Team Tours Direct Ltd v Aspire Sports Tours Ltd & Anor [2018] EWHC 1541 (QB)

[2018] EWHC 1541 (QB)Case No D40CF007IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS IN WALESCIRCUIT COMMERCIAL COURTVenue Cardiff Civil Justice Centre,, 2 Park Street, Cardiff, CF10 1ETDate 19 June 2018
Before
HIS HONOUR JUDGE KEYSER Q.C.sitting as a Judge of the High Court
Between
TEAM TOURS DIRECT LIMITEDClaimant(1) ASPIRE SPORTS TOURS LIMITEDDefendants(2) ROBIN SHARPEDefendant
Andrew Butler Q.C.(instructed by Acuity Legal) for ClaimantRobin Sharpe (the Second Defendant) on his own behalf and for First DefendantHearing Hearing dates: 29, 30, 31 May 2018
Judgment ApprovedH.H. Judge Keyser Q.C. :Introduction
[1]The claimant, Team Tours Direct Limited (“TTD”), carries on the business of the provision of sports tours and holidays. It was incorporated in 2004 to carry on a business that its chairman, Mr Terence O’Neill (“Mr O’Neill”), had been carrying on as a sole trader since 1996.[2]In February 2014 the second defendant, Mr Robin Sharpe (“Mr Sharpe”), commenced employment for TTD as a sales executive. His son, Mr Ryan Sharpe, commenced employment with TTD as a sales representative at about the same time. In April 2014 Mr Sharpe became the claimant’s operations manager. At the end of 2014 Ryan Sharpe left TTD’s employment. During 2015 the relationship between Mr Sharpe and Mr O’Neill deteriorated. On 26 January 2016 Mr Sharpe was suspended from his duties while a disciplinary investigation was carried out. On 1 March 2016 he was summarily dismissed from his employment.[3]On 1 February 2016 the first defendant, Aspire Sports Tours Limited (“AST”) was incorporated; the application for incorporation was filed on 29 January 2016, three days after Mr Sharpe was suspended. The issued shares in AST were held equally by Mr Sharpe and Ryan Sharpe, and Ryan Sharpe was the sole director. Subsequently Mr Sharpe was appointed as a director on 4 April 2016. Ryan Sharpe resigned as a director of AST on 24 March 2017 and at about the same time transferred his shares to Mr Sharpe. Since the mid part of 2016 AST has carried on a business in competition with that of TTD.[4]In these proceedings, TTD alleges that AST has carried on its business with the use of information that is confidential to TTD and has breached its copyright in promotional material, and it alleges that Mr Sharpe has acted in breach of the obligations of his contract of employment, both before and after its termination. In respect of these matters it seeks an award of damages. It also claims an injunction, although no application was made for an interim injunction and at this late stage the claim for a final injunction has not been pursued with vigour.[5]AST and Mr Sharpe dispute the claims against them on various grounds, as I shall explain. Mr Sharpe also alleges that his summary dismissal was wrongful and in breach of contract, and he counterclaims damages in respect of the pay which he says he ought to have received during the period of notice to which he was entitled.[6]In the circumstances as summarised shortly above, a number of issues fall to be determined. I shall set them out and consider them in turn. This judgment will not contain a detailed narrative of the facts or a recital of large parts of the evidence, though for convenience I shall set out an account of the events surrounding the termination of Mr Sharpe’s employment. For the avoidance of doubt, however, I make it clear that in considering any one issue I have borne in mind the totality of the evidence that has been adduced before me.[7]I shall also summarise in very broad terms my view of the principal witness evidence, which involves anticipating some of the findings set out later in this judgment. Mr Sharpe and his son, Ryan Sharpe, are two of a kind, in that both of them suffer from the weakness of trying to be clever and end up being too clever by half, as Mr Butler Q.C. for TTD put it to one of them. In the course of their evidence they made admissions only to the extent that was unavoidable in the light of compelling proof; in Ryan Sharpe’s case, not even then. Despite their denials, it is obvious that they attempted deliberately to set up a rival business with the use of all such advantages in terms of TTD’s contacts, databases, files and promotional material as available to them. However, my assessment of the evidence for TTD is not altogether favourable. In particular, I have come to the view that, having correctly assessed what Mr Sharpe was up to, and being both concerned and annoyed at being faced with illegitimate competition, Mr O’Neill chose to advance a claim for damages that went well beyond the bounds of what could properly be advanced. In his closing submissions, Mr Sharpe complained that TTD’s conduct of these proceedings had been designed for the purpose of driving a competitor out of business. In my judgment, that is indeed the case.

Events concerning dismissal

[8]In November 2015 Mr O’Neill gave Mr Sharpe and his assistant, Mr Johnathan Hopkins, an oral warning for making a bulk reservation of hotel accommodation without first obtaining comparative quotations with a view to finding accommodation at a lower price.[9]In January 2016 Mr Sharpe advised Mr O’Neill that TTD was over-committed for accommodation for a rugby event in the UK and should attempt to mitigate its potential liability by selling five hundred beds cheaply. On 24 January Mr O’Neill responded that his own examination of the figures showed that the accommodation was in fact almost sold out; Mr Sharpe had failed to take account of under-occupancy, which is where customers book hotel rooms for occupation by fewer people than there are available beds and pay a supplement accordingly (e.g. a single person’s supplement in a double room). Mr Sharpe replied on 25 January with an exculpatory email. The reply did not find favour with Mr O’Neill: “This is the biggest lot of nonsense I have read in a long time” (email to Mr Sharpe on 25 January). Mr O’Neill’s view was that, instead of owning up to a mistake, Mr Sharpe was seeking to get out of difficulty by misleading him with false explanations. The details of the email exchanges are of no relevance to this case. But by the evening of 25 January Mr Sharpe was telling Mr O’Neill that he would not be “bullied” into retracting his explanations.[10]That was the final straw for Mr O’Neill. Very early on the morning of 26 January he sent to Mr Sharpe a very long email. It said that he would not accept the “disgusting” accusation that he was a bully and unwilling to seek to resolve matters without casting blame; it reiterated his views regarding the calculations of under-occupancy of hotel accommodation; and it stated that Mr O’Neill had no option but to suspend Mr Sharpe on full pay while a “full investigation into [his] conduct and accusations” was carried out. The email concluded:
“Please do not access any of your emails or pipedrive as of immediate effect or any other work related documents or information be it on line or manually until a full investigation into your conduct and accusations are complete, furthermore please do not come to the office at any time during office hours or out of office hours. I want to remind you of the fact that as a company we are able to trace all access to any company emails, pipedrive or indeed any on line access to company data or any attempts to down load any documents, in addition access reports to the office can be obtained should we require them.”
[11]At 7.57 a.m. UK time on 26 January (Mr O’Neill was in Kenya), Mr Sharpe replied by an email that ended:
“With regard to your request not attending the office during my suspension I will inform you that I have personal possessions within the office which I will need during this period, I am giving you notice that I will be attending the office at 8.30 this morning to remove the items, of course should you wish for another member of staff to be there during this time I am more than happy.”
[12]At 9 a.m. UK time that day Mr O’Neill replied:
“[T]he fact that you have advised you have entered TTD offices with just thirty three minutes notice and unattended without another member of staff present having been given direct instructions not to go into TTD offices further indicates your unacceptable actions and out of control conduct. I will be investigating your entry of TTD offices and taking advise (sic) on this matter relating to my next course of action.”
[13]Mr Sharpe had indeed attended at TTD’s offices at about 8.30 a.m. on 26 January, as he had said he would. In cross-examination he accepted that his conduct in attending in direct contravention of an instruction was not as conciliatory as it might have been, though he complained that Mr O’Neill had not given him any opportunity to attend under supervision and insisted that he had removed only personal possessions of which he had need. When he attended at TTD’s offices, only one other member of staff was present, Mr Bradley Coles-Perkins. Unbeknown to Mr Coles-Perkins, Mr Sharpe recorded their conversation on his mobile telephone. The transcript shows that Mr Sharpe made a point of stating that he was taking only items belonging to him and of showing Mr Coles-Perkins what he was taking. Mr Sharpe relies on this to confirm his own evidence. For TTD, Mr Butler says that the recording proves nothing regarding what was taken but, on the contrary, raises the suspicion that Mr Sharpe was removing something that he knew he ought not to remove and was setting up a defence in advance.[14]On the afternoon of 26 January 2016, Mr O’Neill sent to Mr Sharpe by email a letter that, among other things, required the return of Mr Sharpe’s company laptop, mobile telephone and car by 5 p.m. the following day. At 8.32 a.m. on 27 January Mr Sharpe responded that the items would be available for collection at his home address that afternoon. (The items were duly collected, except for the company car, which Mr Sharpe refused for some time to deliver up.)[15]The evidence in the case includes a report by Mr Chris Taylor, a digital forensics analyst at Disklabs Limited, a company specialising in digital forensics, data recovery and data erasure. One of the findings set out in the report and not challenged before me was that the password on Mr Sharpe’s company laptop was reset at 9.33 a.m. on 27 January 2016, one hour after Mr Sharpe confirmed that the laptop would be available for collection that afternoon. I accept also that when the mobile telephone was returned to TTD it was locked with a personal password and could not be accessed by TTD. On 16 February TTD asked Mr Sharpe for the passwords for the laptop and the mobile telephone and he provided them promptly. I shall refer later to other evidence concerning what was found upon examination of the laptop and mobile telephone.[16]As mentioned above, on 29 January the application for registration of AST was filed with the Registrar of Companies, and AST was duly incorporated on 1 February 2016.[17]The disciplinary hearing was conducted on 1 March 2016. Those present were Mr Sharpe, Mr O’Neill and Mr Alex O’Neill, a director of TTD and Mr O’Neill’s son. The framework for the meeting was provided by a document entitled “Confidential Investigatory Report”, which had been written by Alex O’Neill and provided before the meeting to Mr Sharpe. Various things in the Report may be mentioned here. First, it stated that Mr Sharpe’s attendance at TTD’s premises on 26 January, in contravention of Mr O’Neill’s instruction, was evidence of “gross insubordination”. In that regard, it mentioned that confidential documents, including Mr Sharpe’s written contract of employment, had gone missing from the premises; though it stopped short of accusing Mr Sharpe of taking them, the clear implication was that he might have done. Second, the Report said that, when the laptop and mobile telephone were returned, they were found to be locked with personal passwords, in contravention of a company policy that designated passwords be used. Third, it said that the laptop and the mobile telephone were subsequently found to have had confidential company data deleted from them; this was said to raise a question whether the relationship of mutual trust and confidence between Mr Sharpe and TTD had been irretrievably damaged. Fourth, it was said that Mr Sharpe’s conduct concerning spare accommodation (see above) was “unacceptable” and that the responses he provided to Mr O’Neill had shown a “deliberate intention to cover up” his mistake and amounted to “serious misconduct”. Fifth, the Report said that a new matter had come to light concerning bookings of accommodation with a major hotel chain in Dubai and Mr Sharpe’s failure to authorise the hotel chain to release unwanted accommodation; this was said to have threatened TTD’s relationship with the hotel chain and to constitute gross misconduct.[18]The disciplinary meeting itself lasted some two hours. The transcript is almost unreadable; this is partly due to the poor quality of the transcription, but it is mainly the result of Mr Sharpe’s exceptionally confrontational, argumentative and rude approach to the meeting, which he displayed within the first few minutes and kept up unabated for the remainder of the meeting. The matters discussed in the meeting largely followed the order in which matters were set out in the Confidential Investigatory Report. It is unnecessary to refer to all of the matters that were discussed. The discussion concerning the laptop and mobile telephone was important, however. Mr Sharpe denied that there had been anything wrong in using his own passwords to protect the devices or that TTD had any contrary policy. Mr O’Neill appeared to accept that it was reasonable to use a private password on the mobile telephone, but he said that it was unhelpful to deliver it up with such a password on it. I accept and agree with that evidence. As for the laptop, Mr O’Neill’s position in the meeting was essentially the same as his evidence at trial, namely that company laptops were protected by designated passwords so that they could be accessed by others in the company. I accept that evidence. Mr Sharpe’s actions in placing a password on the laptop on 27 January was both contrary to what he knew to be company policy and deliberately provocative and unhelpful.[19]More importantly, Mr O’Neill stated that, when the devices had been examined, it had been found that Mr Sharpe had “wiped substantial data, videos, emails—substantial amounts of stuff”, both from the laptop and from the telephone, which had been returned to factory settings, and he asked Mr Sharpe why he had deleted the data. The tenor of Mr Sharpe’s answer, set out at various points of the transcript, was to demand that Mr O’Neill give him a list, first, of everything that had been deleted and, second, of everything that was not stored on TTD’s iCloud account. Mr O’Neill’s response was that the data were not backed up on iCloud and that he could not know what had been deleted without commissioning a forensic report. The flavour of the exchange appears from this extract from the transcript, just before the hour mark:
“Mr O’Neill: … I’m asking you the question, why did you delete data, why? What was the reason before handing it [the mobile telephone] in you deleted all your videos, your data, why? Mr Sharpe: I’m asking what I deleted. You can’t tell me. Mr O’Neill: Let’s go on record. Are you stating you didn’t delete anything? Mr Sharpe: What I will say to you: I’ve asked you to show me what I deleted. Mr O’Neill: We will try and find out what’s been deleted. Mr Sharpe: At that stage I’ll answer your question, because at this present moment in time you cannot categorically prove that I’ve deleted those and quite simply information that was ever on my phone has been backed up by Bradley [Coles-Perkins] to a dropbox.”
A few minutes later, Mr Sharpe stated:
“I have neither confirmed nor denied that anything has been deleted.”

