trust me to be candid, and it was clearly in the best interests of FMTS for me to maintain this important relationship of trust with Sky – a relationship that invariably and necessarily included frank and candid conversations.”

[95]There may well be circumstances in which agreement with Sky’s ‘strongly disparaging views’ could reasonably be foreseen to be harmful to the reputation or goodwill of any Group Company, in breach of Clause 10.2.2 of the IA, or having done something which may have caused Sky to cease or reduce materially its dealings or intended dealings with the Group or to seek detrimentally to alter its terms of business, in breach of Clause 18.1.3 of the SA. However, on balance, it is not possible to conclude, given the context of a long professional relationship and the context explained by Mr Friend which I accept, that this breach is made out. Although not determinative of this question, it is relevant there was, at trial, no case pursued that Mr Friend’s interaction with his contacts at Sky, including these exchanges, was in fact harmful to reputation or goodwill, or a cause of a reduction in dealings. I also reject the contention that the conversation as described by Mr Friend placed him in breach of Duty to Promote, at least when viewed subjectively. It was not a breach of the Conflict Duty or the Reasonable Care Duty.

Premier League

[96]These are non-causative alleged breaches.

[97]It is alleged (Paragraph 49.3 of the Particulars of Claim) that Mr Friend met with Mr Cooper of the Premier League on 16 December 2024. The fact of the meeting is not in dispute. Mr Friend explained, and it was not challenged, that he and Mr Cooper have a long-standing personal and professional relationship, and that the meeting was a personal catch-up. There is no evidence that any business opportunities were discussed. The meeting did not place Mr Friend in breach of his fiduciary or contractual duties.

[98]Although not pleaded, the Claimants relied upon an email dated 6 January 2025 in which Mr Friend wrote:

“I understand that, at present, a very significant proportion of the 'not blocked' traffic in the UK is attributable to Cloudflare. I know in other countries action has been taken (sometimes in coordination with them) against Cloudflare in forms of blocking. Back in the early part of last year I wrote a paper on possible ways to address Cloudflare, although I don't know whether this was ever shared by FMTS with you. I was wondering whether progressing something on the Cloudflare front is something that you're looking to do, and whether there was anything that I could do to assist in that? Happy to discuss, if you'd like. Just FYI, as it came up on a call late last year, I'm planning on emailing on the same topic to Matt at Sky.”

[99]The Claimants rely upon a LinkedIn message from Mr Cooper on 26 November 2024 relating to a post by which Mr Friend had updated his status to reflect the fact he was no longer Chief Product Officer at Friend MTS. Mr Cooper asked if the update reflected ‘the new venture’. Much emphasis was placed on the definite article. In circumstances where the cessation of Mr Friend’s employment with Friend MTS was known by Premier League, such a question is unsurprising. Does the question evidence demonstrate the existence of a new venture when all the other evidence demonstrates that no such venture existed? Plainly not.

[100]As with similar exchanges with Sky, I consider that Mr Friend honestly believed his status as a non-executive director empowered him to take the actions he did in order to promote the interests of the Friend Group. Even if objectively wrong about this, I do not consider that the nature of this exchange placed Mr Friend in breach either of his specific ongoing contractual duties or any of his fiduciary duties.

The MPA

[101]Paragraph 49.4 of the Particulars of Claim alleges that on 26-27 March 2025, Mr Friend attended an industry conference on blocking technology hosted in Amsterdam by the MPA, without informing the Friend Group that he was attending and would be speaking at the event.

[102]The allegation as further particularised at paragraph 50.2 is that Mr Friend’s attendance at the MPA event had the potential to cause serious harm to the Friend Group. The pleaded basis for this was as follows:(1) Mr Friend was invited to participate in a discussion on blocking technology, in relation to which the Friend Group is an industry leader, by a prospective commercial partner of the Friend Group. Mr Friend (through solicitors) had admitted that he attended only in his personal capacity and for his own personal reasons;

(2) Vendors such as the Friend Group were not invited to the event, but it was attended by numerous representatives of the Friend Group’s customers and prospective customers;

(3) Mr Friend was introduced by the CEO of the MPA, with which the Friend Group had been in discussions with a view to a partnership driven by specific prospects in North America. Those discussions had been developing productively but ended abruptly at the end of 2024 without explanation;

(4) The Friend Group was contacted subsequently by representatives of various customers to discuss Mr Friend’s involvement at the event and his statements at the event; and

(5) Mr Friend is understood to have divulged aspects of the Friend Group's intellectual property relating to Dynamic IP Blocking to the attendees at this event.

[103]By contrast to the pleaded claim, the MPA Event featured minimally in Mr Oudkerk KC’s written closing. This was limited to(a) a reference to the conference as the context for the lead up to the Interim Injunction Application;

(b) an observation going to the credibility of Mr Friend in relation to his evidence as to the capacity in which Mr Friend had attended;

(c) the assertion of a different breach to that pleaded, namely that in describing himself at the conference as being a representative of FMTS, he was in breach of the Clause 18.1.12 of the SA (relating to the use of the name of the Friend Group);

(d) a reference to an inconsequential meeting between Mr Friend and Mr Kent of BeIN at the conference.

