“… we were having a chat last night and long story short don’t want to miss out on you to Onyx. We’re going to up our offer a bit so that at least economics wise we’re on a par with them, I hope.” (4) On13 June 2024 Mr Ersen had a meeting with Mr Kayaam and Mr Ersen sent messages to his wife which read, “They gonna send contracts” and, “Gonna go through lawyers now”. (5) In WhatsApp exchanges with his wife, Mr Ersen complained on19 June 2024 that he had still not received a contract from Onyx, which he was clearly expecting to have been sent through. His wife jokingly suggested that he go with Geneva Trading, but then said, “Just remembered your sign on.”
“On the application, in accordance with rules of court, of a party to any proceedings to which this section applies, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim— (a) to disclose whether those documents are in his possession, custody or power; and (b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order— (i) to the applicant’s legal advisers; or (ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.” (i) to the applicant’s legal advisers; or (ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.”
“(3) The court may make an order under this rule only where– (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs. (4) An order under this rule must – (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require the respondent, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. (5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.” (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs. (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require the respondent, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.”
“However, in respect of a request for a class of documents it seems to me that notwithstanding the provision which I have read relating to the costs of the application and of compliance with any order made pursuant to it, it is nonetheless necessary to be satisfied that there are documents falling within the classes which are specified and those documents are – not may be – documents in relation to which disclosure will support the case of the applicant or adversely affect the case of one of the other parties to the proceedings.” “Equally, it seems to me that the court must be satisfied that the documents do in fact exist, since it is not right to send the non-party off on a search before it can satisfy itself that no such documents do in fact exist.”
“Second, the threshold condition inCPR 31.17 (3)(a) is lowered by the qualification “likely to”
“Lord Justice Aldous, with whose judgment the other members of this Court (Lord Justice Robert Walker and Sir Anthony Evans) agreed, accepted that the court had no power to make an order underCPR 31.17 in respect of a class of documents if it were established that there were documents within the class that were not relevant to any issue in the proceedings – in the sense that they did not satisfy the threshold condition of “documents ... likely to support the case for the applicant or adversely affect the case of one of the other parties ...”
“… The distinction is between documents which are likely to support the case of the applicant or adversely affect the case of one of the other parties – which can be the subject of an order for disclosure – and documents which, in the event, turn out not to support the case for the applicant or adversely affect the case of one of the other parties – the presence of which within a class does not lead to the conclusion that the class ought not to have been the subject of an order for disclosure.”
“The judgments of this Court in the Novartis case may be taken as authority for the following propositions. First, as we have said, (i)CPR 31.17 gives no power to order a non-party to disclose documents which do not meet the threshold condition in paragraph (a) of sub-rule (3); and (ii) that cannot be circumvented by including documents which do not meet that threshold condition in a class which also includes documents which do meet that condition. Second, the test under the threshold condition is whether the document is likely to support the case for the applicant or adversely affect the case of one of the other parties. Third, when applying that test it has to be accepted (and is not material) that some documents which may then appear likely to support the case of the applicant or adversely affect the case of one of the other parties will turn out, in the event, not do so. Fourth, in applying the test to individual documents, it is necessary to have in mind that each document has to be read in context; so that a document which, considered in isolation, might appear not to satisfy the test, may do so if viewed as one of a class. Fifth, there is no objection to an order for disclosure of a class of documents provided that the court is satisfied that all the documents in the class do meet the threshold condition. In particular, if the court is satisfied that all the documents in the class (viewed individually and as members of the class) do meet that condition – in the sense that there are no documents within the class which cannot be said to be “likely to support ... or adversely affect” – then it is immaterial that some of the documents in the class will turn out, in the event, not to support the case of the applicant or adversely affect the case of one of the other parties.”
“As is stated in Brearley & Bloch’s Employment Covenants & Confidential Information, 3rd edition, paragraph 9.68: “The courts will, however, continue to scrutinise closely the arguments of employees (particularly highly paid individuals and teams moving to a competitor of their employer) who have already secured alternative employment prior to resigning, and who construct arguments of repudiatory breach as a means of avoiding notice periods and irksome covenants. …”.” “The courts will, however, continue to scrutinise closely the arguments of employees (particularly highly paid individuals and teams moving to a competitor of their employer) who have already secured alternative employment prior to resigning, and who construct arguments of repudiatory breach as a means of avoiding notice periods and irksome covenants. …”.”
“Communications between (including between each of them) any of the First to Third Respondents and any other officer, employee or agent of any Onyx entity (including Axis Limited) in respect of Mr Ersen’s recruitment/prospective recruitment by Onyx (including Axis Limited) from1 March 2024 to30 November 2024 .”