Mr O’Neill: Let’s go on record. Are you stating you didn’t delete anything?

[20]Among the matters established by the Disklabs report are the following.(1) There was what Mr Taylor, whose evidence was not challenged, calls “a vast amount of evidence” to show that files belonging to TTD had been accessed not only from the laptop but from an external hard drive called the Seagate Expansion Drive. For example, on 26 January 2016 three folders, named respectively “BWFC Cup”, “Gloria” and “Mardan Place”, were accessed on the laptop and then at around 2.40 p.m., within a few seconds of each other, three files of the same name were created on the Seagate Expansion Drive. Mr Taylor opines, and I accept, that this shows that the files were copied or transferred to the Seagate Expansion Drive.(2) A distinct user identity had been added to the laptop, with the user name “Ryan”. (The natural inference, which I draw, was that Ryan Sharpe was the account user.) Both the user account “Ryan” and the files on that account were deleted on 26 January at 11.22 p.m.(3) At about 9.40 a.m. on 27 January Mr Sharpe ran two applications on the laptop. One of these had the potential to overwrite deleted data, and the other was designed for use in deleting unnecessary files. One hour later Mr Sharpe visited the “clear browsing data” section in the Google Chrome web browser, which had the potential to remove internet browsing data from the laptop.[21]In oral evidence Mr Sharpe acknowledged that he had downloaded files and folders onto an external drive. He said that he had done so at random, with no regard to the particular documents and no intention of using them, because he was “frustrated”. I do not accept that explanation, which is simply implausible. It is far more likely that he consciously chose documents that he thought would be useful to him. Mr Sharpe also accepted that he had run clean-up procedures on the laptop, though he said that this was simply in order to deliver up the laptop in proper condition. I reject that explanation: it was a clear attempt to cover his tracks by deleting any trace of illicit activity on the laptop. Initially in cross-examination Mr Sharpe denied that he had deleted anything from his mobile telephone. However, when he was referred to a passage in the transcript of the disciplinary hearing he acknowledged that it recorded his admission to having deleted material from his telephone, and I did not understand his subsequent evidence to resile from that admission. Anyway, I am satisfied on the evidence of Alex O’Neill that Mr Sharpe returned his telephone to factory settings and thereby deleted information stored upon it.[22]I mention in passing that the disciplinary meeting also contained discussion concerning the alleged disappearance of Mr Sharpe’s contract of employment. I shall deal with that below.[23]At the end of the meeting, having taken time to confer with Alex O’Neill, Mr O’Neill informed Mr Sharpe that his actions had destroyed the relationship of mutual trust and confidence and amounted to gross misconduct and that he was being dismissed with immediate effect. Mr Sharpe initiated the appeal procedure in respect of his dismissal but eventually withdrew the appeal.[24]It is convenient to dispose at this point of one of the issues in the case. In his Amended Defence and Counterclaim, which was drafted by counsel, Mr Sharpe contends that he was not liable to summary dismissal but was entitled to notice of termination of his employment. That contention is relevant to two matters: first, it is the basis of his counterclaim for damages; second, it grounds an argument that, as the contract of employment has been discharged by TTD’s repudiatory breach of contract in purporting summarily to dismiss him, Mr Sharpe is not bound by any post-termination restraints on his conduct contained in the contract.[25]In the event, Mr Sharpe was wise not to press this contention strongly at trial. It was manifestly incapable of being advanced seriously. Mr Sharpe’s behaviour amounted to gross misconduct, justifying his summary dismissal, in several respects: first, his attendance at TTD’s premises on the morning of 26 January 2016 in direct contravention of a lawful instruction by Mr O’Neill; second, his provocative placing of a private password on his laptop in breach of company policy and in circumstances where it was clearly intended to be deliberately unhelpful to TTD’s investigation; third, his deletion and copying of data from the laptop and restoration of the telephone to factory settings; fourth, his quite extraordinary behaviour in the course of the meeting itself, which was rude and obstructive and appeared designed to ensure that he could no longer work for TTD. It is unnecessary to consider whether the matters of complaint concerning hotel accommodation were themselves acts of gross misconduct.[26]The first result of this finding is that the counterclaim will be dismissed. The second result is that, if Mr Sharpe’s contract of employment contains valid post-termination restraints on his conduct, TTD will not be prevented from relying on those restraints by reason of having itself repudiated the contract. It is to the contractual issues that I turn next.

Was there a written contract of employment?

