Cartlidge Morland (a firm) v Thomas [2011] EWHC 2086 (QB)

[2011] EWHC 2086 (QB)Case No HQ11X00771
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 September 2011
Before
HH JUDGE ANTHONY THORNTON QC
Between
Cartlidge Morland (a firm)ClaimantGerard ThomasDefendant
Ms Holly Stout (instructed by William Sturges LLP) for ClaimantsMr Simon J Brown (instructed by Miller Rosenfalck LLP) for Defendant
JUDGMENT

HH Judge Anthony Thornton QC:

[1]The claimant, Cartlidge Morland (“CM”), is a wealth management partnership whose offices are in Mansell Street, London, E1. It was founded in 1996 and its founding partners, who remain its controlling partners, are Mr Andrew Cartlidge and Mr Charles Morland. CM has an administrative office in Scunthorpe, North Lincolnshire. Ms Nicola McConville is CM’s Finance and Practice Manager, is based in that office and has been in charge there office since February 2003. The defendant, Mr Gerard Thomas, joined CM on 6 July 2004 as an employed consultant In the wealth management field, certainly at CM, the individual who was responsible for a client’s wealth management was referred to as a wealth management consultant although the term “wealth management adviser” was also occasionally used. I refer throughout the judgement to one such as Mr Thomas as a “consultant”. . His employment contract incorporated terms prepared by CM which are set out in a letter dated 11 May 2004 that Ms McConville sent to him and which he signed and dated 23 May 2004. The parties are in fundamental disagreement as to whether this contract also incorporated two additional documents, being a second letter addressed to CM and signed by Mr Thomas dated 23 May 2004 and a list of the names of Mr Thomas’s existing clients that he considered would remain with him when he moved to CM.[2]Mr Thomas started work for CM on Tuesday 6 July 2004 and he worked for that firm until his employment terminated on 14 February 2011 following his notice of resignation in a letter dated 20 December 2010 and the working out of the required eight weeks period of notice. Mr Thomas’s reasons for leaving were his dissatisfaction with what he considered to be the firm’s lack of clear direction, his inadequate financial remuneration which was not commensurate with the increased size of the funds he was managing and the inadequate back-up services that CM was providing him with, particularly in not replacing his assistant who had recently left the firm. He also wanted fresh opportunities elsewhere.[3]The parties are in dispute as to whether Mr Thomas is bound by non-compete and non-solicitation restraint of trade covenants in his contract insofar as these apply to his clients, being the clients that he had brought with him to CM and those who had been introduced to him by such clients once he had started work at CM. CM contends that Mr Thomas is bound by the full scope of this restraint of trade covenant which covers all clients including those he regards as his own. Mr Thomas’s riposte is that a variation, favourable to him and to his ability to take his clients with him when leaving CM, had been both agreed with CM and incorporated into his contract before he signed it. Alternatively, he contends that, in relation to his clients, the restraint is unenforceable as being an unconscionable restraint of trade covenant. He contends that CM, in his case, observed the understanding of both its managing partners, the other partners and the employed consultants to the effect that CM would not apply its restraint of trade covenant to any consultant leaving the firm in relation to that consultant’s clients. Mr Thomas further contends that Mr Turner informed him of this understanding during the negotiations that led to CM offering him employment. Mr Cartlidge and Mr Morland denied the existence of this understanding but Mr Thomas and Mr Turner were adamant that it both existed and was observed by CM throughout their time with the firm, in Mr Turner’s case from July 2001 until his departure in February 2010 and in Mr Thomas’s case from 6 July 2004 until 14 February 2011.[4]Mr Thomas gave notice before leaving CM that he would comply with his restraint of trade covenant save with regard to those clients who, he contended, were not covered by the covenant due to the agreement he had reached with CM when he entered into his contract. As a result, following Mr Thomas’s departure from CM on 15 February 2011, CM urgently applied on 21 February 2011 for an interim injunction restraining Mr Thomas from soliciting orders or providing services to anyone who, in the preceding twelve months, had received financial services from CM. This injunction was granted by Openshaw J on 25 February 2011. The order made on that occasion provided for a speedy trial of CM’s claim for a permanent injunction. This took place over four days between 29 June and 4 July 2011. The trial was also concerned with CM’s claims against Mr Thomas for damages and for a return of its documents in his possession and his cross-claims for loss flowing from CM’s undertaking as to damages and for damages for breach of contract.[5]The trial was conducted with commendable speed and efficiency, assisted by the parties’ agreed use of a simultaneously produced transcript of the evidence. At the trial, four of the claimants’ five witnesses were cross-examined. These were Mr Cartlidge, Mr Morland and Ms McConville and another employee of CM, its IT Manager Mr James Simpson. CM also adduced evidence from the witness statement of Mr John Quigley who is the solicitor who acted for CM. Three of Mr Thomas’s witnesses were cross-examined, being Mr Thomas himself, Mr David Turner and Mr Neil Sandy. Mr Turner had recently become an equity partner of CM at the time that he conducted the negotiations with Mr Thomas about the terms of his prospective employment. Mr Sandy is the Chief Operating Officer of Truestone Asset Management Limited (“TAM”), the company that Mr Thomas left CM to join. Mr Thomas also adduced evidence from the witness statements of three further witnesses, Ms Gail Le Milliére who is Mr Thomas’s wife, Mr John Kenneally who is the solicitor who acted for him and Ms Emmanuelle Ries, another solicitor of that firm who acted for him in, particularly, the interim injunction proceedings. Mr Cartlidge, Mr Morland, Ms McConville, Mr Thomas and Mr Turner were extensively cross-examined, largely to explore and attack their credibility.

The issues

[6]The trial threw up a large number of issues. These issues involve my being asked to determine:(1) What are the critical findings of fact?(2) What were the terms of the contract?(3) Was the employment contract subject to any relevant variation, oral or written condition extraneous contract, collateral contract or promissory estoppel?(4) What was the applicable restraint of trade covenant, what was its meaning and was it void for uncertainty?(5) Did the enforceable part of the restraint of trade covenant protect any, and if so what, legitimate business interests of CM?(6) If so, are these enforceable terms no wider than is reasonably necessary to protect CM’s legitimate interests?(7) Can any unreasonable features of the restraint of trade covenant be treated as having been excised from the contract so that the balance of the covenant may still be enforced or does the covenant fail in its entirety?(8) Is the applicable part of the restraint of trade covenant enforceable or was there an agreement that it would not be enforced?(9) Was CM’s behaviour in seeking to enforce the restraint of trade covenant, in obtaining an interim injunction or in any other relevant way inequitable and/or a breach of its agreement with Mr Thomas?(10) Did Mr Thomas commit any, and if so what, breaches of the covenant? In particular, did he solicit CM’s clients, disclose confidential information belonging to CM to others or fail to return any of CM’s documents to CM?(11) Should the enforceable part of the restraint of trade covenant be enforced by injunctive relief and, if so, in what form?(12) Is CM entitled to an enquiry as to damages?(13) Should Mr Thomas’s damages for any breach of contract by CM or pursuant to CM’s undertaking to remunerate him for loss suffered as a result of the interim injunction be quantified at a later trial or, alternatively, is Mr Thomas entitled now to any, and if so what, monetary relief?(14) Are either CM or Mr Thomas entitled to an order requiring it or him to hand over any documents or confidential information in its or his possession to the opposing party and, if so, what order should be made?(15) Should the draft judgment dated 15 August 2011 be recalled and reviewed?(16) Conclusion

Brief procedural history

[7]Mr Thomas told Mr Cartlidge and Mr Morland at a performance review meeting on 7 December 2010 that he intended to hand in his notice to CM and leave the firm in order to seek fresh outlets for his client portfolio management work. The two partners tried to persuade him to stay at that meeting and Mr Morland again attempted to talk him out of resigning at a subsequent meeting on 17 December 2010. However, Mr Thomas would not change his mind and served notice on CM in a letter dated 20 December 2010. His terms and conditions of employment required him to give eight weeks notice so that his notice would took effect from 15 February 2011. At the 17 December 2010 meeting, Mr Thomas had informed Mr Morland that he would be taking with him his clients as had been agreed before he signed the terms and conditions of employment containing the restraint of trade covenant. Mr Morland said that he would need to check the position with those clients and it could be sorted out during his notice period. Mr Thomas replied by reiterating that he had agreed in his discussions with Mr Turner that the restraint of trade covenant would not apply to his clients. He also informed Mr Morland sometime in January 2011 that he was in discussions to join (“TAM”).[14]Mr Cartlidge and Mr Morland disagreed with Mr Thomas’s contention that he was not bound by the restraint of trade covenant in relation to his clients and they informed him that his restraint of trade covenant covered all clients that he had worked for whilst at CM. Ms McConville repeated this contention in her letter to Mr Thomas dated 9 February 2011 in which she informed him of the practical details of how he should bring his employment to an end on 15 February 2011. The letter stated:
“Having taken legal advice and considered your solicitor’s comments, we remain of the view that you are restricted from soliciting the custom of, or from acting for, any of the firm’s clients in competition with the firm’s business. You are similarly restricted from aiding third party individuals or organisations in the latter regard. Unless a formal agreement is reached in respect of certain named clients, the firm will take affirmative action to protect its business and will claim damages from you in respect of any losses incurred.”
[15]As soon as his notice period had ended, CM’s solicitors wrote a letter dated 16 February 2011 to Mr Thomas’s solicitors seeking a written undertaking from Mr Thomas that he would abide by the full ambit of the restraint of trade covenant contained in his contract. Mr Thomas’s solicitors replied that he planned to contact and, if possible, would continue to advise, the clients that he had brought with him to CM unless CM’s solicitors gave notice by 6.00 pm that day that CM intended to apply for an interim injunction to restrain Mr Thomas and also subsequently issued a notice of that application in the High Court by Monday 21 February 2011. CM’s solicitors issued and served such an application notice and the application was heard by Openshaw J, on notice to Mr Thomas’s solicitors, on 25 February 2011.

The judge granted an interim injunction restraining the defendant in the following terms:

“1. [Mr Thomas] must not, until after this trial of this action or further order, in respect of any Services from any person, firm or company to whom for a period of 12 months prior to 15 February that he or, to his knowledge, any member of [CM’s] staff has sold such services; 2. Accept an appointment to act as independent financial consultant to any person, firm or company to whom for a period of 12 months prior to 15 February 2011 he or, to his knowledge, any member of [CM’s] staff, has sold such services.”
[17]On behalf of Mr Thomas, it is now contended that CM was responsible for there having been material non-disclosure to the judge. Furthermore, it is contended that, had all the relevant material been fully disclosed, no interim injunction would have been granted. It was finally contended that, in any event, CM is not entitled to a final injunction in law and, even if it was, it was no longer entitled to this equitable remedy because CM had not acted with clean hands in its dealings with him before and after his departure from CM.[18]The judge made an order for a speedy trial on the first available date. Pleadings were exchanged and, in the light of the parties’ pleaded allegations, they agreed jointly to instruct an IT expert to forensically inspect Mr Thomas’s personal computer systems in order to ascertain when various documents had been generated and transmitted and CM’s computer systems to ascertain whether CM had tampered with some of the material emails since they had been generated originally The agreement and consequent court order as they related to Mr Thomas’s personnel computer systems are contained in paragraphs 1 and 2 of the joint instructions (trial bundle A/242) and paragraph 8 of the order dated 12 May 2011 (A/67). . This evidence was relevant to Mr Thomas’s contention that the restraint of trade covenant had been modified by some of these documents which he had sent to CM but which CM denied ever having received. The court gave directions which gave effect to the parties’ agreed joint instructions and which had the effect that the IT expert’s reports were admitted as evidence at the trial. Issue 1 – Critical findings of fact (1). Matrix of facts[19]CM. CM was founded as a partnership in August 1996 by Mr Cartlidge, Mr Morland, the principal partners, and Mr Holland. Its core business when founded was the provision of wealth management services to private clients and some corporate clients. These services include the management of portfolios and advice on investments and employee benefits to private clients and employers. CM now also provides stand alone mortgage, pension and life insurance consultancy services, in addition to providing these services as ancillary services to its wealth management services. Mr Cartlidge and Mr Morland had previously worked for Hogg Robinson. CM’s business expanded and, in August 2000, a new partnership agreement was signed by the three original partners and a further partner, Mr Harper, who was based in a newly established office in Exeter. Mr Turner joined the partnership in 2001 as a fixed rate equity partner with a nominal interest in the equity and became a full equity partner in 2003. By the time Mr Thomas joined CM, Mr Shah had also joined and had became a fixed rate equity partner.[20]In 2004, Mr Cartlidge and Mr Morland owned 70% of the firm’s overall equity but the firm was run on a collegiate basis and each of the four London-based partners had management responsibility for different areas of the business. Mr Cartlidge was the firm’s compliance officer and he was also responsible for human resources and legal matters, Mr Morland was responsible for training and competence matters, Mr Turner for marketing and Mr Shah for finance and employee benefits.[21]Wealth management is a very personal business and a particular wealth management consultant will usually develop a trusted long-term relationship with his or her clients. Wealth management consultants were supported within CM by an investment management service which undertook investment decisions and fund research for all CM’s clients. This service was overseen by an investment committee on which several of the partners and senior consultants, including Mr Thomas, sat. This service managed many of CM’s client’s portfolios. Mr Thomas estimated that about 65% of his clients’ portfolios were managed in this way throughout his time with CM. However, Mr Thomas remained directly involved with the clients since he was the point of reference for each client and he also sat on the investment committee and liaised and discussed with the managers the investments of each of those clients. For the other 35% of his clients, Mr Thomas undertook all investment advice directly whilst utilising the assistance of the investment managers and fund researchers as required. CM also had a finance and administration department, based in Scunthorpe, Lincolnshire, which was managed by CM’s finance and practice manager, Ms McConville. Amongst its other duties, this department maintained the personnel files and other paperwork of the firm’s partners and employees.[22]CM was growing rapidly in size at the time when Mr Thomas joined the firm and it has expanded considerably since then. CM now focuses all its wealth management through its funds and the funds under its influence and the role of its investment managers has increased. The firm now holds itself out as being a wealth management firm that provides investment management services, independent financial advice and employee benefit services to a wide range of private investors, trusts, entrepreneurs, partnerships, family companies, PLC's, charities and government funded organisations. This expansion has not affected the nature of the services provided save that a much larger proportion of its clients are companies and public and charitable bodies. This shift of emphasis into fund management was not subject to any articulated strategy. Indeed, the absence of a business plan or clear direction in the period before Mr Thomas gave in his notice was a principal factor in his resignation decision to enable him to seek a new opening since he still retains a preference for private client work. I must, when considering the evidence, keep in mind that the relevant discussions that I am concerned with were taking place in the context of the smaller and more private-client orientated CM of 2004 compared with the larger and more fund management-orientated CM that now exists.[23]Business development and staff recruitment were the joint responsibility of all partners and recruitment at that time was opportunistic rather than planned. The partner approached by a potential recruit would interview that applicant and conduct all contractual negotiations, would introduce him or her to Mr Cartlidge and Mr Morland and would finally promote that candidate to all the partners when they had to decide whether to appoint. Mr Cartlidge estimated that about twelve employment offers were made to those taken on as financial consultants by the firm between 1999 and 2004 and their contracts were in, or based on, a standard form of employment that had been developed by the firm. That standard form contains the restraint of trade covenant that CM contends governs Mr Thomas’s departure from the firm.[24]Mr Turner. Mr Turner worked as an Independent Financial Consultant at Noble Lowndes when, in July 1993, it was taken over by Sedgwick Financial Services (“SFS”) and he then worked for that company as a consultant. Mr Thomas had started to work with SFS in February 1993 as a trainee consultant and the two men worked on the same floor after the merger and became work friends. Mr Turner continued to work at SFS until, by 2001, he had become disenchanted with SFS and, following an introduction to CM through a recruitment consultant, he joined CM as a fixed rate equity partner, a status that he explained was the equivalent of being an employee. Mr Turner brought with him from SFS his clients and Mr Cartlidge agreed with him before he joined CM that he would be allowed to take those clients with him if he left CM in the future notwithstanding the unqualified restrictive covenant contained in his partnership agreement. Mr Cartlidge did not accept that he had agreed to treat the restrictive covenant in this way but I reject his evidence, particularly as it is not consistent with the terms of the agreement that Mr Turner reached with CM on leaving the firm in 2010.[25]Mr Turner became an equity partner on 1 August 2003. He was, by the time he was offered an equity partnership, clearly regarded by Mr Cartlidge and Mr Morland as a successful and useful member of CM and was invited into partnership by CM at a time when it was rapidly growing and looking to expand further.[26]Mr Thomas. Mr Thomas is now aged 41. He started work in September 1990 with Quilter Goodison Ltd when he was 21 and started at SFS as a trainee in 1993 when he was 23. His career developed rapidly once he arrived at SFS. He started as an assistant to two of SFS’s consultants and soon showed his ability working with clients. He became a consultant in March 1995 and, within six months of this promotion, took over the clients of each of the consultants that he had been an assistant to when they left at about the same time to work abroad. A significant number of those clients that he inherited in the 1990s still remained with him when he gave notice to leave CM in December 2010.[27]In 2004, SFS was taken over by the Woolwich Building Society which was then taken over by Barclays Financial Planning (“BFP”), the financial services section of Barclays Bank. The resulting conglomerate financial services provider was not to Mr Thomas’s liking and he started to look for another employer to work for. He had, by then, significantly expanded the portfolio of clients that he had inherited in his early days at SFS so that he had a sizeable and active portfolio that he planned to take with him when he left SFS/BFP. He started discussions with one company but terminated these when it became clear that he would not be allowed to take his clients with him if and when he left that company. He continued to explore the field. By chance, he ran into Mr Turner socially on 18 December 2004 and, in the course of a friendly conversation, Mr Turner suggested to him that he should get in touch and come and see him at CM. Mr Thomas did so and that meeting rapidly led to his becoming a CM employee.[28]Almost all of Mr Thomas’s clients whilst he was with both SFS/BFP and CM were private clients with portfolios which varied in size from the relatively modest to the very substantial. Many of these clients had built up their portfolios whilst working in order to provide them with a pension and an income in retirement. Others had acquired their portfolios following the receipt of significant capital from an inheritance, a divorce, the sale of a business, an enforced redundancy or retirement. Other clients had been introduced to Mr Thomas by one of his clients as a family member, a close personal friend or a beneficiary of trust funds being administered by Mr Thomas. The client bases of Mr Cartlidge, Mr Morland and Mr Turner were similar but their clients also included, in varying degrees, clients who had been introduced by a professional contact such as a solicitor, corporate and institutional clients and those who had initially approached the firm and had then been allocated to an individual consultant. Mr Turner knew Mr Thomas as being a “farmer” and not a “hunter” from their SFS days together. Having got to know him, Mr Cartlidge and Mr Morland regarded Mr Thomas in similar terms. However, he was clearly a very successful “farmer” with a large and appreciative client base.[29]Mr Cartlidge and Mr Morland suggested in evidence that Mr Thomas was not considered to be a catch and had only been taken on because it was thought that he would cover his costs. Indeed, Mr Cartlidge stated in his witness statement lodged in support of CM’s interim injunction application that Mr Thomas had no remunerative following when he joined CM. The only other evidence that might support such a conclusion was the obviously jaundiced views of Mr Thomas’s manager who had only become responsible for him when BFP took over SFS in 2003 and which were therefore based on a very limited experience of Mr Thomas and his clients. Mr Thomas stated that these views were to the effect that his clients were non-profit making. He strongly disagreed with these views and demonstrated their inaccuracy by the size and value of the clients he brought with him to CM. It is clear from the contemporaneous documentary evidence, from the number and nature of the clients he brought with him and from the enthusiasm with which Mr Cartlidge and Mr Morland promoted his being taken on that at the time both men were very keen to take Mr Thomas on because of the large number of clients, many with large portfolios, that he would be bringing with him and that their evidence to the contrary is untrue. (2) Restraint of trade covenants and wealth management consultants[30]Introduction. of Wealth management consultants in their modern form resulted from changes in City practice in the 1980s, particularly the opening up of the stockbrokers’ profession, the introduction of the detailed regulatory structure of financial services and the introduction of IT-backed research and management facilities. These significant developments have led to the growth of wealth management consultants as a specialist group of financial consultants. These consultants combine a long-term personal link with their clients with the provision of their services under the umbrella of a partnership or corporate structure supported by specialist services and the advantages of size. There is, therefore, a relatively short history of the scope and enforcement of restraint of trade covenants in this field, being one where there is particular tension between the interests of the employer to restrict customer solicitation and of the employee to retain the benefit of his or her personally developed client base. This tension arises in other employment relationships but it is particularly acute in relation to wealth management consultants since they not only have a particularly close and confidential relationship with their clients but it seemed, certainly in 2004, that they, their clients and their new wealth management consultancy expected a consultant to port their clientele with them when they moved firms. No expert evidence was called as to the extent to which wealth management consultants in the City are subject to restraint of trade covenants or as to the scope of such covenants and the extent to which they are enforced or relaxed when a covenantor leaves the covenantee. However, the evidence in this case suggests that it was not unusual for a consultant to move between consultancies with their clients unhindered by restraintof trade covenants.[31]Ms Holly Stout, counsel for CM, relied on the judgment of Maurice Kay LJ in Beckett Investment Group Ltd v Hall [2007] ICR 1539, CA. as indicating the context in which a restraint of trade covenant relating to the employment of a financial consultant by a financial services company should be considered. The relevant passage reads as follows:
“1. Any financial services company relies on employees to attract and retain a client base. If those employees who deal directly with clients leave the company and set up on their own account or go to work for a rival company, it is not unnatural that, one way or another, sooner or later, the clients will follow them. Although they have been the clients of the company rather than of its employees, from the clients' point of view it may well be the relationship with an individual consultant in which they have particular trust and confidence. A tension therefore arises between the interest of the company in protecting its client base in the event that one or more of its employees depart and the interest of such employees who wish for the freedom to develop their careers elsewhere. The clients are not captive. In this situation, it is inevitable that employers include in contracts of employment clauses which seek to limit the ability of employees to take the client base with them. This is the context of the present appeal.”
