“5.2 You will not, whether as principal or agent, and whether alone or jointly with, or as director, manager, partner, shareholder, employee or consultant of any other person, directly or indirectly…… (a) approach, encourage, interfere with, solicit or endeavour to entice away the employment of, employ or attempt to employ or negotiate or arrange the employment or engagement by any other person, of any person who to your knowledge was, at the Termination Date or at any time during the 12 months period ending on the Termination Date ("the Relevant Period") in a managerial, investment management (i.e. portfolio manager), analyst, trading, core development or sales capacity and whose departure would damage BlueBay's legitimate business interests and with whom you had personal dealings during the Relevant Period;” (a) approach, encourage, interfere with, solicit or endeavour to entice away the employment of, employ or attempt to employ or negotiate or arrange the employment or engagement by any other person, of any person who to your knowledge was, at the Termination Date or at any time during the 12 months period ending on the Termination Date ("the Relevant Period") in a managerial, investment management (i.e. portfolio manager), analyst, trading, core development or sales capacity and whose departure would damage BlueBay's legitimate business interests and with whom you had personal dealings during the Relevant Period;”
“You must devote your full time attention and abilities to your job duties during working hours and act in the best interests of [BlueBay] at all times. You must not, without [BlueBay’s] written consent, be in any way directly or indirectly engaged or concerned in any other business where this is or is likely to be in conflict with [BlueBay’s] interests or where this may adversely affect the efficient discharge of your duties.”
“I have a settlement in place with BlueBay which means I can’t really discuss anything for now but I’ll be in touch in the new year I’m sure”
“I wanted to make sure I could say goodbye to him because I didn’t know when I’d see him next.”
“come and see me – I’m in the office”
“Next week we will have plenty to talk about”
“I’m sure we will – keep your head down”
“Damian its Fahim here. Umm I’ve just had a call from Gina and she said she’s said a bit too much about Mattias [Hojmark-Jensen] to you, and she called me up and she was in a bit of a tizz/panic about it that she’d said too much and she wanted me to have a word with you about it. Now, it turns out, as I suspected, that little weasel Mattias has already called up Gina ‘cos he’s been told by Alberto[Francioni] that you’ve left …… So he’s already called her up and asked if you’d joined her, and she had to say no comment. So it’s highly likely he will call you, say fucking nothing, just say ‘no comment’ and…… be very…circumspect, ……..and run it past me …….and at some point I’ll explain the whole context to you and why it’s all so sensitive. Bye”
“Damian, thanks for your text. Let’s do…Let’s have one rule of thumb between us: No texts. You’ve got a duty of care to BlueBay. So no text, no email, even personal. Just phone calls and phone messages. No text, no email. Alright, bye”
“when Damian resigns ..[BlueBay] will: (a) try to get a lot of detail as to where he is going; (b) keep him. We need to ensure that neither of these happen.”
“Goldbridge has also put an experienced institutional distribution team in place led by Fahim Imam-Sadeque and Damian Nixon (both formerly with BlueBay Asset Management).”
“I’m very excited to be part of the Goldbridge team. We’ve all worked extremely hard and look forward to future opportunities. I cannot comment further than that”
“… I am writing to reaffirm and repeat the terms and effect of clauses 10 and 12 of the Agreement. Accordingly I hereby confirm that… 1.1 I warrant that: (a) I have not withheld or failed to disclose any fact which is in my view a material fact concerning the performance of my duties with [BlueBay], or in my view, a breach of any material term (express or implied) of my contract of employment with [BlueBay]; (b) there are no circumstances of which I am aware or of which I ought reasonably to be aware which would amount to a repudiatory breach by me of any express or implied term of the contract of employment with [BlueBay] which would entitle (or would have entitled) [BlueBay] to terminate my employment without notice; 1.2 I acknowledge and agree that [BlueBay] has entered into the Agreement on the condition that the matters warranted by me in this clause are true. ” 1.1 I warrant that: (a) I have not withheld or failed to disclose any fact which is in my view a material fact concerning the performance of my duties with [BlueBay], or in my view, a breach of any material term (express or implied) of my contract of employment with [BlueBay]; (b) there are no circumstances of which I am aware or of which I ought reasonably to be aware which would amount to a repudiatory breach by me of any express or implied term of the contract of employment with [BlueBay] which would entitle (or would have entitled) [BlueBay] to terminate my employment without notice; 1.2 I acknowledge and agree that [BlueBay] has entered into the Agreement on the condition that the matters warranted by me in this clause are true. ”
“...So far as concerns repudiatory conduct, the legal test is simply stated, or, as Lord Wilberforce put it, ‘perspicuous’. It is whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”
“41. As Elias J pointed out in Fishel the hallmark of a fiduciary is a single-minded duty of loyalty. The duty of loyalty in that context has a precise meaning: “namely the duty to act in the interests of another”
“An employee owes an obligation of loyalty to his employer but he will not necessarily owe that exclusive obligation of loyalty, to act in his employer's interest and not in his own, which is the hallmark of any fiduciary duty owed by an employee to his employer. The distinguishing mark of the obligation of a fiduciary, in the context of employment, is not merely that the employee owes a duty of loyalty but of single-minded or exclusive loyalty.” 43. Helmet Integrated Systems Ltd v Tunnard also shows that the obligation of loyalty is no more than an obligation loyally to carry out the job that the employee agreed to do. This, too, is the result of Fishel. ...” “An employee owes an obligation of loyalty to his employer but he will not necessarily owe that exclusive obligation of loyalty, to act in his employer's interest and not in his own, which is the hallmark of any fiduciary duty owed by an employee to his employer. The distinguishing mark of the obligation of a fiduciary, in the context of employment, is not merely that the employee owes a duty of loyalty but of single-minded or exclusive loyalty.”