[27]A central issue in the case is whether or not Mr Sharpe had a written contract of employment. TTD say that he did. He says that he did not.[28]TTD’s case, as it appears in the evidence of Mr O’Neill and Alex O’Neill, is as follows. In 2014 it updated its written employment contracts and that Mr Sharpe, who had been involved in the process of revision of the contracts, signed his own on 19 November 2014 in the presence of Alex O’Neill, who signed it on behalf of TTD. One copy of the contract was given to Mr Sharpe and the other was retained by TTD. After Mr Sharpe’s suspension, it was found that the company’s copy of Mr Sharpe’s contract had gone missing.[29]Mr Sharpe’s case is as follows. In 2014 new written contracts were introduced for some but not all staff. (Ryan Sharpe said that only sales staff received new contracts, but his father’s evidence did not mention a restriction to sales staff.) Mr Sharpe worked with Alex O’Neill in the preparation of the new contracts and liaised with the company’s solicitor over points of drafting. He did not sign and was not asked to sign a contract. Therefore, although Alex O’Neill witnessed various employees’ contracts on behalf of TTD, he did not witness Mr Sharpe’s.[30]Resolution of this issue turns on assessment of the witnesses and weighing of various points of evidence. No single consideration is determinative and there are indications in favour of each side’s case.[31]Factors that tend to support Mr Sharpe’s case include the following. First, I am regrettably unable to proceed on the assumption that the evidence of Mr O’Neill and Alex O’Neill on this matter is honestly given. The evidence concerning losses leads me to the view that Mr O’Neill would not be above advancing a false case on this matter. And it is quite possible that other witnesses, including Alex O’Neill, would toe Mr O’Neill’s line. Second, although TTD has produced a master copy of the standard-form contract in use for its employees, with spaces for completion of the employees’ details, it has not produced a print-out of Mr Sharpe’s contract. One might have thought that the document would be completed on the computer before being printed off for signature; in that case, the document in Mr Sharpe’s name ought to exist on TTD’s computers. However, this point was not explored in evidence, and in the circumstances it is difficult to place much weight on it. Third, there was some inconsistency in TTD’s case as to the whereabouts of Mr Sharpe’s contract when it disappeared: in cross-examination, Alex O’Neill initially said that the contract was in a draw in his desk, where only he and Mr O’Neill and Mr Sharpe knew it was kept; however, as was pointed out to him, in the disciplinary meeting Mr O’Neill said that the contract and four or five other contracts were on his desk because he was working on contracts for two members of staff. Fourth, it is not clear why Mr O’Neill should have needed to have hard copies of the contracts of other members of staff on his desk for that purpose, when the contracts were in a standard form that was held on the company’s computer.[32]However, I have come to the conclusion that TTD’s case on this issue is to be accepted. First, although the points in favour of Mr Sharpe’s case are suggestive, they are far from conclusive. Second, as it is clear that new contracts were being introduced in late 2014, it is hard to see any good reason why Mr Sharpe should have been excluded from the process. Third, despite the note of caution sounded above, I am not persuaded that Mr O’Neill or Alex O’Neill was lying on this issue. It is significant that they raised the matter of the disappearance of the contract at the disciplinary meeting, before Mr Sharpe or AST was in competition with TTD. Fourth, Mr Sharpe’s response in this regard at the disciplinary hearing was significant: he did not deny the existence of a contract but disputed the implication that he had removed it from Mr O’Neill’s desk. The following extract from the transcript (which I have interpreted to give what I take to be the sense of mangled parts) shows the point:
“Mr O’Neill: Your employment contract is missing. Your signed employment contract is missing, and there’s also a confidential statement that I left in the office relating to my own personal bank account showing the assets of my private home. Mr Sharpe: Surely, Mr O’Neill, you wouldn’t leave a contract of an operations manager lying on your desk for all and sundry to see. Surely to God you wouldn’t do that. You’ve operated as a director for many years and I’m sure you’re quite aware of HR rules. You certainly wouldn’t leave a document like that lying on your desk. It brings into question whether or not that document was even there. Mr O’Neill: … The contract was on the desk with around four, five other contracts on the desk, because another member of staff was having his contract updated and another member of staff was having a new contract written out for him. So the fact that they were on the desk in an enclosed folder, were there because I was working on contracts at that time. They weren’t there for everybody to see, and I think I have every right to leave them in an enclosed folder on my desk to the side if I feel that’s where I want to put them. I didn’t have any worry about documents going missing, and I hope that they’re found. Mr Sharpe: Absolutely! I’m glad to hear that you’re saying that. But in your first comment to me, you didn’t say they were on the desk in an envelope. … You didn’t state, neither have you stated in this evidence that you have supplied to me, that they were sitting on your desk in an envelope or a brown folder or anything else. You had not stated that. What you’re doing is casting aspersions that I’ve come in and taken a contract. And quite rightly I’m saying to you, you won’t leave that closed contracts on the desk. You wouldn’t leave them in an envelope. You wouldn’t leave them available. The contracts are in Alex’s office.”
I have considered the possibility that this is just another example of Mr Sharpe trying to be clever by seeking to attack the case put to him without engaging with the real issue. But it seems to me that it is very strongly probable that, if there were no such thing as his written contract of employment, he would have said so. His answers appear to be, and I think that they are, tantamount to an admission that he had such a contract, coupled with a denial that he had taken it. Fifth, AST’s website became operational on 1 September 2016, which coincides with the expiry of post-termination restraints in the contract of employment; see below. By itself this is very far from conclusive, but when taken with other matters it does suggest that Mr Sharpe knew and had in mind the limits on his ability to be involved in competition with TTD’s business.[33]Accordingly I find that Mr Sharpe had a written contract of employment on the terms of the standard form of contract implemented by TTD in 2014. I turn to consider the provisions and effect of that contract.