The judgment as a whole is concerned with whether a restraint of trade covenant is unenforceable as being unreasonable or because its wording does not cover clients of other companies in the group. The context in which those issues arose was a case that involved an employer’s wish to enforce the restraint of trade covenant of two former employees, a director and an employed independent financial consultant, of a financial services company whose expertise was in the fields of investment advice, mortgages and pensions. In the case of the director, he had been employed within the same group for some years before entering into the contract in question and the group as a whole was well-established with a very large turnover. However, the employer was not concerned with the niche area of wealth management and the employees were not seeking to distinguish between their clients that they had brought to the employer and clients who they first advised after entering into the contract in question. Moreover, the group was not, unlike CM, relatively new, rapidly expanding and keen to attract new recruits who would bring a substantial client base with them.[32]It follows that although the case has factual similarities to this case, its factual context has significant differences. Moreover, the case is of little assistance in testing whether the parties agreed that the restraint of trade covenant in question should exclude the employee’s clients from its scope.[33]CM’s restraint of trade covenant policy in 2005. There was, in this case, some evidence of the parties’ expectations in 2004 as to whether or not CM uniformly imposed and enforced restrictions on its partners and employees, on leaving the firm, from soliciting or acting for its clients, particularly if those clients were clients of the consultant who was leaving. Mr Turner’s unchallenged evidence was that both Mr Cartlidge and Mr Morland had left Hogg Robinson to set up CM taking their clients with them even though their existing contracts had contained restraint of trade covenants that precluded them from doing so. I do not accept their unsubstantiated explanation that they were only able to take their clients with them when leaving Hogg Robinson because that firm was unable to enforce the covenants because it had repudiated their employment contracts. I prefer the evidence of Mr Turner, based as it is on what they told him when he joined the firm in 2000 and I find that they were able to take their clients with them because Hogg Robinson had no wish to enforce their restraint of trade covenants against them in relation to their clients. Furthermore, when Mr Turner left SFS, he was not prevented from taking his clients with him despite his existing contract containing restraint of trade covenants. Mr Turner was taken on by CM as a fixed rate equity partner which was a status that the evidence shows was more akin to that of an employee than to that of an equity partner. Before being taken on, he was assured by Mr Cartlidge that he would be able to take his clients with him if he left CM even though the restraint of trade covenant that was contained in CM’s partnership agreement, which dated back to 2000, excluded the clients of the partner from its ambit.[34]Mr Cartlidge gave evidence that twelve employment offers were made to consultancy staff between 1999 and May 2004. Two of them contained amended restraint of trade covenants excluding their clients from their ambit. The scope of the restraint of trade covenant in the contract of a further consultant recruited in November 2004 was also varied by agreement. Furthermore, Mr Turner gave evidence that, to his knowledge, five consultants left CM who, to his knowledge were bound by a full restraint of trade covenant but they were allowed to take their clients with them on leaving. It was submitted on behalf of CM that the evidence showed that three of these five consultants were special cases. It was also submitted that CM fully upheld its restraint of trade covenant in relation to the other two of these consultants. I prefer the contrary evidence of Mr Turner in relation to these other two and, as I have found, CM regarded Mr Thomas as a special case when he was taken on.[35]Mr Cartlidge and Mr Morland were not prepared to consider employing Mr Thomas unless he brought his clients with him from SFS/BFP. Mr Shah, another partner, made the same point in an email he sent to Mr Cartlidge and Mr Morland on 30 April 2004 when agreeing to Mr Thomas being taken on. CM clearly considered that there would be no problem in Mr Thomas complying with that requirement since CM offered him employment without making a condition of his employment that he brought his clients with him. Mr Cartlidge suggested in evidence that the only reason why BFP did not hold Mr Thomas to his restraint of trade covenant was because SFS/BFP was in complete disarray at the time Mr Thomas left. However, I do not accept that that was the reason for SFS/BFP not enforcing Mr Thomas’s restraint of trade covenant. There is no other evidence to suggest that that was the reason why Mr Thomas was able to circumvent the restriction in his contract and, moreover, Mr Thomas was doing no more than Mr Turner had done when leaving the same employer, albeit as its predecessor SFS, three years earlier. I conclude that Mr Cartlidge and Mr Morland knew that SFS/BFP would not stand in Mr Thomas’s way when he left with his clients, just as its predecessor had not stood in Mr Turner’s way three years earlier. In short, they both knew that Mr Thomas’s clients were free to move with him. It is also clear that CM did not have a blanket policy that consultant’s contracts would contain a restraint of trade covenant that extended to private clients brought to CM in the first place nor that a restraint of trade covenant covering such private clients would be strictly enforced. Instead, its prevailing policy at that time appeared one that was correctly described by Mr Turner in his evidence when he stated:
“My understanding has always been that clients that you bring with you to [CM] are yours.”
[36]A further piece of evidence was given on this issue by Mr Neil Sandy who is the Chief Operating Officer of TAM, the company who Mr Thomas has joined as a self-employed wealth management consultant. He stated that he had been working in the financial services industry for 22 years for a number of different firms and he also has good experience both of people leaving his firm and of recruiting others to join the firm. In his experience, it was normal for a contract to contain a restraint of trade covenant but it was also normal that the contract would have attached to it a list of clients for whom that covenant would not apply. Mr Sandy was challenged as not being an independent witness. He freely accepted that he was not an independent witness but stated, without contradiction, that he was able to give evidence from his own experience. I accept his evidence on this point as being an accurate reflection of that experience.[37]Thus, the evidence suggests that CM in 2004 was prepared to modify the restraint of trade covenant that would otherwise be imposed so as to exclude the clients brought into CM by a new recruit or was prepared to give an assurance that it would not be enforced so far as his or her clients were concerned. This approach was an obvious corollary of recruiting those who would come into CM with a substantial clientele at a time when it was keen to expand its overall wealth management business. In making this finding, I reject the evidence of Mr Cartlidge and Mr Morland that CM only very occasionally and in fully documented circumstances varied or waived its restraint of trade covenant as it covered a departing consultant’s clients. (3). Negotiations between Mr Thomas and CM[38]Background to the negotiations. Mr Thomas had started to look for another job in the autumn of 2003 because he had become increasingly dissatisfied with the working environment at BFP. He was adamant that he should be able to take his clients with him to any new advisory job that he obtained as well as being able to keep them if he moved on again from his new employer. For that reason, he broke off discussions with at least one company that he approached when he was told that, if he left that company, he would be subject to a restraint of trade covenant covering all the clients he had dealt with which that company would neither amend nor withdraw. On the 18 December 2003, BFP informed all its consultants of the restructuring of its sales force. This intensified Mr Thomas’s wish to leave. Soon afterwards, he met Mr Turner socially at the annual “SFS old boys and girls” Christmas lunch. This informal group comprised those who had worked together on the same trading floor at SFS in the early 1990s. On striking up a conversation with his former colleague, Mr Thomas briefly explained to Mr Turner that the new employee structure that BFP had imposed on him was unsuitable for both himself and his clients. He told Mr Turner that he was looking for a new job where he could continue to provide financial advisory services to his existing clients. Mr Turner replied that there might be an opening at CM for him and the two men arranged to meet at CM’s offices early in the New Year.[39]Mr Thomas’s recruitment was handled by Mr Turner who undertook and completed the relevant negotiations with Mr Thomas on his own with the express authority of the other partners. The decision as to whether to take Mr Thomas on was taken by all the partners and was based on Mr Turner’s recommendation. Mr Thomas dealt exclusively with Mr Turner in relation to all aspects of his contract save for the purely formal administrative matter of receiving CM’s draft contract terms by email and in hard copy through the post and returning the signed contract documents through the post in which formal dealings, he dealt directly or through Mr Turner with Ms McConville.[40]Initial meeting. The meeting that followed from the SFS Christmas lunch took place in early January 2004 in Mr Turner’s office. Mr Thomas and Mr Turner both said that they had a general discussion. During it, Mr Thomas informed Mr Turner of the nature and value of his client base and said that he was confident that he would be permitted to bring his own clients with him if he was offered employment notwithstanding the restraint of trade covenant in his contract. Mr Turner informed Mr Thomas that CM would only offer him employment if he brought a substantial private client base with him. However, as a corollary, CM would allow him to take his own clients with him if he left CM. Mr Turner explained that he was currently subject to a restraint of trade covenant but CM had always made it clear that he would be allowed to take his own clients with him if he left CM. The two men also discussed in general terms the remuneration package that Mr Thomas might expect if he joined CM.[41]Mr Turner clearly had some reservations in his own mind about Mr Thomas’s suitability before they met. He is about ten years older than Mr Thomas and was concerned that Mr Thomas might not have had sufficient go-getting talents to seek out and obtain new clients for the firm. It was of particular concern to CM at that time that their financial consultants regularly obtained new clients for the firm. However, he was sufficiently re-assured by what Mr Thomas told him that he said that he would find out whether Mr Cartlidge and Mr Morland would be prepared to interview him. A few weeks later, he contacted Mr Thomas and said that both the managing partners would like to meet him. Mr Turner set out his reservations about Mr Thomas in an email briefing to Mr Morland about Mr Thomas dated 17 March 2004:
“Gerard has worked for Sedg[wick] for 10+ years but is now very unhappy. Reckons that he has £45k of business ready to write and trail/renewal of £45k pa. Main interest is investment work – not strong on pensions but that may not matter in 12 months time! One area of concern will be new clients – does not really have any sources of new introductions and is not good at opening doors – to that end he is a farmer not a hunter. I have said that our recruitment intentions did not include an investment person at the moment so if you decide you do not want to take things further he will not be surprised.”
[42]Interviews with Mr Cartlidge and Mr Morland. Mr Thomas met Mr Morland on 17 March 2004. Before this meeting, he sent Mr Morland a CV which showed that he was currently responsible for portfolios with an overall value of £13 million and a client base of about 400 private individuals with an average age of about 55. He estimated that he produced between £125,000 and £150,000 new business and £50,000 renewal income each year. This interview went well and Mr Turner emailed him on 17 March and told him:
“Just had a chat with Charles … who thinks we should take things further (you smooth talker). Martine will be in touch to arrange an interview with Andrew and possibly Sanjay at the same time. Hopefully next week before the Partners see each other again at the end of the month.”
Mr Thomas then met Mr Cartlidge soon afterwards on his own.[43]Both interviews lasted about an hour and neither Mr Morland nor Mr Cartlidge had any clear recollection of what they discussed. Since Mr Turner was dealing with the detail of the possible employment contract, the discussions were general and in the nature of a “getting to know you” chat. Mr Thomas outlined the nature and size of his clientele and he satisfied each partner that that clientele was an attractive proposition for CM. He also informed both men that he was confident that he would be able to bring his own clients with him if he was taken on by CM. Neither partner raised the issue of the restraint of trade covenant but both confirmed to him that he would not be taken on if he did not bring his own clients with him.[44]Partners agree to hire Mr Thomas. Mr Thomas impressed both partners. However, Mr Turner remained cool about taking him on as can be seen from this email that he sent to both partners on 7 April 2004: “Had a call from Gerard who is keen to join us. He said that he was not quite sure how things went with Andrew and was I able to give any feedback – no, as I have not spoken to Andrew either. However, he said that over Easter he would do more work on estimating business that he can bring to us on both an initial and an ongoing basis – clearly he wants to provide us with reassurances. My concern is that Gerard had never been a “big hitter” and is certainly not a hunter – though he is a good farmer. We already have AG who is giving cause for concern – I am speaking to him tomorrow – and is also more farmer than hunter. …”.[45]Mr Turner discussed Mr Thomas with both Mr Cartlidge and Mr Morland and, in particular, his concern that he was a farmer and not a hunter. He also discussed with them Mr Thomas’s client base and his projected earnings that Mr Thomas had supplied him with. He also informed both men that Mr Thomas would not be prepared to move to CM with his clients if he would subsequently be prevented from leaving CM with those clients. In his witness statement, Mr Turner stated:
“… in particular [I] told [Mr Cartlidge] and [Mr Morland] that [Mr Thomas] wanted reassurance that if things did not work out with Cartlidge Morland that he would be able to keep his own client base. I told Andrew Cartlidge that I had told [Mr Thomas] precisely what Andrew [Cartlidge] had told me when I myself had been employed that if he left the firm that he would be able to take his existing clients with him.”
Second witness statement, paragraphs 22 and 23.[46]These discussions removed Mr Turner’s reservations about Mr Thomas and all three partners agreed that Mr Turner should continue with the discussions with Mr Thomas on the basis that he would bring his clients with him to CM and would not be subject to any restriction on taking them with him if he subsequently left CM. Mr Turner therefore invited Mr Thomas to send him a detailed breakdown of his earnings. Mr Thomas emailed a breakdown of his clients and the projected income that these would produce on 29 April 2004. Mr Turner emailed the other partners on 30 April 2004 and, based on the figures he had seen, he advised them that there was a case for making an offer to Mr Thomas at a starting salary of £35,000 + benefits. Mr Shah emailed back accepting this proposal but making it clear that Mr Thomas had to bring his client book with him and would at the very least have to cover his costs. Mr Cartlidge and Mr Morland also readily agreed. This enabled Mr Turner to email Mr Thomas on 5 May 2004 that CM would like to talk over the offer of a position at CM with him and invited him for a meeting to discuss his remuneration package.[47]Mr Thomas’s and Mr Turner’s meeting on 7 May 2004. Mr Thomas and Mr Turner met again on 7 May 2004. They discussed Mr Thomas’s spreadsheet that he had sent to Mr Turner a few days previously and the proposed remuneration package. There was no further discussion about the scope of any restraint of trade covenant that would be included in the contract since that issue had already been satisfactorily dealt with at the previous meeting between the two men. At the end of the meeting, Mr Turner said that Mr Thomas would be offered a position and that he would arrange for a draft contract to be sent to him for him to consider and agree.[48]Mr McConville sends out the draft conditions of employment. Mr Turner then emailed Ms McConville on 10 May 2004 and informed her that the partners had decided to offer Mr Thomas a position with CM and asked her to arrange for an offer letter to be prepared which he would sign. Ms McConville prepared a copy of CM’s standard conditions with the remuneration package filled in that had been agreed with Mr Thomas and communicated to her. This document was in the form of a letter dated 11 May 2004 which was addressed to Mr Thomas and opened with this paragraph:
“Dear Gerard We are delighted to confirm our offer of employment to you and this letter is formally to confirm the terms and conditions that apply to your employment with Cartlidge Morland, subject to satisfactory references and a 3 month probationary period. A start date to be confirmed.”
The rest of the letter set out CM’s conditions of contract and the letter ended with the following:
“Would you please confirm acceptance of these terms and conditions of employment by signing and dating the attached copy and returning it to me.”
The letter was signed by Ms McConville (in her maiden name of Ms Gibson) “for and on behalf of CM.” 45. Beneath her signature was the following:
“I confirm that I accept the above terms and conditions of employment ………………………… …………………….. Signature: Date: ”
Signature: Date: ”[49]The letter had a page attached to it as an appendix. This read:
“RESTRICTION OF ACTIVITIES Restraint of Trade Covenant For a period of 12 months from the termination of your employment you shall not, either on your own behalf or any other person, firm or company solicit or seek to obtain orders by way of trade in respect of any services with which you have dealt with on behalf of the Firm, or services of a substantially similar kind from any other person, firm or company to whom during a period of 12 months prior to termination of your employment, you or to your knowledge any member of staff shall have sold such services on behalf of the Firm. If any such person, firm or company should seek to appoint you to act as an independent financial consultant within 12 months of the termination of your employment with the Firm, you must decline to act until the said 12 month period has expired. Firm’s Secrets You shall not, either during the continuation of your employment or at any other time thereafter divulge to another person firm or company any information relating to the Firm or its customers, or any of the business secrets of the Firm which you may have acquired in the course of your employment therewith. Return of Documents on Termination On termination of your employment, you shall deliver to the Firm (without keeping any copies) any documents or other media, recordings or confidential information about the interests or business of the Firm. Each of these covenants is separate from the others and the failure of a Court (or other authority) to uphold one of them, will not affect its ability to uphold the others. I acknowledge that the above provision form part of my Employment contract and hereby undertake to abide by them. Signed ………………………………………... Name ………………………………………… Date …………………………………………..”
[50]Mr Thomas and Mr Turner agree the crucial amendment to the draft restraint of trade covenant. Ms McConville first emailed the draft to Mr Cartlidge for his approval and then emailed the approved copy to Mr Turner who emailed it to Mr Thomas attached to an email dated 11 May 2004 with this covering communication:
“Gerard I am very pleased to attach our offer of employment. Nicola [McConville], our Financial Controller, will be forwarding two hard copies with the various appendices to you, but the enclosed gives you the headlines of the offer. If you would like to discuss or clarify any points, please do not hesitate to contact me. Regards David”
Ms McConville sent two hard copies of this offer letter and its Restrictions of Activities appendix to Mr Thomas as soon as she received Mr Turner’s email and Mr Thomas received these a day or two later through the post. Regards David”