"26. ... An employee must act with good faith towards his employer (see e.g. Robb v Green[1895] 2 QB 315 at 317). An employee must receive and obey the instructions of his employer, and devote his time and talents to his employer's business. But whilst he must not compete with his employer during the course of his employment, the duty of fidelity imposes no inhibition on his competing against his former employer once he has left. He is entitled to take the skill he has acquired and developed during the course of his employment and apply it for his own benefit once he has left, even if that involves competing against his former employer. He may also take with him and use knowledge and information which he has acquired, provided he does not use or disclose information properly described as a trade secret (see e.g. Faccenda Chicken Ltd v Fowler[1987] Ch 117 at 136). 27. This freedom to compete, once an employee has left, unrestrained by any enforceable covenant, carries with it a freedom to prepare for future activities, which the employee plans to undertake, once he has left. In Robb v Green (q.v. supra) Hawkins J concluded that a manager who had copied a list of customers was liable in damages for breach of an implied term not to use such information to the detriment of his employer. But he observed, in words echoed frequently thereafter, that each case would depend upon its own circumstances and there will be cases where an employee may legitimately canvass, issue circulars, have a place of business ready and hire employees (see page 15). The Court of Appeal made no observation suggesting disagreement when it affirmed Hawkins J's conclusion. The Legitimacy of Preparatory Activity 28. The battle between employer and former employee, who has entered into competition with his former employer, is often concerned with where the line is to be drawn between legitimate preparation for future competition and competitive activity undertaken before the employee has left. This case has proved no exception. But in deciding on which side of the line Mr Tunnard's activities fall, it is important not to be beguiled into thinking that the mere fact that activities are preparatory to future competition will conclude the issue in a former employee's favour. The authorities establish that no such clear line can be drawn between that which is legitimate and that which breaches an employee's obligations."
“[BlueBay] may at its discretion require you not to work during your notice period. In such circumstances you will remain bound by the terms of this contract of employment during the period of notice.”
“Take, for example, a man who goes for a job interview and accepts an offer of employment on being told confidential details of the prospective employer's business plan. He then returns to his current employer, intending to hand his notice in, but is persuaded not to move, whereupon he divulges the confidential details of the now rejected employer's business plan to his present and future employer, a competitor. In those circumstances, it seems to me that he would be in breach of an obligation of trust and confidence vis-à-vis the rejected employer.”
“...whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred. ...”
“I have also found valuable Colman J’s further observations in Lordsvale…. which indicate that a dichotomy between a genuine pre-estimate of damages and a penalty does not necessarily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable.”
"Except possibly in the case of situations where one of the parties to the contract is able to dominate the other as to the choice of the terms of a contract, it will normally be insufficient to establish that a provision is objectionably penal to identify situations where the application of the provision could result in a larger sum being recovered by the injured party than his actual loss. Even in such situations so long as the sum payable in the event of non-compliance with the contract is not extravagant, having regard to the range of losses that it could reasonably be anticipated it would have to cover at the time the contract was made, it can still be a genuine pre-estimate of the loss that would be suffered and so a perfectly valid liquidated damages provision"
“There is a presumption (but no more) that it is a penalty when “a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage” (Lord Watson in Lord Elphinstone v Monkland Iron & Coal Co 11 App Cas 332).”
“Because the rule about penalties is an anomaly within the law of contract, the courts are predisposed, where possible, to uphold contractual terms which fix the level of damages for breach. This predisposition is even stronger in the case of commercial contracts freely entered into between parties of comparable bargaining power.”
“Forfeiture of accrued benefits. Parallel to the court’s power to relieve against forfeiture of property and analogous rights, referred to below, there is some authority that the law of penalties may affect a clause if its effect is to cancel a party’s accrued claim to a particular benefit under it in the event of breach. Notably, in the insurance case of The Fanti it was held in the Court of Appeal that this applied to a clause in a policy whose effect was retrospectively to withdraw accrued rights to claim in the event of failure by the assured to pay later premiums. But to give rise to this rule, the benefits must have accrued: the withdrawal of the right to payment where performance is not complete is not penal.”
“Here the relevant fees were not fully earned. Integral’s right to receive them was dependent upon fulfilling its responsibilities under the contract because it only accrued when it was earned. The right to receive them was conditioned, in part, on the management obligations under the contract. The determination of the contract put an end to that entitlement...There was no relevant forfeiture of fully earned property to engage the law of penalties, assuming that forfeiture of rights (as opposed to payment of money) could so engage that law.”
“It [the penalty rule] has been held to apply …… (see Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd[1993] AC 573 ) to a clause which requires a contract breaker to forfeit a deposit or sum of money due or to become due to the other party in the event of breach.”
“If this seems a somewhat formal distinction I would answer that the penalty doctrine, being an inroad upon freedom of contract which is inflexible compared with the equitable rules of relief against forfeiture, ought not to be extended.”