[104]It was suggested that the evidence had made good the pleaded contention that Mr Friend’s attendance at the MPA had the potential to cause serious harm to the Friend Group. The claim that Mr Friend had divulged any confidential information at the event was expressly dropped. It was accepted by the Claimants’ witnesses that Mr Friend had not been introduced by the CEO. Mr Gibbs also fairly accepted that whatever interactions Mr Friend had had with the MPA, they were not connected to the trailing off in interest from the MPA to overtures which he had been making to establish some working relationship. The pleaded claim (at paragraph 65.2 of the Particulars of Claim) that Friend had lost the opportunity to partner with the MPA and to expand in North America was abandoned.

[105]Rather than focus on the pleaded claim relating to the MPA event itself, much of the cross-examination and the closings relied upon communications between Mr Friend and the MPA and an affiliated organisation, ACE, prior to the event. The precise distinction between the two is not important, and I shall refer to them collectively as the MPA.

[106]Chronologically, these exchanges pre-date the MPA event itself, so I shall consider these first (notwithstanding some reticence given(a) the absence of any pleaded issue based on the correspondence and

(b) the fact that these are breaches not said to be causative of loss).

Communications with the MPA

[107]Mr Friend was first contacted by MPA in May 2023, when he was employed by Friend MTS. He was introduced to Okke Delfos Visser of the MPA by Sky. Mr Visser was described as heading up “the MPA global siteblocking strategy” and explained that MPA were looking at “expanding the current siteblocking program (pirate sites/IPTV), into areas such as live events and sports”. Mr Visser explained that “We would need a solution to detect live streams and report those into the ISP automatically, preferably via an API bridge” and that he understood that Friend MTS “have developed these sorts of solutions already for your sports clients. Would be great to discuss if that might also work for our studios needs.”

[108]As such, the MPA were clearly a potential customer.

[109]Contrary to Mr Oudkerk KC’s closing submissions, however, the MPA could not meaningfully be regarded as a competitor, or potential competitor, to the Friend Group. The Claimants’ pleaded case makes no allegations about the MPA being a competitor.

[110]As described by the MPA’s lawyers, Wiggin, in a response dated 15 May 2025 to a rather robust letter from the Claimants’ lawyers, I have no doubt that the MPA is a non-for-profit trade organisation, which (amongst other things) advocates for more efficient mechanisms for the implementation of website blocking orders. There is no evidence that the MPA was, at any time, developing or working on a live blocking technology service itself. Consistent with Mr Visser’s email above, Wiggin explained in the same letter:

‘As a not-for-profit trade organisation, the MPA outsources specialist technical site blocking work to outside vendors’

. If the MPA contracted with an alternative supplier for the live blocking services for the benefit of their members (at some point in the future), they still would not be sensibly regarded as a competitor. Although they would (through their vendors) provide a live blocking service to their members, which FMTS might potentially seek to provide direct, they would more meaningfully remain a potential client, albeit one where in order to win work, FMTS would need to dislodge the incumbent supplier. However, even if Mr Oudkerk KC’s characterisation is correct, nothing turns on it.

[111]On 4 November 2024, Mr Visser contacted Mr Friend asking whether Mr Friend had left Friend MTS “and continued as a consultant”. Mr Friend responded “Yes that’s correct. I’m now independent”. Mr Friend accepted that this was a poor choice of words. Mr Visser explained that the MPA were considering expanding into live blocking (in the context described above) and asked Mr Friend “for a call/consultancy to brainstorm about live blocking”. Mr Friend said “Sure. When’s good?” When he did not receive a response, Mr Friend followed up again to see whether MPA wanted to speak to him. On 21 November 2024, Mr Visser asked for Mr Friend’s “consultancy rate”.

Mr Friend responded:

“it was my intention to work more on a project basis rather than a specific rate. I’m totally flexible on commercial arrangements, though, so when there’s a clearer picture of whether/how we may be able to work together then perhaps we could revisit then.”

[112]On 9 December 2024, following a call on 6 December 2024, Mr Visser wrote:

“I’ve discussed further internally, we would like to take this forward. I would need a quote for your court expert/consultancy services and for the technical Friend MTS live blocking services (re MPA/ACE membership)”

. Mr Friend responded:

“In the past, through FMTS, I’ve worked on a fixed project basis to achieve a particular outcome regardless of how much time is required, which is something that was attractive to its customers and may or may not work for you. I’m happy to discuss and find something that fits”

. Mr Friend responded:

[113]Later in February, after further discussions, Mr Visser wrote:

“As discussed, I am attaching the agenda from the event for your reference. Great that you can attend. Regarding our potential collaboration, I would suggest an hourly consulting fee of GBP 250. Let me know your thoughts, and I’d be happy to discuss further if needed.An immediate workstream would be participating in discussions on the ECH/Quic topic.Also, Sarah (in copy) has a technical issue in a case in Kenya that she would like to raise.”