Regards

[51]Meanwhile, on receipt of the email from Ms McConville, Mr Thomas printed down the attached copy of the offer letter and Restriction of Activities appendix and studied them carefully. He then telephoned Mr Turner, on either the 10 or 11 May 2004, and discussed various points of detail with him. As he did so, he made handwritten notes against any point in the documents that he had discussed with Mr Turner so as to remind him of what they had agreed on that point. The original and a copy of the annotated documents were disclosed by Mr Thomas in his principal witness statement and a copy of the annotations was adduced in evidence. Mr Cartlidge in his evidence stated that he was very doubtful of these hand-written annotations and speculated that they might have been written since the injunction hearing on 25 February 2011, particularly as no mention of them was made in his witness statement prepared in a great hurry for that hearing. This suggestion was put to Mr Thomas in cross-examination. He answered these challenges by explaining that he was on a skiing holiday in the days before the injunction hearing and had no access to his papers at home. He denied that the annotations had been invented in 2011. When the annotations are looked at in detail, it can be seen that they all relate to matters that needed to be cleared up in relation to the offer letter before it was agreed and signed. These matters were, in addition to the restraint of trade covenant, concerned with remuneration, hours of work, pension and life assurance, private medical insurance and holidays. These matters were clearly discussed by Mr Thomas and Mr Turner on 21 May 2004 since they needed to be resolved, and were resolved, before Mr Thomas signed the offer letter. I therefore find that the notes are authentic contemporaneous jottings made during the telephone conversation the two men had on 21 May 2004 and that the suggestion that they are forgeries and that Mr Thomas’s evidence about them is untrue is misconceived.[52]The following annotations were written in the margin of the restraint of trade covenant:
“Include existing clients? From Sedgwicks/Barclays This is fine Not include Barclays/Sedgwicks Send list as addendum for offer letter”
. From Sedgwicks/Barclays This is fine