The contract terms

[34]For the purposes of this case, the relevant provisions of the contract are clause 23.1 (confidentiality), clause 24 (restrictive covenant), and clause 29 (property to be returned on termination).[35]Clause 23.1 provided as follows:
“23.1 The Employee must not during his or her employment with the Employer (unless in the proper performance of his or her duties) or after its termination (unless expressly authorised by the Employer, or as required by law) disclose to any unauthorised person or use any confidential information or trade secrets relating to the business or affairs of the Employer or in respect of which the Employer may be bound by a duty of confidentiality to a third party. The Employee should use their best endeavours to prevent the publication of such information. Such confidential information shall include without limitation: 23.1.1 past and present business contacts, lists of customers and suppliers and details of contracts dealings and practices with each of them in relation to the business of the Employer. 23.1.2 identities of potential customers with whom the employer is negotiating. 23.1.3 details of the importing or purchasing practices of the Employer. 23.1.4 expenditure levels and buying and pricing policies. 23.1.5 management accounts, trading statements, statistical information and other financial reports and budgets. 23.1.6 corporate and marketing strategy, business development and plans, sales reports and research results. 23.1.7 any documents marked ‘confidential’. 23.1.8 details of the Employer’s employees and officers.”
[36]The operative parts of clause 24 were, so far as relevant, as follows (with mistakes of formatting corrected as necessary; this explains the irregular numbering):
“24.1 The Employee shall not at any time during the course of their employment with the Employer undertake, carry on or be employed, engaged or interested in any capacity in any business which is in competition with or similar to the relevant business within the territory or any business an objective or anticipated result of which is to compete with the relevant business within the territory.” “24.2 The Employee shall not at any time during the period of 6 months from the date of termination of their employment directly or indirectly do or attempt to do any of the following: 24.2.1 Entice, induce or encourage a Customer to transfer or remove custom from the Employer … 24.2.3 Solicit or accept business from a Customer for the supply of Relevant Services; 24.2.4 Solicit or accept business from a Supplier of … the Employer … for the supply of Relevant Services or interfere or seek to interfere with the supply of Relevant Services by a Supplier to the Employer …” “24.4 Each sub-clause and part of sub-clause constitutes an entirely separate and independent restriction and does not operate to limit any other obligation owed by the Employee, whether that obligation is express or implied by law. If any restriction is held to be invalid or enforceable by a Court of competent jurisdiction it is intended and understood by the parties that such invalidity or enforceability will not affect the remaining restrictions.”
[37]Clause 24.3 contained definitions for the purposes of clause 24. “The Relevant Period” was defined as “the 6 months prior to the termination of the Employee’s employment.” (That is the period 1 September 2015 to 1 March 2016.) “The Territory” was defined as “the area within a 5 mile radius of the premises in which the employee worked or been (sic) located during the Relevant Period.” (Those premises were TTD’s offices in Swansea.) “Relevant Business” was defined, in a somewhat garbled provision, to mean the business of TTD in which the Employee had been involved at any time during the Relevant Period. “Relevant Services” was defined to cover services such as TTD was providing or receiving, or seeking to provide or receive, during the Relevant Period. The definitions of “Customer” and “Supplier” were contained in clause24.3.1 and clause24.3.2 respectively. Unfortunately the definitions are convoluted and the logical structure of the definitions has defeated the grammatical capacities of the draftsman. It is impossible to correct the definitions without wholesale re-writing. Their meaning can, I think, be set out as follows:(1) A person was a Customer if he satisfied two conditions, each of which could be satisfied in either of two ways. The first condition was that there existed a sufficiently close connection between the person and TTD. The first way of satisfying the first condition was that during the Relevant Period the person was a customer of TTD for the purposes of a Relevant Business (whether or not TTD actually provided goods or services to the person during that period). The second way of satisfying the first condition was that the person was someone to whom at the expiry of Relevant Period TTD was actively and directly seeking to supply goods or services for the purposes of a Relevant Business. The second condition was that there existed a sufficiently close connection between the person and the employee (i.e. Mr Sharpe). The first way of satisfying the second condition was that either Mr Sharpe or someone reporting directly to him had had dealings with the person at any time during the Relevant Period. The second way of satisfying the second condition was that either Mr Sharpe or someone reporting directly to him was in possession of confidential information about the person relating to the person’s relationship with TTD.(2) The structure of the definition of “Supplier” was similar. A person was a Supplier if he satisfied two conditions; again, each condition could be satisfied in either of two ways. The first condition was that there existed a sufficiently close connection between the person and TTD. The first way of satisfying the first condition was that at the end of the Relevant Period the person “was supplying” (which I take to mean “was in the habit of supplying” or “was wont to supply” or some such thing) goods or services to TTD for the purposes of a Relevant Business. The second way of satisfying the first condition was that at the expiry of Relevant Period the person had agreed to make, or was actively and directly negotiating to make, supplies of goods or services to TTD for the purposes of a Relevant Business. The second condition was that there existed a sufficiently close connection between the person and the employee (i.e. Mr Sharpe). The first way of satisfying the second condition was that Mr Sharpe had had dealings with the person at any time during the Relevant Period. The second way of satisfying the second condition was that Mr Sharpe was in possession of confidential information about the person relating to the person’s relationship with TTD.[38]Finally, TTD relies on clause 29 of the contract:
“29.1 Upon termination of the Employee’s employment …, for whatever reason, the Employee shall promptly deliver up to the Employer all property and any other property which may have been prepared by the Employee or has come into the Employee’s possession in the course of their employment with the Employer and the Employee shall not retain any copies thereof. Title and copyright therein shall vest in the Employer. Such property shall include without limitation any confidential information, correspondence, documents equipment computer discs and models of products and irretrievably delete any information related to the business of the Employer stored on any magnetic or optical disk or memory and which is in the Employee’s possession or under his or her control outside the Employer’s premises.”
[39]In submissions before me, though not in his Amended Defence, which had been drafted by counsel, Mr Sharpe contended that the clauses relied on by TTD were excessively wide, going far beyond what was necessary to protect TTD’s legitimate interests, and amounted to an unenforceable restraint of trade. In support of that contention he relied on the decision of His Honour Judge McKenna in Bartholomews Agri Food Limited v Thornton [2016] EWHC 648 (QB), where certain wide-ranging covenants in restraint of trade were found to be far wider than was reasonably necessary for the protection of the employer’s business interests.[40]I reject Mr Sharpe’s submissions on this point. I do not think it right to refuse to consider the point because it has not been pleaded. However, it seems to me that counsel who drafted the original Defence and the Amended Defence were right not to raise the issue. The decision in the Bartholomews Agri Food case is of no assistance, being concerned as it was with different factual circumstances and different contractual provisions. Apart from reciting a formulaic objection to the clauses relied on by TTD, Mr Sharpe was unable in submissions to identify any particular respect in which the clauses were objectionable.[41]The applicable principles may, for convenience, be taken from the judgment of His Honour Judge Curran Q.C. in Pickwell v Pro Cam CP Limited [2016] EWHC 1304 (QB), where he summarised them at [65]:
“(1) The court must determine what the covenant means, properly construed. (2) The court must then consider whether the former employer has shown on the evidence that it has legitimate interests requiring protection in relation to the employer’s employment. (3) Once legitimate protectable interests are shown, the covenant must be shown by the former employer to be no wider than reasonably necessary. (4) Even if the covenant is held to be reasonable, the court will decide whether, as a matter of discretion, the relief sought should in all the circumstances be granted having regard, amongst other things, to its reasonableness at the time of trial. (5) The burden is on the covenantee to establish that the restraint is no greater than reasonably necessary for the proper protection of protectable interests. (6) Reasonable necessity is to be assessed from the perspective of reasonable persons in the position of the parties at the time that the contract was entered into or varied and having regard to the contractual provisions as a whole and to the factual matrix to which the contract would then realistically have been expected to apply ...”
[42]In the present case, it is important to note the limited nature of the clauses relied on by TTD. Clause 23 concerns only misuse of confidential information and trade secrets; it does not restrict the use of knowledge and experience honestly acquired, other than in confidence, in the course of employment with TTD. Clause 29 concerns only TTD’s own property. As for clause 24, this is confined in its operation. Clause24.1 applies only during the continuation of the employment. Clause24.2 is limited in duration to six months and, far from being indiscriminate, applies only in circumstances where the employee has a relevant connection with the customers or suppliers. This is sufficiently explained above.[43]The contractual provisions have to be considered in the light of the factual circumstances. Mr Sharpe held a senior managerial position within TTD. He was closely concerned with the company’s operations “on the ground”. He had personal involvement with both customers and suppliers, and he had knowledge of the details of their trading relationship with TTD. The nature of the business is also relevant. It did not require significant equipment, much in the way of start-up finance, or even business premises. In addition to a computer, a telephone and a website, it required only knowledge of potential suppliers and customers and a degree of know-how. Thus it was vulnerable to competition from employees who chose to set up their own businesses. Mr Sharpe is quite right to say that TTD, like other businesses, must compete in a free market. That does not, however, mean that it is not reasonably entitled to a measure of protection from competition that relies as a springboard on knowledge of customers and suppliers acquired during the course of the employment. In my judgment, TTD clearly has a legitimate interest in protecting its connections in that regard. Much of TTD’s business related to events, such as rugby or football tournaments, that were repeated annually and depended not only on customers but on suppliers of venues and accommodation. In that light, the six-month period specified in clause 24.2 is in my judgment a very modest and wholly reasonable restraint.

Was Mr Sharpe in breach of contract?

[44]In paragraphs 6 to 10 of the Amended Particulars of Claim, TTD makes the following allegations of breach by Mr Sharpe of his obligations under the employment contract:(1) In breach of clause 29, on termination of his employment Mr Sharpe took electronic files and documents that constituted confidential information or trade secrets, as follows: (a) TTD’s customer database; (b) TTD’s database of match officials; (c) various files that he copied to an external drive, the Seagate Expansion Drive, on 26 January 2016 immediately after his suspension; (d) emails and attachments that he had sent from his work account to his personal email account during 2014 and 2015.(2) In breach of clause 23, after termination of his employment Mr Sharpe used those files and documents to further AST’s business.(3) In breach of clause 24, within six months of the termination of his employment Mr Sharpe sought to entice, induce or encourage TTD’s customers to move their custom from TTD.(4) In breach of clause 24, within six months of the termination of his employment Mr Sharpe solicited business from TTD’s suppliers, namely (a) suppliers of sports venues in Dubai, (b) a Mr Ul Haq, a logistics provider in Dubai, and (c) a supplier of a sports venue in Turkey; and he thereby also sought to interfere and did interfere with the supply by these suppliers of relevant services to TTD.

Clause 29

[45]The first matter relied on by TTD is the fact that, immediately upon his suspension, Mr Sharpe copied various of its files onto an external hard-drive: the files contained in the folders “BWFC Cup”, “Gloria” and “Mardan Place”. These, as they appear in hard copy in the trial bundle, were substantial documents. Mr Sharpe sought to argue that the evidence established only that certain files had been copied but not that the files contained anything. I see no reason to suppose that Mr Sharpe copied empty files or that the files were anything other than they appear to be, namely carriers of significant data. I have already made clear that I do not accept that they were copied randomly or in frustration; they were clearly being copied to be available for future use other than in TTD’s business. Although it is of course a matter of inference, having regard to the entire circumstances of the case it is reasonable to suppose and I find that Mr Sharpe did not simply destroy the copies he had made when his suspension was ended by dismissal. I find that he was in breach of clause 29 by taking and retaining these copies.[46]The second matter relied on by TTD is the fact that Mr Sharpe forwarded both emails and documents from his business account to his personal account. There are two slightly different aspects to this point.[47]In the first place, TTD’s pleaded case was that in 2014 and 2015 Mr Sharpe forwarded to himself documents about sports tournaments, including site plans, pricing lists, sales transactions, accommodation transactions, risks assessments, method statements and the like, as well as a specimen employment contract. The Defences admit the allegation to the extent that it is particularised, though does not admit the exact number and nature of documents that Mr Sharpe forwarded to himself. The disclosed evidence confirms that in 2014 and 2015 Mr Sharpe did indeed send considerable quantities of documentation from his work account to his private email address. This was not something that he sought to deny. TTD’s case was that his motives for sending this documentation to his personal account were nefarious: he was taking data for his own purposes, with a view to setting up in competition. Mr Sharpe’s case was that he was only acting out of convenience, for example so that he could work on the documents at home or so that he could print them out on a colour printer (he said there was no such printer at the office, though he had one of his own). Mr Sharpe’s explanations were not wholly convincing. Thus, it is unclear why he should need to print the documents out in colour for his own use; some of the documents were monochrome; and it seems unlikely that, if access to colour copies of documents was necessary for working purposes, TTD should not have had a colour printer at the office (as, on its case, it did). However, the more general point, that it was convenient to have the documents on the personal account so that he could more easily work on them at home, is not wholly implausible. And by no means all of the documents that Mr Sharpe sent to his personal account were the kind of thing that would be taken for use in setting up a competitive business. If the motive for sending some of the documents was probably innocent, why should the motive for sending any of them be guilty? Further, it is not a breach of clause 29 to have sent the documents to the personal email account. The breach would consist in not deleting them from that account and from Mr Sharpe’s personal computer. The evidence at trial focused on the sending rather than the retention of the documents. It is very improbable that Mr Sharpe dutifully deleted the documents when his employment ended. Whether he made any use of them is a different matter.[48]In the second place, the Defences state that Mr Sharpe “recalls forwarding some emails at around the time of his suspension”, though they say he has not made use of them. This admission goes beyond the scope of the pleaded case, in that it relates to a later period, and in the circumstances indicates the probability of further breaches of clause 29.[49]The third matter relied on by TTD is the allegation that Mr Sharpe took with him documents comprising or containing lists of customers and lists of match officials. This allegation rests on inferences to be drawn from subsequent communications between AST and customers and referees. Mr Sharpe denied that he had copied TTD’s databases.[50]I am not satisfied that Mr Sharpe copied a database of referees, although it is possible that he did so. A text message sent by a referee called Paul Fish to Mr O’Neill on 26 January 2017 states that Mr Sharpe was “touting Welsh refs for a tournament in Dubai in mid April”. The implication is that Mr Sharpe had spoken to Mr Fish:
“It was a short conversation lol”
. Mr Sharpe denied contacting Mr Fish, but I do not believe him. However, I cannot infer that TTD’s database of referees was used for this purpose.[51]However, the position is different as regards customers. As I shall mention presently, Mr Sharpe and AST contacted numerous customers of TTD and did so by email. In many cases the customers were overseas and the email addresses were private ones (such as Yahoo or Hotmail). The most likely way that Mr Sharpe got these addresses is from TTD’s records. He denied having made any use of contact details acquired from TTD, but I did not find his evidence persuasive and I reject it. Accordingly, I find that in this respect Mr Sharpe was in breach of clause 29. In this context, it is convenient to consider next clause 24.