Sarah VanReempts then emailed:

“Nice e-meeting you. The MPA is in need of an expert witness statement (to be filed before the Kenyan civil courts) rebutting ISP technical points that siteblocking via ISPs is not feasible, nor possible in the current changing context (ie traffic encryption) and URL blocking is extremely costly. Kenyan local counsel however has informed us that that expert is required to be heard by the court in person, albeit this can be done very likely through a video call with the judges. Would you be able to provide such witness statement for the Kenyan court? And if so, I can provide you with the ISPs’ expert report that we require to rebut, also to obtain a budget estimate for your potential report and discuss the timeline.”

Sarah VanReempts then emailed:

[114]Mr Friend replied:

“Yes, I’d be happy to do this. I’ve done this many times, including in the Republic of Ireland and Canada (in the latter I submitted an expert statement, a rebuttal affidavit to a technical report on behalf of a number of ISPs likely similar to the one you reference in Kenya, and I was deposed and examined/cross-examined), as well as involved in fighting such objections in a few French-speaking west African countries. If you’re able to provide me with the ISPs’ expert report I’d be happy to estimate what it would take and give an outline timescale.”

[115]Mr Friend did not, in fact, then provide a quotation, or provide the expert report. There was a further exchange on 25 and 27 February 2025 in which Mr Friend expressed some difficulties about what was really being asked for. There were follow up exchanges in March and April, through to the start of May but (quite possibly in light of the claim), Mr Friend did not come to agree terms or write any report. Mr Friend explained in cross-examination his view that, even if he had gone on to provide a report for remuneration, there would have been no conflict because the expert work, which related to older, static blocking technology, was not something that the Friend Group would have been involved in, or had ever been involved on a stand-alone basis in the past. He also indicated that he was not aware of anyone in the Friend Group who could have done the work, even if inclined. The only evidence to counter this was tendered by Mr White, who stated that, on the basis of the various email exchanges referred to above, Mr Friend described his experience as having been gained from obtaining orders whilst employed by Friend MTS, and that this demonstrated that this was an opportunity Friend MTS could have supported. Mr White also gave general evidence about some ad-hoc services provided to existing customers. However, as I have found, the ‘services’ side of the Friend Group is intrinsically linked to the provision of its software products, including any ‘expert’ work involved in obtaining an order (necessary to facilitate the client’s use of the product). Moreover, as described by Mr White, the expert witness work undertaken by Friend MTS (through Mr Friend) had related (necessarily, given its link to the product being sold or serviced) to dynamic server blocking, rather than static blocking, which, as Mr McCarthy confirmed, had not been offered by Friend MTS for a number of years.

[116]I do not consider on the evidence that his exchanges were endeavouring meaningfully to compete with the Friend Group or, equally, created a conflict of interest.

[117]Similarly, although Mr Friend was perhaps unwisely engaged in preliminary discussions about generic consultancy work given the broader disputes in which he is involved, in circumstances where the precise nature and extent of that work is simply not clear from the evidence (not least because the exchanges came to nothing), it is not possible to conclude on the balance of probabilities that the potential work was going to be work which placed Mr Friend in competition with the Friend Group, not least given the focus of ‘services’ provided by the Friend Group around the sale and servicing of products. Absent the conclusion that the work that Mr Friend may or may not in the future have been paid to do was itself competitive in nature, the mere discussion of rates (or even the not wholly accurate description of himself as ‘independent’) takes the Claimants’ case no further. If the work was competitive, preliminary discussions about rates may well have been in breach of (for example) Clause 18.14 of the SA, and may have placed Mr Friend in a position of conflict; however, that is not a conclusion that it is possible to reach on the evidence before me.

[118]Mr Oudkerk KC submits that there was no justification not to make Mr Visser’s request for a quote for technical Friend MTS live blocking services, made in the email of 6 December 2024, known to others at FMTS. Mr Friend’s evidence was that if he had made Friend MTS aware immediately, the opportunity, such as it was, would founder, and he wished to nurture it further. This approach did not present a potential conflict, in that there is no question that any such services would only ever be provided by Friend MTS, or that Mr Friend was intending to exploit it personally. The lens through which the decision not immediately to tell someone in Friend MTS is whether it placed Mr Friend in breach if his Duty to Promote. I have no doubt that Mr Friend genuinely considered that it was in the best interests of Friend MTS to develop the potential opportunity further. This is not least because – as Mr Mansfield KC pointed out – if one asks ‘quote for what live blocking services?’, there is no obvious answer, as the request was at such a nascent stage. As such, this was not a breach of the Duty to Promote, at least when viewed subjectively.