Not include Barclays/Sedgwicks

[53]Mr Thomas’s evidence, which is corroborated by these notes, was that he asked Mr Turner whether the restraint of trade covenant would apply to his clients that he was bringing with him from BFP/SFS. Mr Turner stated that it would not apply to those clients and that he should send a list of those clients to Ms McConville to be added to the contract documents.[54]Mr Thomas sends confirmatory letter to CM following agreement on 21 May 2004. Mr Thomas, being an obviously careful man, followed up this telephone call with written confirmation of what he had agreed with Mr Turner in the form of a letter to Ms McConville. It is clear that this letter was intended to be added to the contract documents. However, he wanted first to clear the wording with Mr Turner. He therefore emailed this letter, which was dated 19 May 2004, to Mr Turner as an attachment to an email he sent him at 12.33 pm on 21 May 2004. The email requested Mr Turner to call him when he had received the email to discuss its contents. The intended attachment read as follows:
“Dear Nicola 19 May 2004 Firstly, many thanks for your letter, dated 11th May, in which you set out the terms and conditions for employment with Cartlidge Morland. I am pleased to confirm to you that I accept the offer and have pleasure in enclosing the copy, contract, signed and dated, where indicated. Following a conversation with David Turner, I would like to clarify a couple of points in relation to the letter. They are as follows: 1. In relation to remuneration and specifically, bonus payments, I understand that your year-end is in July and consequently the level of income received required to earn a bonus will be reduced accordingly on a pro-rata basis until that time; 2. In relation to holidays, I note, “no more than 12 days can be taken during the first eight months”
. However, I have already pre-booked flights and holidays for 2½ days on 1st, 2nd and 5th July, 1 day on 28th July and for 11 days from 9th – 23rd September inclusive and trust this will not cause a problem. 3. Finally, I note the Restraint of Trade Covenant situation and understand that this would not apply to clients that I bring to Cartlidge Morland from my current employer. Whilst hopefully, not full and complete, I attach a list of prospective clients that I believe should transfer to Cartlidge Morland. I hope that the above comments are satisfactory but if you have any queries please do not hesitate to contact me. With regards Yours sincerely Gerard Thomas.”[55]Soon afterwards, Mr Thomas called Mr Turner without waiting for Mr Turner to call him and Mr Turner approved the wording of the letter save that he suggested two minor amendments to it. Firstly, he suggested that it should be redated with the date 21 May 2004, being the date its contents were approved, substituted for the date in the letter of 19 May 2004. Secondly he suggested that a final sentence should be added to the last paragraph before the signature in these words:
“Finally, to confirm, I will be in touch to discuss an appropriate start date in due course.”
He told Mr Thomas to put hard copies of this letter as amended in this way, the client list and the signed and dated offer letter in the post to Ms McConville.[56]Ms McConville receives the agreed confirmatory letter dated 19 May 2004. Mr Turner, having confirmed the contents of the confirmatory letter dated 19 May 2004 with Mr Thomas, immediately forwarded the email and its attachment to Ms McConville at 13.10 pmand the covering email merely stated: “FYI” which clearly meant “For Your Information”.[57]Mr Thomas posts the three contract documents to Ms McConville. On the following day, a Saturday, Mr Thomas amended the letter in the two respects he had agreed with Mr Turner and printed out the letter on his home laptop printer. He also printed out his client list. He then signed the redated letter and signed and dated the top copy of the offer letter with the date 21 May 2004 so that its date coincided with the date of his letter which was being added to the contract. He then placed all three documents in an envelope and posted them to Ms McConville at CM’s Scunthorpe address. He recalled walking to the sub-post office located near his home on that Saturday morning soon after printing down the two additional documents and posting the envelope in the letter box located there. Since the 22 May 2004 was a Saturday, the three contract documents must have arrived at CM’s Scunthorpe offices on 24 or 25 May 2004.[58]The two additional contract documents. Ms McConville’s evidence was that, for some unexplained reason, the two additional documents that Mr Thomas sent with, and added to, the envelope containing the offer letter were not found on Mr Thomas’s personnel file when it was examined in December 2010 following CM’s receipt of Mr Thomas’s resignation letter. This led her to deduce, and repeatedly to assert in her evidence, that those two documents were never sent to CM and, indeed, that the signed offer letter must have been hand delivered by Mr Thomas to CM’s London office some days after 21 May 2010. By that chain of reasoning, CM’s witnesses deduced, and repeatedly stated in their evidence, that the only document forming the contract was the offer letter and that there never had been an agreement whose effect was to modify the restraint of trade covenant.[59]However, the evidence as a whole clearly shows that all three documents were sent in the same envelope on 22May 2004 by Mr Thomas to Ms McConville at CM’s Scunthorpe offices. That envelope clearly arrived at that address soon afterwards. The postage and arrival of the envelope is established by the evidence of Mr Thomas and its corroboration by:(1) The computer forensic evidence of the investigation undertaken by the computer investigations expert jointly instructed by the parties. The expert examined the available electronic information relating to the letter dated 21 May 2004 and his list of clients that Mr Thomas had drafted and he concluded that the two relevant files were last written and last printed down in the period between 07.49 and 09.31 on the morning of 22 May 2004. This examination occurred after Mr Thomas had submitted his witness statements setting out his evidence as to the production and dispatch of all three documents on 22 May 2004 and the supporting evidence showed that it was extremely unlikely that the information of these dates and times could have been forged although the possibility of this occurring could not be totally excluded. This is strong corroborative evidence of Mr Thomas’s evidence on this issue.(2) The offer letter was dated 21 May 2004 and it certainly arrived at Scunthorpe since it was found on Mr Thomas’s personnel file in December 2010 when this was inspected following CM’s receipt of his resignation letter.(3) There can have been no other reason for Mr Thomas to have printed down the two documents on 22 May 2004 other than to send them off together with his offer letter.(4) There is no evidence to support Ms McConville’s suggestion that Mr Thomas hand delivered the offer letter rather than sending it directly to Scunthorpe. Even if he had hand delivered the offer letter, there is no evidence to support the suggestion that Mr Thomas only hand delivered the offer letter rather than, as is to be deduced from the evidence, hand delivering all three documents.(5) Mr Thomas subsequently reached agreement with Mr Turner as to his starting date on 29 May 2004. This is clear evidence of the employment contract having been received by CM prior to 29 May 2004 which it would have been the case had it been sent out on 22 May 2004 as stated by Mr Thomas. (4) Ms McConville’s evidence.[60]It is necessary to consider Ms McConville’s evidence with some care because her evidence was contrary to the evidence of Mr Thomas and Mr Turner on the three matters of particular significance to Mr Thomas’s case. Firstly, she was adamant that Mr Turner could not and would not have agreed with Mr Thomas that the restraint of trade covenant would not apply to Mr Thomas’s clients. Secondly, she was equally adamant that the letter or draft letter, dated 19 May 2004, that Mr Thomas had emailed to Mr Turner was only a draft which was not intended to be sent to or seen by her and was not, therefore, of any contractual significance. Thirdly, she insisted that the two additional documents had never arrived in the Scunthorpe office and that the signed offer letter was probably hand delivered by Mr Thomas to CM’s London office on one or other of the two days he is recorded as having met Mr Turner there prior to his starting work.[61]Ms McConville’s role in the discussions leading to the finalisation of the agreement to employ Mr Thomas, and the putting together of the contract documents constituting his employment contract was a purely administrative one. She maintained each employee’s personnel file and she sent out, and received back signed, the contract documents, filling in any blanks or personal terms as directed by the partner negotiating the contract or Mr Cartlidge having checked the draft. Her evidence on the three matters on which she was so adamant could only, therefore, have been brief. However, it ran to 104 numbered paragraphs, most of which consisted of her comments, impressions and beliefs and little of which consisted of what she could remember taking place. She was, in short, dogmatic, evasive and partisan and her evidence is in consequence unreliable and, on the three matters of significance, rejected for the following reasons.[62]Since Ms McConville was not present at, nor heard, any of the discussions and conversations that Mr Thomas had with Mr Turner, she was not in a position to express a view as to what was agreed or not agreed by them during those two-way verbal exchanges.[63]In relation to the 19 May 2004 letter, her witness statement said this:
“I cannot say with absolute certainty what my thoughts were nearly 7 years ago when I (presumably) read the attachments to David [Turner’s] 21 May 2004 email properly. I can only say what they are likely to have been. What seems likely is that I would have read the second point [relating to his pre-booked holiday plans] as the ‘information’ David wished to convey. … However, the letter from the Defendant dated 19 May 2004 and emailed to me by David Turner was only a draft(her emphasis in her witness statement). It was clearly not the Defendant’s intention or instruction that his draft should be sent to me. That being the case and with no contract having yet been returned, I would have taken little notice of the draft letter at all. Experience has taught me time and again that until a contract has been signed and returned, I should have no expectation whatsoever that a candidate will actually join the firm.”
In summary, Ms McConville stated that she could not remember receiving this email at all. She then speculated as to what must have happened. She concluded that the document was not a letter at all but a draft of a document that Mr Thomas had sent to Mr Turner prior to any discussion between them that set out his proposals on points that he wanted to discuss but which had not yet been discussed and that Mr Thomas’s proposal concerning the amendment to the restraint of trade covenant so as to exclude his clients from its scope, if and when it was discussed, had been or would be rejected by Mr Turner.[64]However, as even a cursory reading of the document shows, it is a letter addressed to Ms McConville in response to her letter of 11 May 2004. It is immaterial that the letter was not signed, was sent originally by email to Mr Turner and was forwarded “FYI” to Ms McConville as an attachment to Mr Turner’s email. The letter clearly showed that Mr Thomas and Mr Turner had agreed, or reached an understanding, that the restraint of trade covenant would not apply to Mr Thomas’s clients and that that understanding was intended to have contractual effect. The only purpose of Mr Thomas sending this letter to Mr Turner “in draft” was to enable Mr Turner to agree that he had correctly set out their earlier agreement on the restraint of trade covenant qualification and Mr Turner was clearly forwarding it to Ms McConville “FYI” so that she would be aware that this agreement had been reached and that it would have contractual effect.[65]Ms McConville clearly did not consider that this agreed qualification of the contract was out of order because she responded to Mr Turner’s email that had forwarded this letter to her “FYI” with an email which stated that “I will let you know when I receive the original & signed acceptance”. Ms McConville was there clearly stating that she would let Mr Turner know when she received from Mr Thomas two documents, namely the original of Mr Thomas’s letter of 19 May 2004 and Mr Thomas’s signed acceptance of her contract letter dated 11 May 2004. When sending that email to Mr Thomas, Ms McConville had clearly noted in her own mind that the contract would contain the qualification to the restraint of trade covenant referred to in Mr Thomas’s letter and had obviously concluded that this qualification was not out of the ordinary nor of sufficient note that it should be brought to Mr Cartlidge’s attention. I find that Ms McConville’s subsequent evidence that sought to downplay the significance of this letter, indeed to treat it as a document of no significance at all, was both misguided and incorrect.[66]It may be that Ms McConville should have emailed this draft to Mr Cartlidge in conformity with his instructions to be shown every document forming part of a proposed employment contract of an intended employee before the contract was entered into. Instead, Ms McConville merely acknowledged receipt of the document in a short email she sent to Mr Turner and, if she is to be believed, merely stored the document in an inaccessible and irretrievable part of her computer memory system and thought no more about it until a copy of it was discovered on Mr Turner’s stored files in January 2011.[67]There are further very unsatisfactory aspects to Ms McConville’s evidence about the “FYI” email. She did not, according to her, print it down and place it on what would have been Mr Thomas’s newly opened personnel file and she did not store it in her system in an accessible manner so that, when her system was searched for documents relating to the restraint of trade covenant following Mr Thomas’s announced resignation, no copies of the draft letter, the “FYI” email or Ms McConville’s email acknowledging its receipt showed up in her system. Her evidence was that the “FYI” email and its attachment were not placed on the employment file because she must have thought that since it was only a draft, it was not important or significant enough to be placed there. She could not account for the “FYI” email and its attachment not being located in her system. They were only finally located in Mr Turner’s outbox by Mr Simpson, CM’s IT manager, in early January 2011 and her email acknowledgement sent to Mr Turner that she had received the email was only located on Mr Turner’s system by the jointly appointed expert in late May 2011. Ms McConville could provide no satisfactory explanation as to why these emails were not, as with all other emails she received, stored or located in her system when it was searched for all restraint of trade related emails.[68]A further unsatisfactory feature of this aspect of her evidence relates to her suppression of the “FYI” email and its attachment when sending relevant related documents to Mr Thomas. Mr Simpson had provided her with a copy of the “FYI” email and its attachment on 17 January 2011 as part of a chain of pre-contract emails that he had discovered. She was instructed by Mr Cartlidge to send copies of this chain, which had all been located on CM’s system, to Mr Thomas. On 18 January 2011, she spoke to Mr Simpson and asked how she could exclude the “FYI” letter and its attachment from the chain of emails she was about to send to Mr Thomas. Mr Simpson, although surprised and concerned about the request, explained to her how this could be done. Ms McConville followed his instructions and forwarded the chain to Mr Thomas with this particular email and its attachment excluded. Mr Thomas did not know about the existence of the “FYI” email at that time, although he clearly remembered that he had sent the 19 May letter for Ms McConville to Mr Turner at the time. The “FYI” email was a highly material document since it supported Mr Thomas’s assertion that he had reached an agreement with Mr Turner that his own clients would be excluded from the ambit of the restraint of trade covenant, that that agreement had been acknowledged by Mr Turner and that its existence had then been brought to Ms McConville’s attention on 21 May 2004 prior.[69]When asked why she tampered with the chain of emails so as to exclude the “FYI” email from those she was sending to Mr Thomas, her only explanation was that CM was not yet in litigation with Mr Thomas, that the 19 May 2004 letter was only a draft to be used by Mr Thomas in discussions with Mr Turner that had not yet taken place, that it was irrelevant and that Mr Cartlidge had instructed her to withhold that particular email and its attachment.[70]Ms McConville’s evidence about the suggested non-receipt of the two additional documents was also very vague and unsatisfactory. Neither she nor her office kept a record of what letters and documents arrived in the post and documents that did arrive were not date stamped. Furthermore, she did not place all documents relating to an employee’s contract on the personnel file so that there was no way of checking what all the material employment-related documents were. Moreover, the employment file did not have a record contained on it of the date when any particular document was added to it. In the case of Mr Thomas’s file, it apparently only contained the signed offer letter so that it was not a file on which any reliance could be placed. It was clear, therefore, that Ms McConville could provide no evidence to rebut the inevitable presumption that she had received not only the signed offer letter but also the accompanying two additional documents. Indeed, the entirety of her evidence that she had not received these two additional documents amounted to assertions such as this one:
“Even 7 years later, I am as certain as can be that David Turner had not agreed any variation of the firm’s restraint of trade covenants with the Defendant and that his intention was not to convey this to me when he forwarded the Defendant’s draft letter dated 19 May 2004.”
She then gave several reasons for holding that certainty of belief, none of which provided any objective support for holding it.[71]Overall, therefore, I am unable to accept or place any weight on Ms McConville’s evidence. I find that she received through the post on 24 or 25 May 2004 all three documents sent to her by Mr Thomas on 23 May 2004 and that she was aware that Mr Thomas’s contract incorporated the qualification to the restraint of trade covenant that he had agreed with Mr Turner because she had received on 21 May 2004, as an attachment to Mr Turner’s email, the letter that Mr Thomas had sent to her dated 19 May 2004 which had informed her that that qualification had already been agreed with Mr Turner and had noted that information without surprise or concern.[72]Post-contract matters – final agreement as to employment contract. Mr Thomas and Mr Turner had a discussion or a meeting on 27 May 2004. An appointment to meet between 14.30 and 16.00 is recorded in Mr Turner’s electronic diary for that day but the contemporaneous emails are worded as if the two men had talked on the telephone rather than meeting on that day. Neither of them had any recollection of the discussion. The inference that the men talked on the telephone rather than meeting arises from the wording of two emails: (1) The first was sent at 15.04 on 27 May 2004 by Mr Turner to both Mr Cartlidge and Mr Morland to inform them that:
“Gerard is keen to move things along before starting on 6th July. Is it in order for him to come into Valiant House [CM’s offices] whilst on Gardening Leave during June – what are we able to arrange without causing waves elsewhere?” (2) The second was an email sent by Mr Thomas in which he “confirmed the agreement he had reached with Mr Turner in a letter dated 4 June 2004 which he emailed to Ms McConville on the same day. This read: “Following another conversation with David Turner, I would like to confirm my start date with Cartlidge Morland to be Tuesday 6th July. Obviously, this will mean that the 2½ days holiday booked on 1st, 2nd and 5th July will now be prior to my joining day.”
I hope that the above is satisfactory but if you have any queries please do not hesitate to contact me.”[73]It is, however, immaterial whether the men met or talked on the telephone. They clearly reached agreement as to Mr Thomas’s starting date on 27 May 2004 and this letter and the discussion it confirms could, given the context of these contract negotiations, only have taken place once Mr Thomas’s contract had been finalised and taken effect. This is because, in context of these negotiations, the parties would not have agreed the date for Mr Thomas to start work prior to the contract having been finalised and entered into. The contract was only finalised and only took effect once CM had received a copy of the signed contract dated 21 May 2004. CM did not receive, and could not have received, that signed contract without also receiving the other two documents that Mr Thomas sent to CM in the same envelope with the signed contract on 22 May 2004. It follows that this evidence, when considered in the light of the preceding discussions and negotiations, points irresistibly to the signed contract and the two accompanying documents being received by CM at its Scunthorpe office prior to 27 May 2004.[74]The final piece in the jigsaw is a letter drafted by Mr Thomas on his home laptop and sent through the post to Ms McConville dated 4 June 2004. This reads:
“Dear Nicola Following another conversation with David Turner, I would like to confirm my start date with Cartlidge Morland to be Tuesday 6th July. Obviously, this will mean that the 2½ holiday booked on 1st, 2nd and 5th July will now be prior to my joining day. I hope that the above is satisfactory but if you have any queries please do not hesitate to contact me.”
Ms McConville’s evidence was that this letter never arrived at the Scunthorpe office and, had it arrived, she would have emailed a response and placed the letter on Mr Thomas’s personnel file but it was not found there. I reject the evidence that the letter never arrived for similar reasons to my rejection of her evidence as to the suggested non-arrival of the two additional documents. Moreover, Ms McConville could not readily have emailed Mr Thomas at that time since he was not working and was on gardening leave at home and, so far as the evidence suggests, she did not have his home email address.[75]Mr Morland confirms the agreed variation of the restraint of trade covenant. A few weeks after Mr Thomas started work at CM, he was talking to Mr Morland at one of a regular series of meetings Mr Morland had with him to discuss progress and the transferring of clients from SFS/BFP to CM. Mr Thomas was specifically discussing the clients who had come with him to CM and, in the course of that discussion, Mr Thomas asked for confirmation of the assurance he had been given by Mr Turner that, in the event of his leaving CM, the clients he had introduced into the firm would be deemed to be his. Mr Morland confirmed that this was an understandable question and that Mr Thomas was correct in assuming that he would be free to take his clients away with him if and when he left CM. (5) Mr Thomas’s and Mr Turner’s credibility[76]Introduction. Mr Cartlidge and Mr Morland in evidence made repeated suggestions that Mr Thomas and Mr Turner’s critical evidence was untrue, unreliable and even concocted and that, in Mr Turner’s case, maliciously motivated by his anger at the acrimonious circumstances in which he left CM in February 2010. It is therefore necessary to consider carefully the basis that they both put forward to support their collective belief that Mr Thomas’s and Mr Turner’s evidence should be rejected as being lies at worst and wholly unreliable at best.[77]Mr Thomas. Mr Thomas was said to be an unreliable witness for a number of reasons. The principal reason was that he could not be believed when asserting, as he did frequently in his evidence, that he would not have agreed to move to CM unless he had obtained an unequivocal assurance that he would be permitted to leave CM with all his clients and that they would not be within the scope of the restraint of trade covenant. Had this been his belief before joining CM, it was suggested, he would have referred to this point from the outset whereas he never mentioned it to Mr Cartlidge and only mentioned it to Mr Morland four months after he had started work during one of their early feed-back meetings. It was also suggested by both Mr Cartlidge and Mr Morland that he was not clear, when first raising his wish to leave, whether or not he was bound by the full width of the restrictive covenant in his contract. It was also suggested that he had been evasive in not providing access to his computer to enable the letter dated 21 May 2004 to be verified.[78]These points, and others of even less significance, do not collectively or individually point to Mr Thomas as being untruthful or unreliable. Overall, he gave the impression of being a careful and thoughtful witness, consistent with his professional reputation of trusted probity when dealing with his many clients and their portfolios. The two potentially most telling signs of unreliability were that he was not sure whether he was bound by the restraint of trade covenant in relation to his clients when first discussing his possible resignation and that he had not raised this topic with either Mr Cartlidge or Mr Morland when interviewed by them. However, it is clear from the evidence that his uncertainty as to the restraint of trade covenant only extended to an intermediate category of clients, being those who had been introduced to him and CM by one of his own clients. The evidence showed that he was always clear that the restraint of trade covenant did not cover his own clients. As for his suggested diffidence in raising the restraint of trade issue with Mr Cartlidge and Mr Morland, it has to be remembered that he was negotiating solely with Mr Turner and had already reached agreement on this topic before he met Mr Morland on 17 March 2004. The purpose of that meeting and the subsequent meeting with Mr Cartlidge was for him to be interviewed by the “bosses”. They set the scene and he responded. Both discussed his clients and experience with him at length and, if they chose not to mention the restraint of trade covenant and its application or non-application to these clients, it is perfectly understandable that he would not raise the issue himself. He had no need to, the subject had been raised and agreed with Mr Turner. Finally, it was suggested that he and Mr Turner had colluded to prepare and present a unified front as to their agreement about the restraint of trade covenant when no such agreement had in fact been reached. However, the evidence does not begin to identify any such collusion. Indeed, the evidence suggests that the two men had only limited contact with each other during the preparatory stages of the trial.[79]Mr Turner. On behalf of CM, it was submitted that Mr Turner was a dishonest witness who had, in collusion with Mr Thomas, lied when stating in evidence that he had agreed with Mr Thomas that CM’s restraint of trade covenant would not be enforced if he left CM in relation to his clients. It was further suggested that Mr Turner’s motive for perjuring himself in this way was one of revenge and malice resulting from CM discovering that he had been soliciting CM’s clients in breach of contract and of assurances he had given CM and having then been punished for that dishonesty. This suggested unreliability of Mr Turner’s evidence must be considered in the light of the quite remarkable animosity displayed by both Mr Cartlidge and Mr Morland to Mr Turner. This can be seen from this passage of Mr Cartlidge’s witness statement:
“Having been caught, financially punished and covenanted disadvantageously, David Turner bears a grudge. I believe he would say anything to disadvantage the interests of Cartlidge Morland and/or Charles Morland and me personally. This is reflected in the evidence he has previously given in these proceedings, much of which is directly contradicted by the contemporaneous documents we have provided.”
[80]The background to this adverse view of Mr Turner’s probity, which was shared almost word for word by Mr Morland, was the perceived dishonesty with which Mr Turner negotiated a severance package in February 2010 following his having given notice to leave CM purely for the purpose of career advancement. Both partners formed the view, soon after the package had been agreed, that Mr Turner had been soliciting CM’s clients behind their backs during the negotiations having assured them in the early stages of the negotiations that he had not solicited, and would not solicit, CM’s clients. The two partners contended that, following their discovery of what they saw as being perfidious behaviour, they subjected Mr Turner to CM’s disciplinary process and, having found against him, were able to renegotiate his leaving package in a way that was highly disadvantageous to Mr Turner.[81]Quite properly, these matters were not explored in any great detail in evidence since it is not usually admissible to adduce evidence of issues which are only relevant to the credit and credibility of a witness. However, Mr Turner was cross-examined about these events and some of the relevant documents were in the trial documents. It appears that Mr Turner was working out his notice and was due to leave CM on 26 February 2010. His severance agreement was negotiated with Mr Morland, drafted by a solicitor and presented to him for signature about ten days before his departure date. Mr Turner was by then on gardening leave and was reluctant to sign the agreement without it being amended in various respects. On CM’s evidence, Mr Thomas’s reluctance became known to CM on 16 February 2010, by 17 February 2010 Mr Morland had discovered what he considered to be good evidence of solicitation by Mr Turner of CM’s clients, on 18 February 2010 he held an investigatory meeting with Mr Turner and on 22 February 2010 held a disciplinary hearing to answer charges that he had attempted to solicit 25 named clients of CM. Mr Morland contended that Mr Turner admitted this charge at the meeting, at which only he and Mr Morland and a note taker were present. That led to further negotiations and a Departure Agreement was negotiated and entered into on 26 February 2010.[82]The terms of this agreement are, however, consistent with Mr Thomas’s evidence and inconsistent with CM’s evidence. Mr Thomas stated that he had not acted improperly or dishonourably during the negotiations and that he had only spoken to a limited number of clients in that period and then only because they had contacted him. He was, in those conversations, careful to avoid solicitation as he was mindful of his agreement not to solicit during the negotiations. He also stated that the final agreement was not detrimental to him, he did not have to make any payment to the partner or CM which would not otherwise have had to be made and, under its terms, he was able to take his own clients away with him. Indeed, it was similar in terms to the draft agreement that he had negotiated previously and, most significantly, he was entitled to take his clients with him. The only payment that he had to make to CM that he would not have had to make had this dispute not arisen was a sum of £8,000 towards the legal costs of drafting and preparing the Departure Agreement. He explained that he had entered into the agreement following a commercial decision that this was the best that he could achieve without recourse to legal proceedings. He was adamant in his evidence that he had not solicited any client and had only spoken to approximately 13 of CM’s clients following his resignation letter because they had cold-called him. He did not solicit these clients and had not committed any breach of contract in relation to them. CM did not seek to adduce rebuttal evidence of Mr Turner’s evidence which, as I have already found, was consistent with the terms of the Departure Agreement.[83]I conclude that there was no evidence of any of the matters raised so trenchantly by Mr Cartlidge and Mr Morland in their evidence or that Mr Turner had behaved in any reprehensible way during those negotiations or that he was ill-disposed to his former partners. Rather, Mr Cartlidge and Mr Morland obviously have a deep-seated grudge about Mr Turner that raised its head during the commercial leaving discussions and boiled over when they discovered that their challenge to Mr Thomas’s evidence was being so effectively refuted by Mr Turner. These feelings of animosity were, in part, demonstrated by the considerable weight that they placed on the adverse findings reached by Mr Morland in the so-called disciplinary proceedings. These proceedings were, in reality, two hurriedly called meetings that took place within three working days of the suggested discovery of Mr Turner’s acts of solicitation. They were not, save in name, disciplinary proceedings at all. Nothing was adduced in evidence to undermine or contradict Mr Turner’s evidence to the effect that he had not solicited any clients nor misused any of CM’s confidential information and nothing had ever been provided to Mr Turner to substantiate Mr Morland’s bald assertion that Mr Turner had not dealt in good faith with CM, had sought to solicit CM’s client’s away from the firm and had wrongly used CM’s confidential information to benefit himself.[84]I therefore conclude that Mr Turner’s evidence was reliable and honest and that, in giving evidence and in his dealings with CM prior to his departure from the firm, he behaved with scrupulous integrity. I was particularly impressed that Mr Turner’s evidence on all vital matters was corroborated, consistent and obviously not in any way the result of collusive discussions with Mr Thomas. (6) Mr Cartlidge and Mr Morland’s credibility[85]I was unable to place much weight on the evidence of Mr Cartlidge and Mr Morland. Neither, of course, had been present at, nor had heard the contents of, any of the material discussions between Mr Thomas and Mr Turner. However, their evidence was lengthy, partisan and lacking in objectivity. The evidence also showed that they displayed great and unwarranted hostility to Mr Thomas in all their dealings with him once it became clear that he was serving contractual notice of the termination of his employment with him. They both assumed from the outset of those dealings that Mr Thomas was lying when he stated that it had been agreed with Mr Turner that the restraint of trade covenant would not cover his clients, that he had conspired with Mr Turner to lie similarly, that he had forged the 21 May 2004 letter, that he had lied in asserting that he had sent both additional documents and his letter dated 4 June 2004 to Ms McConville and that he had forged the annotations on his copy of the offer letter. Furthermore, both men asserted throughout the proceedings that Mr Thomas was guilty of conduct which, although these words were not used, would have amounted to forgery, conspiracy to pervert the course of justice, perjury and fraud if established. Both men showed when giving evidence that they continued to hold these views notwithstanding the forensic evidence that they had seen, and the evidence that they had seen that Ms McConville had received a copy of the 19 May 2004 letter and that Mr Thomas had returned a signed copy of the offer letter dated 21 May 2004. They also continued to believe that Mr Turner was a liar on the basis of what turned out to be a highly inaccurate and prejudiced view of the terms on which he left CM. These views were set out in the witness statements both provided for the injunction proceedings, the fuller witness statements that they provided for the hearing and in their oral evidence when being cross- examined.[86]On behalf of CM, it was contended that Mr Thomas’s behaviour with regard to his making available the documents stored electronically on computers or USB sticks within his control for forensic examination showed that his evidence as to what was agreed in May 2004 was dishonest and was not to be relied upon. These contentions were advanced very much as a “last stand” submission. The situation with regard to this matter was, in summary, as follows. After the parties’ agreement and the court’s order that the relevant electronically stored documents held by both parties should be forensically examined, the Master ordered Mr Thomas to preserve relevant documents and emails on his computer. However, these documents were only stored on his wife’s work-issued computer which she had lent him for the sole purpose of creating and sending by email the particular contract documents in issue in this case. He therefore complied with the Master’s order by storing all such documents onto a USB stick and he then refused the jointly instructed expert access to his wife’s computer because her employers would not consent to its being forensically examined. The USB stick was made available for inspection and the report of the joint expert following that inspection was adduced in evidence at the trial. Ms Stout submitted that the jointly instructed expert “could never be certain of the document’s origins” when inspected in the medium of the USB stick. However, the terms of the expert’s report were such that there was no scope for reasonable doubt as to the genuineness of the documents and as to the dates that the relevant documents were created and printed down. Moreover, Mr Thomas could do no other, to comply with the court’s orders, than store the relevant documents on a USB stick and then make that available for inspection and to refuse the expert access to the original computer which was not in his power or control and which access had been refused by the computer’s owner. It follows that Mr Thomas’s behaviour in relation to these documents was beyond reproach.[87]It was forcefully contended on their behalf that they had not prejudged Mr Thomas and had not formed any firm view as to his dishonesty. They had been quite properly deeply sceptical of Mr Thomas’s statements that he had reached an agreement with Mr Turner that was so favourable to him and were entitled to remain deeply sceptical given his suspicious behaviour in relation to the disclosure of his documents and the reluctance he showed in allowing his USB stick to be forensically examined by the jointly instructed expert. However, as I have found, their views about Mr Thomas’s lack of probity went far beyond deep scepticism. There never was any basis for them to consider that Mr Thomas was dishonest and even if it was reasonable to have some concerns at the time he gave notice about his having reached an agreement with Mr Turner about his clients, those concerns could and should have evaporated soon afterwards and long before Mr Thomas had worked outhis notice period.[88]Conclusion – credibility. In short, I found both Mr Thomas and Mr Turner to be credible and reliable witnesses and their evidence to be consistent and corroborated on the material parts of their evidence by other evidence. Equally, I found Mr Cartlidge, Mr Morland and Ms McConville’s evidence to be both unsatisfactory and unreliable. In reaching my findings of fact as to what was agreed by Mr Thomas and Mr Turner and as to what happened during those discussions, I have taken account of the entirety of the evidence and my findings as to the credibility of the relevant witnesses.