Clause 24

[52]Paragraph 24 of the Amended Particulars of Claim alleged that, within six months of the termination of his employment, Mr Sharpe sought to induce or encourage TTD’s customers to transfer or remove custom from TTD, by sending out mailshots to or otherwise contacting clients on TTD’s customer database. Paragraph 12 of Mr Sharpe’s Amended Defence denied the allegation, but it admitted that Ryan Sharpe of AST had sent out mailshots within six months of Mr Sharpe’s dismissal.[53]TTD made a request for further information in respect of that admission, pursuant to CPR Part 18, and on 29 August 2017 I ordered the defendants to state to the best of their knowledge and belief which of the recipients of the mailshot were or had been customers of TTD. Both the terms of the order and the nature of the discussion at the hearing ought to have been sufficient to make it entirely clear that the mailshots in question were those mentioned in the admission, namely those in the period to 1 September 2016. On 11 September 2017 the defendants provided, by way of response, “a list of clients who may have crossed over on mailshots sent by Aspire Sports Tours as the claimant and Aspire Sports Tours work in the same geographical location and market”. There followed a list of twenty-six email addresses, most of them personal rather than institutional. On 21 September 2017, the defendants provided a list of seventeen further email addresses “which may or may not coincide with what is on your client’s data base”. They insisted, however:
“the information we have used in compiling our database is derived from the public domain. To the extent that such details are also on your client’s database (and it might be surprising if they weren’t) then that is coincidence only and does not establish any such use by us of your client’s particulars.”
TTD identified twenty-one of the contacts on the first list and eight of the contacts on the second list as being its customers.[54]Mr Sharpe said in cross-examination that the lists provided pursuant to the order of 29 August 2017 had not been limited, as intended, to those contacted within the six-month period ending on 1 September 2016. He claimed to have misunderstood the scope of the Part 18 request and the order. That would limit the significance of the admission for the purposes of considering breach of clause 24, though in fact it would make little practical difference to the case as a whole. I reject Mr Sharpe’s evidence on this point. What was required was clear, and Mr Sharpe is not unintelligent.[55]The rather complex structure of clause 24.2 has been explained above. In my judgment, the relevant actions of AST are properly to be regarded as those of Mr Sharpe, at least “indirectly” if not “directly”, and the custom being sought would be in respect of “Relevant Services”. I also consider that, on a balance of probabilities, the twenty-nine customers identified by TTD will have been “Customers” within the definition in clause 24.3. The first condition will have been relatively easily satisfied, if the individuals were in any sense customers. As for the second condition, it is not established that the first method of satisfying it is made out, though it seems not unlikely that it was. However, the second way of satisfying the condition is made out if, as I consider strongly probable, the contact details of the individuals were on a list of some sorts taken by Mr Sharpe. Given his position within TTD, it is also likely that either Mr Sharpe or sales staff reporting directly to him had further confidential information about these customers; however, this does not need to be considered further.[56]Regarding suppliers, the relevant question is whether, in the period to 1 September 2016, Mr Sharpe directly or indirectly solicited or attempted to solicit business from any of TTD’s Suppliers for the supply of Relevant Services, within the terms of clause 24.2.4. (I see no evidence that he in any other way sought to interfere with the supply of Relevant Services to TTD.) I find that the answer is that he did so. In August 2016 Mr Sharpe contacted Mr Imran Ul Haq, a professional tour guide based in the United Arab Emirates, who was a supplier of services to TTD in respect of the events it put on in Dubai, and asked him to assist him with similar services for AST in respect of a planned football tournament in Dubai. Further plans for that event were made during June and August 2016, which involved communications by Mr Sharpe with one Adam Griffiths, a former employee of Dubai Sports City, any by Mr Griffiths with one Sean Carey, who then worked for Dubai Sports City. Dubai Sports City was a longstanding supplier of TTD; its stadium was one of two used by TTD for a football tournament it held in Dubai. Mr Carey applied to the Dubai Sports Council for a “Sports Events Non-Objection Declaration” in respect of the “AST Champions Cup”, to be held at the Dubai Sports City Stadium the following April. When he received the Declaration on 24 August, Mr Carey forwarded it by email to Mr Griffiths (who was using an AST email address), and he in turn forwarded it to Mr Sharpe and Ryan Sharpe. Both Mr Ul Haq and Mr Griffiths were contacts with whom Mr Sharpe had dealings in the course of his employment with TTD.

Clause 23

[57]As to clause 23, TTD relies on communications between Mr Sharpe and its customers and suppliers, after the termination of his employment, as demonstrating that he used confidential information (within the terms of clause 23.1.1) or disclosed it to AST.[58]The matters relied on by TTD in this regard are largely those relied on in connection with clause 24. However, it is to be noted that clause 23, which concerns the use of TTD’s confidential information, is not limited in the same way as clause 24, either regarding time (the six-month period does not apply) or regarding the very tight definitions of Customers and Suppliers. There is evidence that AST made contact with other customers of TTD who do not appear on the lists mentioned above; these included Malcolm Griffiths, John Knowles and Mark Berry. These communications, which may have taken place outside the six-month period, support the inference, which I consider to be strongly probable, that Mr Sharpe used and enabled AST to use confidential information after the termination of his employment.[59]It is one thing to prove breach of contract. It is another to prove that the breach has caused loss and damage. I now turn to that issue. Damages for breach of contract The law