[119]Finally, one particular focus of Mr Friend’s assistance given to the MPA during trial was his provision of suggested additions to the ‘best practice’ guidance being developed by the MPA. He was not paid for this. The principal thrust of the Claimants’ original case in this respect, supported at trial by the evidence of Mr White, was that the information provided by Mr Friend was proprietary and confidential. This contention was hopeless. As is plainly apparent from public documents (not least UK Court judgments and the open elements of publicly available Court Orders), the mere existence of ‘deny lists’, ‘block criteria’ and ‘block durations’ is no secret. It is, of course, the content of the lists and criteria which is confidential, demonstrated by the fact that this is information which is contained in confidential schedules to the relevant court orders. The generic additions to the ‘best practice’ guide were neither proprietary nor confidential. For completeness, there was plainly no conflict with Mr Friend’s involvement in providing this assistance to the MPA, because it was (both objectively and subjectively) in the interests of the Friend Group as part of supporting the MPA’s general advocacy to make more widely available the use of the very technologies which the Friend Group sells. If Mr Friend did this in a personal capacity, no issue arose; if he did it believing genuinely that his status as a non-executive director empowered him do so in order to promote the interests of the Friend Group, which I consider to be the case, the nature of the assistance given by Mr Friend to the MPA in this regard did not place him in breach either of his specific ongoing contractual duties or his fiduciary duties.

[120]Insofar as relevant, therefore, I do not accept that the unpleaded breaches alleged to have arisen out of the various exchanges with the MPA relied upon (none of which are said to have caused any loss) are made out.

The MPA Event

[121]The Claimants sought to base their pleaded allegations on information provided by Mr Pink of Rogers and Mr Kent of BeIN. Neither was called to give evidence. As summarised accurately by Mr Mansfield KC in Closing, those witnesses giving evidence for the Claimants accepted that neither had told the Claimants that Mr Friend was at the event promoting any kind of competitive service; or that Mr Friend had disclosed any confidential information at the event; or that Mr Friend had attended as a consultant; or that Mr Friend had said or did anything damaging to the reputation of the Claimants; or that they were confused by Mr Friend’s attendance.

[122]I accept Mr Friend’s evidence that he did not, in fact, actively represent himself as separate from the Friend Group at the MPA, notwithstanding the fact that the information previously provided through his solicitors suggested he had been, and that this was confusing and unsatisfactory. The true position is made clear by the attendance list which shows Mr Friend as attending on behalf of FMTS, and I accept that this was shown on his name badge. I also accept as likely that he merely introduced himself with his name without specifically referring to Friend MTS, and that he would in any event have generally been well known amongst many of those attending the event. I do not doubt that Mr Gilmore, a witness for the Claimants who gave evidence about what Mr Kent first told him, accurately reported that which had initially been said to him. However, of greater evidential weight was the transcript of a call between Mr Kent and Mr Gilmore in which it is clear that Mr Kent raised nothing which should have caused any concerns as to the nature of Mr Friend’s attendance at the conference.

[123]Amongst other things, Mr Kent said about his conversations with Mr Friend at the MPA Event, ‘The only other topic that I approached here was about being a subject matter expert on the same topic that I actually spoke to George [a likely reference to George Demetriades, of Friend MTS] about. He was very clear that it would need to be very well defined and it needed to demonstrate that FMTS couldn’t deliver that level of knowledge or skillset’ In other words, Mr Friend was making clear that he could not be involved in something which FMTS could themselves deliver, no doubt in cognizance of his restrictive covenants. Mr Kent further described Mr Friend’s attendance on a panel event as follows:

“He was there as an SME on a panel along with two other guys who I forget who they were, and it was, he basically described the nuances of being able to do live blocking and the challenges that the organisations like Cloudflare and Google present to live blocking. Did he say a lot? Probably not, I think in the 45-minute presentation. He probably spoke about five minutes. There was a guy there from Brazil who did most of the talking. It was very US-centric, to be fair. Now, Jonathan didn't give away anything that nobody, you know, there was no proprietary information given away about the UK blocking. If they just said, you know, there's live blocking and are we meant and over blocking and the risks of over blocking. But again, reiterated that the UK has additional field safes in their blocking processes to avoid that from happening. Very generalistic, high level information, to be fair.”

[124]As such, the suggestion that Mr Friend divulged confidential information at the MPA Event is without foundation. Whilst this has rightly been abandoned, the Claimants were aware of this from the date of Mr Gilmore’s call, in May 2025.

[125]Similarly, there is no evidence to contradict Mr Friend’s account, which I accept, that the only commercial lead related to a conversation with someone from a Norwegian law firm, and that Mr Friend directed the person to the relevant individual to speak to within Friend MTS.

[126]As to the pleaded case that Mr Friend’s attendance at the MPA event had the potential to cause serious harm to the Friend Group, I note the MPA’s own account of where things stood with FMTS after the event, as credibly reported by the MPA’s lawyers in the context of an exchange between Mr Gilmore and a Mr Delfos Visser, of the MPA, at the Alicante EUIPO conference on 30 April 2025:

“During their brief informal conversation, Mr Gilmore mentioned FMTS's eagerness to work with the MPA as a live blocking technology provider. Mr Delfos Visser said to Mr Gilmore that the MPA was considering the possibility of engaging with a provider of live blocking services in the future, subject to input from its member studios, and that if such a decision were made, FMTS would likely be its preferred supplier. No technical, commercial or confidential details were discussed, nor was any form of advice sought or given. Subject to approval from studio members, our client's intention was to explore a potential commercial relationship with your clients.”