Issue 2 - What were the agreed terms of the employment contract?

[89]I find that the employment contract came into being in this way. CM made Mr Thomas an offer in the terms of the offer letter dated 10 May 2004. Mr Thomas made CM a counter-offer in the terms of the signed offer letter and the two additional documents sent to CM on 22 May 2004 and received at its Scunthorpe office in ordinary course of first class post soon afterwards. That counter-offer was accepted by CM when Mr Turner agreed with Mr Thomas on 27 May 2004 that Mr Thomas would start work on 6 July 2004. Mr Turner had actual, and implied, authority to bind CM to a contract in those terms. Furthermore, the terms of the restraint of trade covenant, and in particular the exclusion of Mr Thomas’s clients from its ambit, had been agreed between Mr Thomas and Mr Turner orally on at least three previous occasions, namely at their meeting in January 2004 and by telephone on 10 or 11 May and 21 May 2004 See paragraphs 40, 51 – 53 and 54 – 55 above. . These agreements were clear and in the same terms as set out in the letters dated 19 and 21 May 2004. These discussions cannot by any stretch of the imagination be characterised as amounting to anything less than a firm commitment made on behalf of CM by Mr Turner that the restraint of trade covenant would not apply to clients that Mr Thomas brought to CM. Issue 3 - Was the employment contract subject to any relevant variation, oral or written condition extraneous to the contract, collateral contract or promissory estoppel?[90]This issue does not arise since the terms of the contract were express. There was nothing in the terms set out in the offer letter that precluded additional written terms being added to those terms by another document that was also incorporated into the employment contract. In those circumstances, there is no need to consider whether the understanding or agreement that the restraint of trade covenant did not extend to, or cover, Mr Thomas’s own clients created a collateral contract, enforceable warranty or an estoppel. As a matter of language, the relevant words in paragraph 3 of the letter dated 21 May 2004 vary the restraint of trade covenant in the Restriction of Activities annex to the offer letter but as a matter of contract law, the two provisions both form part of the original contract and must be read together. Issue 4 - What was the applicable restraint of trade covenant, what was its meaning and was it void for uncertainty?[91]The meaning and scope of the restraint of trade covenant only becomes relevant if it covers clients who are not covered by the exclusion provision of the 21 May 2004 letter but who Mr Thomas considers it is unreasonable to include in the restraint provided for by the covenant. This is because the letter excludes from the covenant “clients that I bring to Cartlidge Moreland from my current employer”.[92]It is necessary to consider who such clients are. These words give rise to a one-off exception to the CM standard employment contract and they must be construed against the matrix of facts known to both Mr Thomas and Mr Turner in May 2004 so as to give effect to the intentions of the parties. Moreover, the words “clients that I bring … from my current employer” should be construed in a business-like manner rather than giving them a strict and literal meaning.[93]The words “clients that I bring from my current employer” clearly cover any client whose name was on the list provided by Mr Thomas and attached to the contract. That list was stated to be “not full and complete” in the letter and it follows that the words also cover any other client of Mr Thomas who he brought from BFP. There are, in addition, a group of clients that Mr Thomas acquired whilst working for CM that he acquired because they are related to an existing client or were personally recommended by such a client and who were in some way connected with the person who recommended them.[94]Mr Thomas’s clients would frequently introduce their spouse or partner, their parents or children or other family members to Mr Thomas. Some of those who were introduced were old or young and not capable or able to be in charge of their financial affairs. Furthermore, some clients were so impressed with Mr Thomas and his wealth management skills that they introduced him to their own friends. Mr Thomas contends that all these additional clients fall within the rubric of “clients that I bring from my current employer”. Mr Thomas, however, initially remained unclear at the meeting announcing his resignation whether these so-called amber clients were clients who CM would permit him to take away with him.[95]Good industry practice, as shown by the evidence of Mr Thomas, Mr Turner and Mr Sandy, would expect a leaving wealth management consultant to be subject to a restraint of trade covenant but also subject to an agreement or understanding that that covenant would not be enforced against the leaving consultant’s clients. Moreover, the leaving consultant would expect to be able to have commercial negotiations with his employer or fellow partners or directors as to the identity of those clients who would not be subject to the restraint of trade covenant. The purpose of such negotiations would be to identify which clients would be covered by the agreement or understanding that the leaving consultant’s clients were to be exempted from the terms of the restraint of trade covenant in the leaving consultant’s employment contract or partnership agreement. These negotiations would result in those clients who had been introduced through the direct intervention of a family relative or a good friend who was also an existing client being treated as clients of the consultant in question and as not being covered by the restraint of trade covenant.[96]Mr Thomas and Mr Turner did not address directly, in their negotiations, what individuals would be covered by the term “your clients”, being those that they agreed would not be covered by the terms of the restraint of trade covenant. However, Mr Thomas brought with him from SFS/BFP some clients who had been introduced to him by existing clients because they were family members or personal friends and he provided CM with letters of authority from all such clients including those who had been personally introduced to him by existing clients. Moreover, after he had given CM notice, Ms McConville sent him a list of all the individuals he had dealt with and he was asked to identify those clients whom he had a personal relationship with. Mr Thomas returned the list annotated as requested and CM did not thereafter dispute any of the annotations and, by its silence, appeared to accept the accuracy of these annotations.[97]It was contended that Mr Thomas did not consider that his understanding with Mr Turner extended to clients personally introduced by existing clients. Considerable reliance was placed on what was contended to be his acceptance in his evidence that such clients were covered by the restrictive covenant in its varied form. However, Mr Thomas was being questioned about his understanding of CM’s position which he understood to be the unreasonable position that even if his clients were not covered by the terms of the restrictive covenant, those who had been introduced through such clients were still covered. The overall thrust of his evidence was that both he and Mr Turner understood that the term “your clients” extended to derivative clients.[98]It follows that, given the very personal nature of the services provided by Mr Thomas and the fact that many of his clients were married couples or families and also given the evidence summarised above, Mr Turner and Mr Thomas clearly understood, and can be objectively taken to have understood, that they were agreeing that any client brought from SFS/BFP and any client who became a client at any time thereafter as a result of family or other close personal connections with an existing client fell outside the words of the restrictive covenant. That is also how an informed and reasonable bystander would understand those words as well. In other words, the term “your clients”, when construed in its commercial context against the factual matrix surrounding the 2004 negotiations, meant those clients that Mr Thomas brought with him from SFS/BFP as well as any family members or personal contacts introduced by those clients for whom Mr Thomas started to provide consultancy services after he had arrived at CM. Mr Thomas’s evidence was that about 10% of the annotated clients on the list he sent back to CM in 2010 were family members or personal contacts of clients he brought with him to CM. These clients were known, in the jargon of wealth management consultants, as “amber clients” and the clients who came with a consultant initially were known as “green clients”.[99]It follows that all of Mr Thomas’s so-called green and amber clients fell outside the scope of the restrictive covenant in his employment contract.

Issues 5 – 8 The enforceability of the restraint of trade covenant

[100]Mr Thomas accepts and has always accepted that any client that he provided services to that he did not bring to CM falls within the ambit of the restraint of trade covenant and that the restraints imposed with reference to those clients, the so-called “red” clients, are reasonable and enforceable. He is solely concerned to establish that his clients, the so-called “green” and “amber” clients, are outside the terms of the covenant altogether. It is therefore not necessary for me to determine whether the covenant only restrains solicitation or is, instead a two-part covenant that restrains both solicitation and dealing, whether the enforceable part of the restraint of trade covenant protects any, and if so what, legitimate business interests of CM, whether its enforceable terms were no wider than is reasonably necessary to protect CM’s legitimate interests, whether any unreasonable features of the restraint of trade covenant can be treated as having been excised from the contract so that the balance of the covenant may still be enforced and whether it is reasonable for the covenant to run for a period as long as twelve months.[101]On behalf of the CM, Ms Stout submitted that I should embark on a determination of all these issues because they remained relevant in relation to those clients of CM who were not clients covered by the agreed contractual exemption and because, if CM succeeded on an appeal in overturning my findings that there was an agreed contractual exemption or that there was one whose meaning was more limited than I have determined it to be, the Court of Appeal would have to determine these issues itself without the benefit of any findings on those issues. I am, however, not prepared to embark on a determination of these issues. Firstly, it is not clear what the factual basis should be for any such determination. If the factual basis is as I have determined it to be, the issues do not arise save in relation to the so-called “red” clients. If the factual basis is some other basis, I would be determining issues that do not arise on the basis of non-existent facts that CM’s witnesses have asserted to be true even though they knew or should have known that they were false. Secondly, on the basis of my findings of fact, CM are not entitled to a permanent injunction because of its own significant breaches of contract and by virtue of its inequitable conduct in seeking and arguing for an interim injunction. Moreover, CM is not entitled to a permanent injunction because Mr Thomas has, throughout, accepted that the restraint of trade covenant prevents him from soliciting and dealing with the red clients for a period of twelve months from the date of his departure from CM who, therefore, on all these grounds, has no entitlement to an injunction. There is no need, and it would be inappropriate, for me to determine wholly moot issues on the basis of presumed and theoretical facts in relation to the green, amber or red clients. Issue 9 - Was CM’s behaviour in seeking to enforce the restraint of trade covenant, in obtaining an interim injunction or in any other relevant way inequitable and/or a breach of its agreement with Mr Thomas?[102]The interim injunction hearing took place on 25 February 2011. The application had been issued on 21 February 2011 and the witness statements served in support of the application were from Mr Cartlidge, sworn on 23 February 2011 and Mr Morland and Ms McConville both sworn on 24 February 2011. Mr Thomas’s witness statement in reply was served on the morning of the hearing.[103]The judge gave an extempore judgment having granted an interim injunction. It is clear that the judge was only just persuaded to grant the interim injunction and he was critical of Ms McConville in a number of respects. The evidence of the three CM witnesses was presented in what I have now found to be the same partisan way as their later written and oral evidence. This included the suggestion by Mr Cartlidge that the 19 May 2004 letter was never received by Ms McConville or the firm “as an actual letter” and is not evidence of an agreement even though it was received by Mr Turner and agreed to by him as an attachment that was intended to be part of the contract. The witness statement also suggested that Ms McConville never received the 21 May 2004 letter, that there was no evidence as to how the signed offer letter came to be in Mr Thomas’s personnel file and no reference to the instructions to Ms McConville to delete the “FYI” letter from the chain of emails sent to Mr Thomas. The witness statement also stated that had Mr Turner attempted to agree a variation of the restraint of trade covenant, it would have been a breach of his obligations as a partner to do so. All those statements were untrue and should never have been made unless set out as part of a much more detailed factual background and appropriately qualified.[104]It follows that the interim injunction should never have been applied for and certainly not applied for on the basis of the very partial account of the background evidence that was provided and that

the judge was justified by the facts to state in his judgment:

“I think that the proper remedy, if [CM] loses, is damages which will be substantial.”
It also follows that to apply for and obtain an interim injunction on the basis of such unbalanced and partisan evidence amounts to a serious breach by CM of its duty under the employment contract to act fairly towards Mr Thomas. It must be remembered that the serious allegations of impropriety made in the witness statements are made in documents that are not confidential and may even be reported in financial newspapers and are, or are capable of being, highly detrimental to Mr Thomas’s future career even if, as here, his reputation and integrity is subsequently completely vindicated.[105]It also follows that to apply for and obtain an interim injunction on the basis of such unbalanced and partisan evidence amounts to a serious breach by CM of its duty under the employment contract to act fairly towards Mr Thomas. It must be remembered that the serious allegations of impropriety made in the witness statements are made in documents that are not confidential and may even be reported in financial newspapers and are, or are capable of being, highly detrimental to Mr Thomas’s future career even if, as here, his reputation is subsequently completely vindicated.[106]It was contended on behalf of CM that no such breach of contract was pleaded, that there was no general implied duty in a contract of employment to act fairly or reasonably towards the employee and that if the conduct was capable of amounting to a breach of contract, such a breach did not occur in this case since it would have occurred after the contract had ended on 15 February 2011 when Mr Thomas left CM. These submissions are rejected for these reasons:(1) CM has given a cross-undertaking to compensate Mr Thomas for any loss caused by its obtaining an interim injunction that it was not entitled to. That claim has been pleaded on behalf of Mr Thomas. Part of his loss is the loss resulting from the damage to his reputation in being accused of significant lack of probity, dishonesty and criminal conduct both before the commencement of, and in the course of, these proceedings. That loss arises from breaches of contract by CM and is not extinguished by my findings in this judgment that completely vindicates him and shows him to have acted honourably and with integrity throughout. The factual basis for a determination of all these issues and the claims for both damages for breach of contract and for loss consequent upon the undertaking are all pleaded.(2) There is an implied duty of trust and confidence imposed on an employer which requires the employer to act towards his employee in a way that is not calculated to destroy or seriously damage that relationship or the reputation for probity, integrity and reliability of the employee. These propositions are well-established (see Malik v BCCI and Hira v Daly [1998] AC 20, HL and (2011) LTL 16.8.2011). ).(3) The relevant breaches were, at least in part, committed before Mr Thomas’s employment ceased and, in relation to his employment, the employer’s obligation to act fairly and reasonably and in conformity with its duty of trust and confidence survives the termination of an employee’s employment. Furthermore, the employer is entitled to seek to uphold a valid restraint of trade covenant after the employment relationship has ended and, as a corollary of that entitlement, the employer must be subject to a corollary duty to seek to uphold the covenant in a fair and reasonable manner and in ways that do not breach its duties of trust and confidence.[107]It follows that Mr Thomas is entitled to seek damages for his loss and for the damage to his reputation that he has suffered as a result of CM’s conduct in seeking injunctive relief and damages from him. CM’s behaviour towards Mr Thomas in its dealings with him after he served notice was both inequitable and a serious breach by the firm of his employment contract. Issue 10 - Did Mr Thomas commit any, and if so what, breaches of the covenant? In particular, did he solicit CM’s clients, disclose confidential information belonging to CM or fail to return any of CM’s documents to CM?[108]CM contends that Mr Thomas has solicited clients covered by the restraint of trade covenant in breach of that covenant. However, only one name was referred to, that client was one of Mr Thomas’s clients and there was no evidence that he had solicited her before, or after, the imposition of the interim injunction. The other allegations amounted to no more than speculation of unlawful solicitation. The claim for damages fails since no breach and no loss have been proved.[109]It is also contended that Mr Thomas disclosed confidential information belonging to CM to TAM. This is not a pleaded breach and CM relies on answers given by Mr Thomas in cross- examination to establish this breach. What he stated was that, in his pre-engagement discussions with TAM, he had informed them of the total value of funds under his management and had provided them with a list of all his clients including his red clients. However, the total value of his funds under management was not a piece of information taken on its own that could be said to fall within the ambit of the duty of non-disclosure and his purpose of disclosing his client list was to enable that list to be added to his new contract as providing a list of all names who might be covered by the agreed exclusion from his restraint of trade covenant, as is normal practice with such clauses. He had no intention of soliciting red clients however. These actions are not breaches of the duty of non-disclosure and, in any event, no loss has been pleaded or proved.[110]It is also further contended that Mr Thomas, in breach of CM’s established policy, put his mobile telephone number on his business card. However, no such policy was established in evidence and it was also never established that that policy had become a contractual obligation that Mr Thomas was bound to follow. Finally, no loss has been pleaded or proved, even if there was a breach.[111]Finally, it was contended that Mr Thomas had failed to return some of CM’s documents in his possession, a clear breach of the requirement to return all their documents on leaving the firm. This was a long-running complaint that generated much heat and inter-solicitor correspondence. It appeared to end when Mr Thomas’s solicitors returned to CM’s solicitors two box loads of papers numbering 4,000 pages of client information on 21 June 2011. By the close of the case, CM had not identified any of its documents still in the possession of Mr Thomas and there appears to be no on-going breach of this requirement to return papers. On behalf of CM it was submitted that Mr Thomas should return his USB stick to CM or its contents should be deleted, that he should be required to provide access to his computer to the expert to report what was stored on it and that he still had documents and emails belonging to CM in his possession which he should return. However, the evidence suggests that the USB stick only contains documents which are not covered by the delivery up requirements of his contract, that Mr Thomas does not have possession or control of any computer which has, or had, CM’s documents stored on it or that any of CM’s documents that were in his possession or which had been stored by him on any computer or USB stick are any longer in his possession or still stored on any computer that he placed them on.[112]It follows that no breaches of contract by Mr Thomas have been identified by CM. Issue 11 - Should the enforceable part of the restraint of trade covenant be enforced by injunctive relief and, if so, in what form?[113]There is no basis for imposing an injunction since Mr Thomas has always accepted that the covenant covers his so-called red clients, being those he first acquired after starting to work for CM who have no connection with any of his own clients. Further, there is no evidence that he has ever attempted to solicit any red client or that he has any intention of doing so. On those grounds, the application for an injunction fails and is dismissed. Furthermore, on behalf of CM, it was accepted at the hearing on 15 August 2011 that an injunction was no longer required. A yet further ground for not granting an injunction is that CM’s inequitable conduct, as found in this judgment, precludes them from being granted equitable relief even if the other grounds for not granting it were not present See paragraphs 103 – 106 above. .

Issue 12 - Is CM entitled to an enquiry as to damages?

[114]CM has made out no case for an award of damages to itself and, therefore, no enquiry will be ordered. Issue 13 - Should Mr Thomas’s damages for any breach of contract or pursuant to CM’s undertaking to remunerate him for loss suffered as a result of the interim injunction be quantified at a later trial or, alternatively, is Mr Thomas entitled now to any, and if so what, monetary relief?[115]Mr Thomas has succeeded and is clearly entitled to call on the cross-undertaking as to damages and, further, he is entitled to damages for CM’s breaches of the implied obligation to deal with him fairly. The breaches involved CM’s failure to give effect to the contract terms which permitted Mr Thomas to take his clients with him and to solicit them to join him in his now wealth management company and not to make false allegations against him unless reasonable care had first been taken to check the accuracy of those allegations. Those breaches are aggravated by the allegations being made in a way and in proceedings where they are likely to become public knowledge and to damage his reputation for probity and honesty, a reputation which is an essential requirement for a wealth management consultant.[116]It was contended that Mr Thomas is not entitled to recover damages for any breach of contract arising from CM having made false allegations against him or that his damages had been aggravated by the way the proceedings were conducted. These allegations, it was contended, had not been pleaded or addressed at the trial and were, in any event, not proved since CM throughout were doing no more than expressing reasonable suspicion based on reasonable grounds about the veracity of certain documents and as to the existence of an agreement reached between Mr Thomas and Mr Turner. However, the allegations were both pleaded and dealt with extensively at the trial. Indeed, the trial was concerned almost exclusively with the question of whether Mr Thomas and Mr Turner were telling the truth and had not fabricated and concocted false evidence and whether Mr Cartlidge, Mr Morland and Ms McConville were telling the truth and had neither suppressed and nor put forward false evidence.[117]Mr Thomas cannot, at present, quantify his loss and damages although he can obviously do so in the relatively near future. I will not attempt to assess his recoverable loss and damages but will direct that he quantifies these in the reasonably near future and I will then list the case for a loss and damages hearing if the sum cannot be agreed by the parties out of court. I will also consider making an interim award for both loss and damages in the meantime. Issue 14 - Are either CM or Mr Thomas entitled to an order requiring it or him to hand over any documents or confidential information in its or his possession to the opposing party and, if so, to what order?[118]There is no claim by Mr Thomas for the hand over to him of his documents and no outstanding breach by Mr Thomas of the obligation to hand over CM’s documents to CM. In those circumstances no order will be made for the hand over of documents. Issue 15 – Should the draft judgment dated 15 August 2011 should be recalled and reviewed[119]Detailed submissions were advanced on behalf of CM in seeking a recall and review of the entirety of the draft judgment on the grounds that the whole judgment was unsafe. These submissions, advanced on the express instructions of CM, were put forward for these reasons that were set out by CM’s counsel in her written submissions seeking that review:
“The court has made findings about CM’s business and the probity of its witnesses that are seriously factually flawed and potentially very damaging if published in a public judgment”
. For this reason, and because of the factual complexity of the trial that had, perforce, to be conducted at great speed following an expedited preparatory period, I acceded to the submission that I should take the exceptional course of recalling and reviewing my draft judgment in its entirety. I did so, taking account of the detailed submissions submitted by both parties as to its content and having reviewed the entirety of the written and oral evidence. Having done so, I have concluded that my original findings should stand. This has required me to add to, but not subtract or change, my draft findings so as to address the submissions that were advanced. This judgment, is the result of that review.

Issue 16 - Conclusion

[120]The conclusion is:(1) The defendant is entitled to declarations that: (i) The letter dated 21 May 2004 signed by Mr Thomas and the list of clients printed down by Mr Thomas on 22 May 2004 were both sent to CM by post at its Scunthorpe office on 22 May 2004 and were received by CM at that office soon afterwards; (ii) The letter dated 21 May 2004 and the said client list formed part of the employment contract signed by Mr Thomas and dated 21 May 2004; and(2) Those clients of Mr Thomas’s who were his clients whilst he was with his previous employer and who transferred to CM when Mr Thomas was employed by CM and those additional clients who were introduced to Mr Thomas by any such client are not covered by the restraint of trade covenant in Mr Thomas’s employment contract dated 21 May 2004. These are Mr Thomas’s “green and amber” clients.(3) The interim injunction imposed by Openshaw J on 25 February 2011 is discharged.(4) CM’s claim for injunctive relief and damages and for the return of its documents is dismissed.(5) Mr Thomas is entitled to recover the loss caused by the imposition of an interim injunction and pursuant to CM’s cross-undertaking as to damages and damages flowing from CM’s breaches of its implied duty to act fairly towards Mr Thomas in his employment contract.(6) Consequential procedural directions flowing from direction (4) and from any other order made herein shall be made by the Court.(7) The draft judgment dated 15 August should be recalled and reviewed but, having reviewed the draft judgment, the conclusions set out in paragraphs (1) – (5) above and the findings upon which they are based should stand. HH Judge Anthony Thornton QC September 2011