Damages for breach of contract

[60]The basis on which awards of damages should be made in cases such as this and in claims for breach of contract more generally was considered by the Supreme Court in Morris-Garner v One Step (Support) Ltd [2018] UKSC 20, [2018] 2 WLR 1353, where the majority of the Court agreed with Lord Reed’s judgment. The short point in the case was that the trial judge had been wrong to hold that the claimant was entitled to damages assessed, at its election, either on the basis of user damages or on the basis of ordinary compensatory damages; and that the Court of Appeal had been wrong to think that the deliberate nature of the defendants’ breach of contract, or the difficulty of establishing precisely the claimant’s financial loss, or the claimant’s interest in preventing the defendants’ profit-making activities justified a monetary award on any other than a compensatory basis. At [32] Lord Reed cited with approval the well-known dictum of Parke B in Robinson v Harman (1848) 1 Exch 850:
“The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.”
He continued at [36]:
“It follows from the principle in Robinson v Harman that the language of election is not appropriate in a discussion of the quantification of damages for breach of contract. The objective of compensating the claimant for the loss sustained as a result of non-performance (an expression used here in a broad sense, so as to encompass delayed performance and defective performance) makes it necessary to quantify the loss which he sustained as accurately as the circumstances permit. What is crucial is first to identify the loss: the difference between the claimant’s actual situation and the situation in which he would have been if the primary contractual obligation had been performed. Once the loss has been identified, the court then has to quantify it in monetary terms.”
[61]Lord Reed then addressed the problems that arise when quantification of the damages is difficult:
“37. The quantification of economic loss is often relatively straightforward. There are, however, cases in which its precise measurement is inherently impossible. As Toulson LJ observed in Parabola Investments Ltd v Browallia Cal Ltd (formerly Union Cal Ltd)[2010] EWCA Civ 486, [2011] QB 477, para 22: ‘Some claims for consequential loss are capable of being established with precision (for example, expenses incurred prior to the date of trial). Other forms of consequential loss are not capable of similarly precise calculation because they involve the attempted measurement of things which would or might have happened (or might not have happened) but for the defendant’s wrongful conduct, as distinct from things which have happened. In such a situation the law does not require a claimant to perform the impossible, nor does it apply the balance of probability test to the measurement of the loss.’ An example relevant to the present case is the situation where a breach of contract affects the operation of a business. The court will have to select the method of measuring the loss which is the most apt in the circumstances to secure that the claimant is compensated for the loss which it has sustained. It may, for example, estimate the effect of the breach on the value of the business, or the effect on its profits, or the resultant management costs, or the loss of goodwill: see Chitty on Contracts, 32nd ed (2015), paras 26-172 - 26-174. The assessment of damages in such circumstances often involves what Lord Shaw described in Watson, Laidlaw at pp 29-30 as ‘the exercise of a sound imagination and the practice of the broad axe’. 38. Evidential difficulties in establishing the measure of loss are reflected in the degree of certainty with which the law requires damages to be proved. As is stated in Chitty, para 26-015, ‘[w]here it is clear that the claimant has suffered substantial loss, but the evidence does not enable it to be precisely quantified, the court will assess damages as best it can on the available evidence’.”
It is important to note that Lord Reed was not saying that compensatory damages could be awarded when there was no loss to be compensated. His observations were directed to the case where it is clear that there were substantial losses (which I take to be more than merely nominal or notional losses) but it was impossible to quantify them with precision. In such a case the court, acting on the basis of the evidence it has, must do the best it can. ‘Some claims for consequential loss are capable of being established with precision (for example, expenses incurred prior to the date of trial). Other forms of consequential loss are not capable of similarly precise calculation because they involve the attempted measurement of things which would or might have happened (or might not have happened) but for the defendant’s wrongful conduct, as distinct from things which have happened. In such a situation the law does not require a claimant to perform the impossible, nor does it apply the balance of probability test to the measurement of the loss.’[62]At [41]-[47] Lord Reed considered the jurisdiction to award damages in lieu of an injunction. Such damages are available in respect not of past but of future or continuing wrongs: see [47]. They are “a monetary substitute for an injunction”, designed “to give an equivalent for what is lost by the refusal of the injunction”: see [44]. “The power to award damages in substitution for an injunction is dependent on the court’s having jurisdiction to grant an injunction, determined as at the commencement of the proceedings”: see [45]. It may be a condition of the existence of the jurisdiction to award such damages that the proceedings contain a claim for an injunction, but it does not appear to be necessary that there should have been any prospect on the facts of an injunction being granted: see [45], taken with [4].[63]Lord Reed then discussed circumstances in which damages might be awarded in respect of the loss equivalent to the economic value of the right which has been breached, considered as an asset. In the light of that discussion, he set out his conclusions at [95]:
“(1) Damages assessed by reference to the value of the use wrongfully made of property (sometimes termed ‘user damages’) are readily awarded at common law for the invasion of rights to tangible moveable or immoveable property (by detinue, conversion or trespass). The rationale of such awards is that the person who makes wrongful use of property, where its use is commercially valuable, prevents the owner from exercising a valuable right to control its use, and should therefore compensate him for the loss of the value of the exercise of that right. He takes something for nothing, for which the owner was entitled to require payment. (2) Damages are also available on a similar basis for patent infringement and breaches of other intellectual property rights. (3) Damages can be awarded under Lord Cairns’ Act in substitution for specific performance or an injunction, where the court had jurisdiction to entertain an application for such relief at the time when the proceedings were commenced. Such damages are a monetary substitute for what is lost by the withholding of such relief. (4) One possible method of quantifying damages under this head is on the basis of the economic value of the right which the court has declined to enforce, and which it has consequently rendered worthless. Such a valuation can be arrived at by reference to the amount which the claimant might reasonably have demanded as a quid pro quo for the relaxation of the obligation in question. The rationale is that, since the withholding of specific relief has the same practical effect as requiring the claimant to permit the infringement of his rights, his loss can be measured by reference to the economic value of such permission. (5) That is not, however, the only approach to assessing damages under Lord Cairns’ Act. It is for the court to judge what method of quantification, in the circumstances of the case before it, will give a fair equivalent for what is lost by the refusal of the injunction. (6) Common law damages for breach of contract are intended to compensate the claimant for loss or damage resulting from the non-performance of the obligation in question. They are therefore normally based on the difference between the effect of performance and non-performance upon the claimant’s situation. (7) Where damages are sought at common law for breach of contract, it is for the claimant to establish that a loss has been incurred, in the sense that he is in a less favourable situation, either economically or in some other respect, than he would have been in if the contract had been performed. (8) Where the breach of a contractual obligation has caused the claimant to suffer economic loss, that loss should be measured or estimated as accurately and reliably as the nature of the case permits. The law is tolerant of imprecision where the loss is incapable of precise measurement, and there are also a variety of legal principles which can assist the claimant in cases where there is a paucity of evidence. (9) Where the claimant’s interest in the performance of a contract is purely economic, and he cannot establish that any economic loss has resulted from its breach, the normal inference is that he has not suffered any loss. In that event, he cannot be awarded more than nominal damages. (10) Negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset. That may be the position where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed. The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset. The defendant has taken something for nothing, for which the claimant was entitled to require payment. (11) Common law damages for breach of contract cannot be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, other than in exceptional circumstances, following Attorney General v Blake. (12) Common law damages for breach of contract are not a matter of discretion. They are claimed as of right, and they are awarded or refused on the basis of legal principle.”
[64]The facts of Morris-Garner are of no special relevance; the task in each particular case is to apply established legal principles to the facts of that case. However, it is of interest to note Lord Reed’s remarks at [98]:
“This is a case brought by a commercial entity whose only interest in the defendants’ performance of their obligations under the covenants was commercial. Indeed, a restrictive covenant which went beyond what was necessary for the reasonable protection of the claimant’s commercial interests would have been unenforceable. The substance of the claimant’s case is that it suffered financial loss as a result of the defendants’ breach of contract. The effect of the breach of contract was to expose the claimant’s business to competition which would otherwise have been avoided. The natural result of that competition was a loss of profits and possibly of goodwill. The loss is difficult to quantify, and some elements of it may be inherently incapable of precise measurement. Nevertheless, it is a familiar type of loss, for which damages are frequently awarded. It is possible to quantify it in a conventional manner, as is demonstrated by Mr Hine’s [the claimant’s expert’s] report.”