[127]Contrary to the Claimants’ allegation, the MPA were saying that, if the attendance of Mr Friend at the MPA event had done anything, it had placed FMTS in position as a preferred supplier for live blocking services, as Mr McCarthy accepted in cross-examination. There is no evidential basis to consider this inaccurate. Mr McCarthy also accepted that the MPA were confused as to why, when seeking to develop a commercial relationship with the MPA, FMTS’ lawyers were making unfounded allegations that the MPA were seeking to go into competition against them or had taken actions with Mr Friend to do so. The principal evidence FMTS were by this stage in possession of about what happened at the MPA event, namely the frank conversation with Mr Kent identified above, did not support FMTS’ suspicions or concerns. This evidence independently supported the MPA’s own account provided by Wiggin. In light of this, there was no rational basis for continuing to consider that, irrespective of whether they thought Mr Friend’s attendance without informing them was inappropriate, in so attending Mr Friend had either divulged any proprietary information or was in any way seeking to set himself up in competition with FMTS to provide live blocking services to the MPA. The continued assertion to the contrary in correspondence from FMTS’s lawyers to the MPA, a potential client, was, as Mr McCarthy appeared to realise under cross-examination, unlikely to be conducive to the development of a commercial relationship. I do not accept, as suggested by Mr McCarthy for the reasons I have given, that this was because FMTS was having to walk a difficult line.

[128]I therefore reject the pleaded claim that Mr Friend’s attendance at the MPA event was to compete with, or compete in the future, with the Friend Group. As such, the claim that this conduct was in breach of Clause 10.1.1(c) of the IA, and clauses 18.1.1, 18.1.2, 18.1.4, 18.1.5 of the SA fails.

[129]Similarly, I reject the claim that, in attending the event, Mr Friend had in fact done or said anything specific which was, or which could reasonably be foreseen to be, harmful to the reputation or goodwill of any Group Company (Clause 10.2.2 of the IA), or had done anything which may have caused the MPA to cease or reduce materially its dealings or intended dealings with the Group or to seek detrimentally to alter its terms of business (Clause 18.1.3 of the SA). Claims under these clauses are not made out. Indeed, the evidence suggests quite the opposite.

[130]There was not a conflict of interest in Mr Friend’s attendance, and to have done so was not in breach of his Reasonable Care Duty. I also conclude that Mr Friend honestly believed his status as a NED of FMTS empowered him to attend, even without reporting his prospective or past attendance to the Board, in order to promote the interests of the Friend Group. Even if he is objectively wrong about this, he was not therefore in breach of Duty to Promote in attending.

[131]Finally, paragraph 83.5 of Mr Oudkerk KC’s closing submissions contains a further unpleaded allegation that by describing himself as being a representative of FMTS Mr Friend was a breach of Clause 18.1.12 of the SA (the only pleaded breach of this clause is the setting up of FriendTP, considered further below). It is a bad point. The reality is that Mr Friend wasan NED of FMTS. Clause 18.1.12 was (wrongly) drafted on the assumption that in ceasing to be employed, Mr Friend would also necessarily cease to be a director of any Group Company; this drafting overlooked the fact (accepted by the Claimants in this litigation) that Mr Friend had the right under the IA to be appointed to the board of FMTS as a Founder Director. He therefore was connected with a Group Company. It is not necessary in the present circumstances to articulate the precise applicable legal analysis justifying this conclusion, but on any view, it would not be right to regard Mr Friend as being in breach of Clause 18.1.12 for representing no more than the truth, namely that he was a director of FMTS.

Serie A/DAZN : Lost Opportunity

[132]This is one of the two alleged breaches which the Claimants maintain have caused them a loss.

[133]Serie A was a customer of Friend MTS until April 2024. DAZN is the broadcast partner of Serie A. Serie A is the Italian equivalent of the Premier League. In the minutes of a board meeting of 26 June 2024, which Mr Friend attended, it was described as one of the “key new business opportunities”[C/1852]. Mr Friend accepted in cross-examination that it was a ‘hot prospect’ for the Friend Group and had been for some time.

[134]Paragraph 43.8 of the Particulars of Claim (which is not taken forward to a particular of breach) pleads ‘On 11 December 2024, Mr Friend stated to Mr Parker that he was withholding potential new customers worth over an estimated £1 million in revenue’.

[135]Mr Parker’s evidence, which he maintained under cross-examination, was that, following a FMTS Board Meeting on 11 December 2024, Mr Parker sought to engage Mr Friend in order to resolve the ‘challenging’ relationship between Mr Friend and the new management. Mr Parker said that Mr Friend rang him the next day, on 12 December 2024, and they agreed to meet in the new year on 7 January 2025 at London St Pancras station. This was then rearranged to 8 January 2025. Mr Parker said that, amongst other things, Mr Friend had told him on the 12 December call that he had a million-pound opportunity in Europe which he was sitting on, and that he found it very difficult to give it to Mr McCarthy. Mr Parker said to Mr Friend that he understood why this might be the case, but that he still had to give the opportunity to the company, and that he should discuss it with Mark Scotter. Mr Parker said that he informed Mr McCarthy and Mr Scotter, at around the same time, of this discussion. The meeting on 8 January took place, at which Mr Parker says that he reminded Mr Friend of his duty to inform Mr Scotter of the proposed opportunity.

[136]Mr Friend, both in the Defence and his witness evidence denied that there was any discussion specific to a commercial opportunity on 12 December, but that there was such a discussion on 8 January 2024. Mr Friend, in his witness statement, described how he was aware from public press reporting that the replacement vendors for Serie A and DAZN had supplied information that led to “overblocking”, and that this had created negative publicity for Serie A and DAZN, as well as for blocking orders more generally (for example, the issues in Italy had been relied upon by those resisting the legalisation of blocking in the USA). Mr Friend said that his intention had been to suggest to Mr Parker that he use his long-standing relationships with Serie A to win the business of Serie A and DAZN for the Friend Group. Mr Friend said that he wanted to discuss with Mr Parker the commercial terms on which he could make that approach on the Friend Group’s behalf, since he was no longer an employee of the Friend Group. Mr Friend said that this did not happen, because Mr Parker ended the conversation before Mr Friend was able to move on to these matters.

[137]The documents show that:(1) On 12 December 2024, Mr Friend was asked by Mr Visser if he could attend a call on short notice and Mr Friend did so.

(2) The following day, Mr Visser (copied to another MPA employee, Ignace Nedee, emailed Mr Friend:

“Good news. The call with DAZN yesterday was positive. Unlikely before they are welcoming feedback/help on improving their processes to prevent future overblocking. They are happy for you/Friend MTS to be involved.” (3) On 17 December 2024, Mr Friend and Mr Nadee had a conversation, following which Mr Friend wrote: “Do send me the outline document that you mentioned, and on Thursday I will add in some guidelines/'must dos' for live blocking. I think that you were waiting for this document to arrange a meeting with DAZN, but if not then do let me know when they suggest and I will make myself available. Also, whether you're in London or not, perhaps we could look to meet in person in early January (if you won't be coming to London then I will come to Brussels) to put some flesh on how we can collaborate to advance live blocking around the world.” (4) The document mentioned in the first sentence is the guideline document, which was provided to him by Mr Visser later that day, and into which Mr Friend had input, as has been considered above. This was provided back to Mr Visser on 23 December 2024. On the same day, Mr Friend wrote: “Following on from our chat a couple of weeks ago, where we also briefly discussed Australia as a possible next market for live blocking, I assume you've seen this news already: https://dazngroup.com/press- room/dazn- advances-global-expansion-with-acquisition-of-foxtel-a-leading-australian-sports-and-entertainment-media- group/” (5) Mr Visser thanked Mr Friend for flagging this, and informed Mr Friend that DAZN had ‘also just obtained a verdict in India, all the more reasons to work with them closely in 2025, to make sure they get it right.’ (6) A meeting was suggested for 8 January 2025, with a possible meeting with DAZN the week after. In advance of that, Mr Friend wrote (when the meeting was changed from in person to Teams: “I'm just conscious of not losing momentum with DAZN (or others as there is clearly a lot of activity at the moment on blocking.” (7) On 13 January 2024, Mr Friend chased Mr Visser to see if Mr Visser had had any luck setting up a meeting with DAZN. He had not. (8) On 16 January 2024, Mr Visse messaged Mr Friend stating: “Just received the following from DAZN in response to my chaser: "not forgotten we are currently working on an updated version. we should be able to share a new version by end of next week."”

DAZN were making reference to their input on the updated guideline document, not some wider commercial relationship. (9) On 22 January 2025, Mr Friend wrote, whilst making arrangements to meet Mr Parker the following day: “I’m just wondering if you had any further thoughts on the aspect of our last discussion regarding commercial opportunities that I would like to introduce into the business. The value of the business that I could introduce compares substantially against the forecast ‘greenfield’ growth that the company is otherwise forecasting.” (10) On 28 January 2024, Mr Visser told Mr Friend that he had not heard back from DAZN. (11) There is no further contact with MPA about DAZN, save for the fact of DAZN’s documented attendance at the MPA event.

[138]As to whether there was an initial conversation on 12 December between Mr Parker and Mr Friend or not, I accept the evidence of Mr Parker that Mr Friend did raise the issue of potential commercial opportunities then in some form or other, because that explains the chronological coincidence of Mr Parker suggesting that there was such a conversation around that time and the fact that on 12 December 2024 there had been a call with Mr Visser which related, in part, to working with DAZN.

[139]However:(1) I do not accept that, at this point, the conversation was specific to withholding £1m of revenue. The email of 22 January 2024 is much more consistent with that having been discussed at the meeting of 8 January 2024; if it had been discussed in such detail on 12 December, then it is likely that an email the equivalent of the 22 January 2024 email would have been sent in the run up to the meeting on 8 January.