This case

[65]TTD set out its claim for damages in a Schedule of Loss. Leaving aside heads of loss said to be referable to infringement of copyright, which I deal with separately below, several claims were pursued at trial with particular reference to the allegations of breach of contract. Some evidence on the figures was given by expert forensic accountants, whose oral evidence was received concurrently to good effect: for TTD, Mr Seamus Gates; for AST, Mr Fred Brown. I am grateful to the experts for the helpful manner in which they gave their evidence. I take the heads of loss in turn.[66](1) French Rugby Festival: TTD’s case was that, having run this festival annually for several years, it was forced to withdraw it in 2016 because Mr Sharpe had deleted from his devices “key documentation relating to the competition, including all contacts and literature, information relating to logistics, travel information and pre-planning video footage.” The case was advanced on the basis of the accounting evidence of Mr Gates, who estimated that, on the basis of the figures for 2014 and 2015, TTD would have made a profit of £27,153 from the event if it had gone ahead.[67]The main explanation of this head of loss was given by Mr O’Neill when he was recalled to give evidence in respect of a lately disclosed document. That document was an email dated 8 February 2016 from Mr O’Neill to a customer, explaining the decision not to hold the festival that year:
“Having operated the French Festival of Rugby continuously for fifteen years, the Directors took the decision that in 2016 it would not be responsible of us to bring together thousands of children, supporters and their families and operate the French Festival of Rugby given the recent terrorist attacks in France. The reality was that we could not be sure of the safety of the large number of players and their supporters coming together in one place at one time in case the festival became an easy target for the cowardly individuals who have bestowed such horrific hurt and loss to so many.”
The email was no doubt referring to the coordinated terrorist attacks in Paris on 13 November 2015.[68]Mr O’Neill’s evidence was that the terrorist attacks were an excuse for TTD’s inability to hold the festival; it could not tell its customers the real reason why the festival was not being held, which was that critical data necessary for the planning of the event had been deleted by Mr Sharpe from his mobile telephone when he returned it to factory settings before handing it back.[69]Although it is probable that information relating to the event had indeed been deleted by Mr Sharpe when he restored his telephone to factory settings, I reject Mr O’Neill’s evidence regarding the decision not to hold the event and I find that the evidence was deliberately given falsely. First, it is inherently likely, though not necessarily the case, that the explanation given to third parties was the true one. Second, it is improbable, albeit not impossible, that TTD would be so cynical as to blame a terrorist alert for the consequences of its own internal problems. Third, Mr O’Neill’s attempt to explain why, when it was found that the data were missing, someone (or even, as he rather implausibly insisted, two people) could not instantly be despatched to France to replicate Mr Sharpe’s work was in my judgment thoroughly unconvincing. It seems to me that, if had otherwise been desired to hold the event, the loss of what was on Mr Sharpe’s mobile telephone is unlikely to have been critical. Fourth, the paucity of evidence on this matter was only highlighted by the fact that the first serious explanation of how Mr Sharpe was responsible for the cancellation came in the circumstances set out above. It may be observed that the deletion of data relating to the festival only became known when TTD got around to examining Mr Sharpe’s returned devices; and it did this only some nineteen days after they had been delivered up. This does not suggest that TTD was taking active steps in preparation for the festival. Fifth, as Mr Brown observed, there is no documentation relating to cancelled bookings for the event or the refunding of deposits, although the evidence from 2015 suggests that TTD would have received most if not all of the bookings and payments by the time Mr Sharpe was suspended in late January 2016. Sixth, the disciplinary hearing took place three weeks after the email referred to above; yet, although Mr O’Neill referred to the deletion of data concerning the French event, referring to it as a “very serious thing” and showing an “incredible lack of respect”, he did not complain that Mr Sharpe’s actions had necessitated the cancellation of the event. He would have done so, if what he now says were true.[70](2) Dubai International Super Cup: This is an event that TTD has held annually in Dubai since 2011, either at the Sevens Stadium or at the Dubai Sports City Stadium. TTD’s case is as follows: the event had outgrown this capacity and that the demand for the 2017 tournament was such that TTD intended to use both stadiums for the event; however, when TTD sought to book the Dubai Sports City Stadium it found that AST had already booked the stadium for a similar event; therefore it “was not able to hire” the stadium, with the result that it could not expand as it had intended in order to take advantage of the increased demand and was “forced to turn away entrants from its tournament due to lack of available pitches”. Two heads of loss are claimed in this respect. First, there is a claim for loss of profits: as advanced at trial, this was for £62,235, which was based on an historic profit at the rate of £20,745 for each pitch used and the supposition that TTD would have used three additional pitches at the Dubai Sports City Stadium. Second, there is a claim for travel costs of £7,298.12 in respect of two additional visits to Dubai (1 to 5 November, and 28 November to 1 December 2016) made “in order to mitigate the claimant’s losses”.[71]I reject this head of claim, for reasons set out below. But, to put the point shortly, I take the view that, understandably annoyed at Mr Sharpe’s behaviour, Mr O’Neill has invented “losses”, notably those relating to this event and to the French rugby event, with a view to attempting to put AST and Mr Sharpe out of business.[72]First, the claim in this regard is simply implausible. The dates for which AST booked the Dubai Sports City Stadium (5 to 7 April 2017) did not overlap with the dates of TTD’s tournament (10 to 13 April 2017). So it is not true that the former event prevented TTD from booking the stadium. TTD addressed this point by saying that the decision not to use the stadium came down to a matter of commercial judgement, based on potential confusion in the minds of customers. I do not find that at all persuasive. If as TTD claims it had the levels of demand to justify the use of both stadiums, it is hard to see how or why confusion could arise. Mr O’Neill argued that the existence of two similar events close in time to each other would lead people to think that AST’s event was connected with TTD’s event, to the detriment of TTD’s reputation. To me that makes no sense at all. The existence of a second event would itself distinguish it from the first event; a single event by AST (whom, be it remembered, TTD accused of passing off, albeit that it did not pursue that cause of action at trial) would be more calculated to confuse, in the absence of a different event by way of distinction. Further, to forego the use of Dubai Sports City would have no other effect than to leave AST with sole use of that venue—avoidance of confusion in those circumstances would be a case of cutting off one’s nose to spite one’s face. The claim actually advanced by TTD, though not supported by its expert evidence, was that the loss of profit attributable to the loss of use of the stadium was £123,998.27; that was presumably meant to indicate TTD’s honest belief as to its loss of profit. Invocation of “commercial judgement” does nothing to provide a satisfactory explanation of the decision not to satisfy this perceived level of demand.[73]It is important, in this regard, to note that TTD does not put its case on the basis that AST’s event deprived TTD of anticipated demand. It claims that it was “hugely oversubscribed and sold out for the tournament at an early stage”. (This, of course, further demonstrates the falsity of the argument from confusion.)[74]Second, the contention that, although only one venue had been used in each of the six previous years, two venues were to be used this time rests on the assertion of Mr O’Neill and Alex O’Neill. The Dubai Sports City Stadium and the Sevens Stadium are twenty-three miles apart (the unchallenged evidence of Mr Brown, based on reference to Google Maps). That does not necessarily mean that it would have been impossible or impractical to use both venues for the same event. However, it obviously raises questions about planning and logistics. TTD has produced no documentation showing that any of these planning issues were being actively addressed prior to the booking of the event. Moreover, although the case advanced by TTD rests on the assertion that huge demand made it commercially sensible to seek to expand to a second venue, this demand has not been substantiated by documentary evidence. In the course of preparation of his evidence, Mr Brown sought such evidence by way of disclosure from TTD. What he was provided with were emails showing interest from local teams shortly before the event. This does not show demand of a nature that would have caused TTD in 2016 to consider expanding to a second site, and I also accept Mr Sharpe’s insistence that the major source of TTD’s profit would be from the involvement of international entrants; local teams would serve to use up spare capacity.[75](3) The Disklabs Report: TTD claims £2,929 in respect of the moneys paid to Disklabs for its examination of Mr Sharpe’s computer. In my judgment, that expense is recoverable as damages. Although the report was subsequently used, with necessary modifications, as expert evidence in the case, it was originally obtained in an attempt to discover the extent to which Mr Sharpe had abused TTD’s data, in circumstances where he had wiped the contents of his mobile telephone, placed an unauthorised password on the laptop and refused to answer direct questions as to what data he had deleted.[76](4) Staff Time: This head of claim, in the sum of £17,703.30, relates to all of the causes of action relied on against Mr Sharpe, including passing off (which was not pursued) and infringement of copyright (which is dealt with below):
“Due to the wrongful actions of the defendants in terms of the breaches of contract and the breaches of copyright and passing off, the claimant’s staff has spent a significant number of working hours dealing with the issues and related preparatory work relevant to the litigation.”
Payslips have been produced in respect of the personnel whose time is said to have been engaged. The time said to have been spent is unsupported by documentation—TTD does not use timesheets—but is broken down as follows: 120 hours for Alex O’Neill; 147 hours for Mr O’Neill; 5 hours for Bradley Coles-Perkins; and 3 hours for Johnathan Hopkins.[77]A number of authorities establish that a claim of the kind advanced may lie in appropriate circumstances. In Tate & Lyle Distribution v Greater London Council [1982] 1 WLR 149, Forbes J said at 152:
“I have no doubt that the expenditure of managerial time in remedying an actionable wrong done to a trading concern can properly form the subject matter of a head of special damage.”
In R+V Versicherung AG v Risk Insurance and Reinsurance SA [2006] EWHC 42 (Comm), Gloster J reviewed the authorities and concluded at [77]:
“In my judgment, as a matter of principle, such head of loss (i.e. the cost of wasted staff time spent on the investigation and/or mitigation of the tort) is recoverable, notwithstanding that no additional expenditure ‘loss’, or loss of revenue or profit can be shown. However, this is subject to the proviso that it has to be demonstrated with sufficient certainty that the wasted time was indeed spent on investigating and/or mitigating the relevant tort; i.e. that the expenditure was directly attributable to the tort – see per Roxburgh LJ in British Motor Trades Association v Salvadori [1949] Ch 556 at 569. This is perhaps simply another way of putting what Potter LJ said in Standard Chartered Bank v Pakistan National Shipping [2001] EWCA Civ 55, namely that to be able to recover one has to show some significant disruption to the business; in other words that staff have been significantly diverted from their usual activities. Otherwise the alleged wasted expenditure on wages cannot be said to be ‘directly attributable’ to the tort.”
In Clancy Consulting Ltd v Derwent Holdings Ltd [2010] EWHC 762 (TCC), Coulson J said at [42]:
“[C]laims of this sort, following the line of authorities from Tate & Lyle v GLC [1982] 1 WLR 149 to RV Versicherung AG v Risk Insurance[2006] EWHC 42 (Comm), are not always easy to establish. They require two things, above all: first, they require a proper causal link between the cost incurred and the alleged default on the part of the defendant; and, secondly, they require proof of the extent to which the ordinary trading routine of the claimant was disturbed.”
[78]I am not satisfied on the evidence that the two requirements identified by Coulson J in Clancy Consulting have been established by TTD. Insofar as it is said that time was spent revising the company’s website, this would seem to be referable, if to anything at all, to the alleged infringement of copyright or the no-longer-pursued matter of passing off. Beyond this, there is almost no evidence at all that could be thought to address the two requirements. Mr O’Neill gave evidence that time had to be spent visiting Dubai in late 2016 in order to meet customers and suppliers and prevent the loss of custom as a result of Mr Sharpe’s conduct. However, TTD had established business activities and contacts in Dubai and had very good reason to send personnel there in any event. As I have already indicated, I am sceptical of TTD’s evidence insofar as it seeks to attribute allegedly adverse outcomes to Mr Sharpe and I do not accept that the evidence from Mr O’Neill and TTD’s other witnesses has shown that its business was significantly disrupted in the sense that its staff were diverted from their usual activities.[79](5) General damages: Under this rather vague heading I include a number of related, though distinct ways in which a claim for damages for breaches of covenant and misuse of confidential information was advanced at trial: first, loss of profit; second, loss of goodwill; third, damages relating to the unfair advantage gained by AST by reason of the breaches of covenant.[80]In considering these various ways of putting the matter, I have in mind the principles set out by the Supreme Court in Morris-Garner. Two principles are of special importance. First, damages are compensatory; in particular, they do not exist for the purpose of removing profits from the wrongdoer (save possibly in exceptional cases). In fact, for whatever reason, there is no evidence of the profits made by AST, whether by reason of Mr Sharpe’s breaches of contract or otherwise. Second, compensatory damages can only be awarded when the court is satisfied that there is something to be compensated. Difficulties of proof may mean that the court has to do the best it can, with the use of a “broad axe”. However, that is different from making things up.[81]The most obvious kind of loss in a case such as the present is loss of profits and, perhaps, loss of goodwill. TTD pleaded that it had lost profits in respect of specific activities. However, as set out above, it failed to prove those allegations. It has not sought to prove, and has certainly not succeeded in proving, that Mr Sharpe’s conduct has caused it any more general loss of profits. As regards goodwill, no loss has been established. As Mr Gates explained when he gave evidence, a one-off loss of profit (such as was alleged in respect of the French rugby tournament and the Dubai International Super Cup) will not in itself reduce the value of the business. If, by contrast, there is a sustained reduction in the profitability of the business, the value of the business (i.e. its goodwill) will be reduced. If no loss of profits is established, therefore, there will be no reduction in the value of the goodwill.[82]However, this still leaves the question of “negotiating” damages. As explained above, Mr Sharpe was in breach of the restrictive covenants in his employment contract. It is likely, though not certain, that he continues to be in breach of them, regarding his retention and use of confidential information. The important point is that, in helping to set up the business of AST, he gained a springboard by the wrongful use of information regarding customers and suppliers. The right to enforce the restriction on the use of that information was valuable property in TTD and it was entitled to charge for the release of that right. By effectively taking that release without payment, Mr Sharpe has deprived TTD of value. That deprivation sounds in damages.[83]The quantification of those damages is very difficult. There is no evidence as to the financial performance of AST’s business. There is no direct evidence of the value to TTD of Mr Sharpe’s covenants, though it is certain that they had a substantial rather than a nominal value.[84]Mr Gates provides a summary of TTD’s financial performance; I take the years ending on 31 January in 2014, 2015 and 2016 respectively, modified in the case of 2016 by the figures set out in the 2017 financial statements. Turnover was roughly £1.9m, £1.8m and £1.4m. Gross profit was £745k, £710k and £637k. EBITDA (earnings before interest, taxes, depreciation and amortization) was £128k, £148k and £127k. Profit after tax was £43k, £74k and £70k. I note that employment costs were of the order of £300k per annum (rather less in 2016 and rather more in the other two years).[85]More important than these figures, perhaps, is Mr Sharpe’s salary, which was £35,000 per annum.[86]TTD was not entitled to prevent Mr Sharpe from competing with it or from using his experience and know-how to do so, though it was entitled to a relatively short period of freedom from competition and to prevent him from gaining an unfair advantage in the competition. I have regard to the fact that Mr Sharpe retains confidential information, but also to the fact that the illicit advantage provided by that information will by now have been largely overtaken by the passage of time. Weighing matters up, I conclude that a relatively modest figure represents the value of the covenants. The award will be £10,000. For the avoidance of doubt, this figure covers damages in lieu of an injunction in respect of the retention of confidential information.