(2) Moreover, it is clear from the contemporaneous documents that it was only after 12 December 2024 that Mr Friend seemed to be contemplating the extent of possible opportunities for the Friend Group that DAZN might present internationally. As at 12 December 2024, as the contemporaneous documents show clearly, Mr Visser and Mr Friend were talking solely about the production of industry guidance, and the MPA was looking to involve DAZN – and Mr Friend - in that. Looking at the surrounding messages, it is obvious that this is what Mr Visser was referring to when saying that, ‘they are welcoming feedback/help on improving their processes to prevent future overblocking’. It is therefore this involvement that they indicated that, ‘They are happy for you/Friend MTS to be involved’. The contemporaneous documents clearly support Mr Friends’ evidence, which I accept:

“I was involved in the −− in the preparation of a best practices document, which was for the wider benefit of the industry and Friend MTS in particular, but, you know, other than that, there was no specific discussion other than the MPA were attempting to secure a meeting with DAZN to discuss the adoption of best practice −− or their adoption acceptance, "acceptance" is probably a better word, of the best practices document.”

[140]In circumstances where(a) there had in fact been no direct contact with DAZN even in the context of the MPA obtaining their input into the guidelines and

(b) Mr Friend had neither contacted nor attempted to contact either DAZN or Serie A in relation to the provision of either consultancy services or the provision of live blocking, it is clear that there was not in fact any extant ‘commercial opportunity’ which it was in the power of Mr Friend to either grant or withhold, over and above the general opportunity for any company (be it Friend MTS or a competitor) to contact Serie A with a view to doing business with them on the basis of publicly known information. The exchanges with Mr Visser had not disclosed to Mr Friend any specific information from or about DAZN which was not readily available to anyone else. Whatever he may have said, there was no ‘£1m commercial opportunity’ for Mr Friend to ‘withhold’.

[141]Had there been, it is clear that Mr Friend would not have been entitled, in accordance with the Duty to Promote, or the Conflict Duty, to withhold it pending the agreement of a commercial arrangement with Friend Group.

[142]In addition, although this is not the case advanced, overstating the existence or extent of a business opportunity in order to secure a commercial relationship with the subsidiary of which Mr Friend was a NED might well itself have placed Mr Friend in – at the very least – a possible conflict between Mr Friends’ personal interests and those of FMTS, and/or in breach of the Reasonable Care Duty. However, it is clear that(a) the 22 January 2024 email in fact went nowhere and

(b) by this time, such (indirect) potential contact as there had been with DAZN had entirely petered out. I would add that, even if such a claim were pleaded and established, it would not lead to the losses claimed in the potential Schedule of Loss.

[143]In the circumstances, the allegations fail.

H. The Establishment of Friend TP

[144]There is no dispute that Mr Friend established a company called Friend TP Ltd on 8 January 2024. It is not in dispute that the company has been and remains dormant. Mr Friend’s evidence is that he hasno intention of providing any consultancy services (or other services) in breach of duty or in competition with the Friend Group. The basis for challenging this denial is parasitic on the numerous allegations advanced that Mr Friend was in fact acting in competition. Those allegations have failed. In these circumstances, the claim that the mere creation of the company breaches the anti-competition restrictions or fiduciary duty fails.

[145]There is a further claim that the creation of the company breached Clause 10.2.1 of the IA and/or Clause 18.1.12 of the SA. It is not said that these breaches have caused any loss.

[146]Clause 18.1.12 of the Service Agreement is limited to prohibiting the use of “the name or device of the Company or any Group Company … or name previously used by the Company or any Group Company”. Friend TP Limited is not the name of any of the Group Companies, nor one previously used. There is therefore no breach.

[147]Clause 10.2.1 of IA covenant prohibits the use of “the name or any business or trading name of any Group Company (or any other names which may be confused with such names)”. Friend TP is not in fact the name of any of the Group Companies. Therefore the only relevant question is whether ‘Friend TP’ may be confused with such names. One factor that may be relevant to the question of possible confusion is the precise nature of the services which the Friend TP may, or may not, provide if it emerges from dormancy. This is not yet known. In circumstances where the issue is not relevant to either damages or any relief sought, I decline to draw any conclusion that there is, or is not, the potential for confusion.

I. Whether the Injunction was Justified

[148]As set out in Section A, the thrust of the claim as argued by the Claimants often focussed on the ‘concerns’ as they existed pre-8 April 2024 which, the Claimants say with at least some justification, went either unanswered or unanswered satisfactorily, such that the application for an injunction was justified at that point, irrespective of success or failure at trial.

[149]There is no doubt that the application came about, when set against the context of the wider litigation between the parties and the degradation of their relationships, because (in summary):(1) whilst I am clear as to Mr Friend’s subjective and honestly held view as to the purpose of the actions he took in promoting the success of the Friend Group, Mr Friend’s continuing operational contact with Friend MTS’ clients and potential clients when his only extant role was an NED of FMTS, without seeking permission or reporting back, was behaving in (to put it neutrally) a most unorthodox manner. There was no objective justification for keeping the content of those interactions secret. The extent to which the Claimants’ lawyers’ letters went unanswered would have added to the perceived legitimacy of the Claimants’ concerns. Whilst the pursuit of matters to trial is obviously a different matter, it was only by the service of Mr Friend’s Defence that the Claimants received a detailed response to many of the matters they had been raising in correspondence;

(2) on the other hand, the Claimants saw shadows everywhere, many of which would easily have been dispelled had they seen fit to undertake relatively straight forward investigations, or matters had been approached more rationally, unclouded by the breakdown in relationship. For example, the key allegation that Mr Friend was attempting to set up business in competition with Friend MTS either to provide SaaS services to Sky or to the MPA was not a credible threat. Similarly, the fear that Mr Friend had divulged confidential information at the MPA event should have been simply dispelled by having the conversation with Mr Kent, and communicating with the MPA, before launching the claim rather than shortly afterwards, and by then taking a sensible view of what was, and was not, proprietary information. Additionally, it is notable that the only two allegations which the Claimants advanced at trial as having caused any loss were matters principally based upon (a) information provided by Mr Friend in his Defence and/or (b) disclosure, both of which came into existence after the application for interim relief. Given this, there is force in Mr Mansfield KC’s contention that, on the facts as they ought sensibly to have been perceived to be at the time of the injunction (even accounting for the inadequacy of Mr Friend’s responses), there was not a realistic prospect that the harm caused by Mr Friend’s actions would ever have caused ‘grave and irreparable harm’ to FMTS.

[150]The costs of the interim application itself, not least because once made, there was no contested application, no doubt pale into insignificance against the costs of proceeding to trial (although the Claimants may contend otherwise). Notwithstanding that, failings on both sides are matters which the Court may take into account on the question of costs, upon which the parties will no doubt make submissions following consideration of this judgment.

J. Oppression

[151]Mr Mansfield KC did not shirk from the contention that these proceedings are part of a course of oppressive conduct inflicted by the Claimants on Mr Friend. He relies upon(1) the surveillance of Mr Friend and his family;

(2) the warranty claim; and

(3) the termination of Mr Friend’s employment shortly after the unfair prejudice letter before claim.

[152]The second and the third factors relied upon are simply not matters that I am in a position to form any concluded view about, and in circumstances where it is not necessary for me to do so, I say no more.

[153]As to the first factor, I have little doubt that Mr McCarthy felt that lawful surveillance of Mr Friend was a necessary step in order to ascertain the extent to which Mr Friend was meeting either clients (notwithstanding the absence of any remaining operational role after 22 November 2024) or, potentially, competitors. Providing that surveillance was lawful and proportionate, this would not necessarily have garnered criticism.

[154]However, Mr Friend and his family were subjected to surveillance on 18 days over a number of months. The evidence is clear that a substantial amount of the surveillance involved Mr Friend’s wife and children, often in the absence of Mr Friend. The investigators spent material periods of time outside the Friend family home, where they would have been visible. Mr McCarthy accepted that there can have been no legitimate purposes in this. After the first full week of surveillance, Mr Friend’s solicitors wrote to the Claimants’ solicitors asking whether there was a surveillance operation and making plain the Friend family’s concern and distress about this invasion of their privacy. Once the (apparently intended) covert nature of the operation was lost, this was likely to make further similar surveillance techniques largely pointless. The surveillance company submitted weekly reports attaching daily logs. From these it would have been obvious to Mr McCarthy, which he accepts he looked at, that the nature of the surveillance was inappropriate, invasive, and unproductive. It is to his credit that, under cross-examination, Mr McCarthy accepted that surveillance in this manner should never have happened.

[155]However, I cannot accept as truthful his account that his failure to put a stop to the surveillance was due to inattention, or that the pointless but intrusive nature of the continuing surveillance of Mr Friend’s wife and children (particularly when not with Mr Friend) didn’t register with him at the time. This is not credible, particularly given that surveillance had become the subject of correspondence between FMTS’ lawyers and both sets of Mr Friend’s solicitors (acting in the English and Jersey proceedings), and the distress being caused to the family made known. He cannot have been oblivious to this when he was directly involved in giving instructions for the purposes of that correspondence, in which the Claimants refused to acknowledge the existence of a surveillance operation, and even at one stage suggested that the Friend family may have been the subject of surveillance by someone else. There can be little doubt that, at least after the first week, when the pointless but intrusive nature of the continuing surveillance of Mr Friend’s wife and children was patent, that there was no legitimate purpose in its continuation, at least in the same way which intruded upon Mr Friend’s family. In these circumstances, I am driven to the conclusion that continuing the surveillance of Mr Friend’s home, wife and children was a conscious decision, at the very least wholly reckless to its impact, on the basis that its continuation would bring about some advantage in the context of the wider dispute. This strategy reflects very poorly on those involved in its devising and execution.

Conclusion

[156]The Claimants’ claims fail in their entirety.

Cited in 1 later judgment

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