Liability of D2 for conspiracy/inducement

[87]TTD claims damages from AST in respect of Mr Sharpe’s breaches of contract on two grounds: first, that it procured those breaches; second, that it conspired with Mr Sharpe to harm the economic interests of TTD by unlawful means, namely by Mr Sharpe’s breaches of contract. Although the plea of conspiracy was not abandoned, Mr Butler accepted that it could add nothing to the plea of procuring breach of contract; therefore I shall not consider it separately.[88]One commits the tort of procuring breach of contract if one knowingly induces another to break his contract with a third party, to the damage of the third party, without reasonable justification or excuse. The word “knowingly” indicates a twofold requirement: one must know of the existence of the contract and intend to interfere with its performance.[89]In this case, it seems simplest to start from the damage for which I have found Mr Sharpe liable. The first head of damage is the cost of the Disklabs report. That relates to Mr Sharpe’s conduct regarding his laptop. The laptop was delivered up to TTD on 27 January 2016. AST did not come into existence until 1 February 2016. It cannot therefore have procured a breach of contract involving illicit use of the laptop.[90]The position is otherwise so far as concerns the other breaches of restrictive covenants and the award of £10,000 in respect of the value of a release of the covenants. The use of confidential information and the exercise of illicit competition were carried out by AST, of which Mr Sharpe was a director from April 2016 and at all times relevant to the substantive matters complained of. His knowledge is to be attributed to the company. And where he has broken his contract for the purposes of AST’s business, it is clear that the company is to be regarded as having procured his breaches. Therefore AST is liable jointly and severally for the £10,000 damages.

Breach of copyright

[91]In paragraphs 12 and 13 of the Amended Particulars of Claim TTD alleges that, by adopting much of the design and content of its website and promotional video footage, AST has infringed TTD’s copyright in the website and video footage.[92]The claim for infringement of copyright, though pursued at trial, was advanced both in the pleadings and in the witness evidence in a somewhat perfunctory manner, without close attention to the issues raised by such a claim, suggesting that it was being approached as part and parcel of the wider claim for damages for competition by illicit means. Indeed, paragraph 13 of the Amended Particulars of Claim alleged that the matters complained of constituted infringement of copyright “and/or passing off”, although the claim for passing off was not pursued at trial. This was not merely a matter of economy of pleading. It indicated that TTD’s case proceeded by observing that the media in question were films, literary works or artistic works, identifying similarities between AST’s productions and those of TTD, attributing the similarities to copying by AST, asserting that this amounted to a breach of copyright, and seeking damages based on the cost of altering TTD’s website so that it looked different from AST’s website. Thus much necessary analysis was bypassed, resulting in difficulties of proof.[93]The following provisions of Part I (sections 1 to 179) of the Copyright, Designs and Patents Act 1988 are particularly relevant:
“1. Copyright and copyright works (1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work— (a) original literary … or artistic works, (b) … films …” “2. Rights subsisting in copyright works (1) The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright in a work of that description.” “3. Literary, dramatic and musical works (1) In this Part— ‘literary work’ means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes— (a) a table or compilation other than a database, (b) a computer program, (c) preparatory design material for a computer program and (d) a database; … (2) Copyright does not subsist in a literary … work unless and until it is recorded, in writing or otherwise …” “178. Minor definitions In this Part … ‘writing’ includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and ‘written’ shall be construed accordingly.” “4. Artistic works (1) In this Part ‘artistic work’ means … a graphic work … irrespective of artistic quality … (2) In this Part … ‘graphic work’ includes— (a) any painting, drawing, diagram, map, chart or plan …” “5B. Films (1) In this Part ‘film’ means a recording on any medium from which a moving image may by any means be produced.” “9. Authorship of work (1) In this Part ‘author’, in relation to a work, means the person who creates it. (2) That person shall be taken to be— … (ab) in the case of a film, the producer and the principal director; …” “11. First ownership of copyright (1) The author of a work is the first owner of any copyright in it, subject to the following provisions. (2) Where a literary … work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.” “16. The acts restricted by copyright in a work (1) The owner of the copyright in a work has, in accordance with the following provisions of this chapter, the exclusive right to do the following acts in the United Kingdom— (a) to copy the work (see section 17); … (e) to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21); and those acts are referred to in this part as the ‘acts restricted by the copyright’. (2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright. (3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it— (a) in relation to the work as a whole or any substantial part of it, and (b) either directly or indirectly; and it is immaterial whether any intervening acts themselves infringe copyright.” “17. Infringement of copyright by copying (1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows. (2) Copying in relation to a literary … or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means. … (6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.” “21. Infringement by making adaptation or act done in relation to adaptation (1) The making of an adaptation of the work is an act restricted by the copyright in a literary … work. For this purpose an adaptation is made when it is recorded, in writing or otherwise. (2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in relation to an adaptation of the work is also an act restricted by the copyright in a literary … work. For this purpose, it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the acts is done. (3) In this Part ‘adaptation’— (a) in relation to a literary work, other than a computer program or a database, … means— (i) a translation of the work; … (ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it; (ac) in relation to a database, means an arrangement or altered version of the database or a translation of it; … (4) In relation to a computer program a ‘translation’ includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code. (5) No inference shall be drawn from this section as to what does or does not amount to copying a work.” “90. Assignment and licences (1) Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property. (2) An assignment or other transmission of copyright may be partial, that is, limited so as to apply— (a) to one or more, but not all, of the things the copyright owner has the exclusive right to do; (b) to part, but not the whole, of the period for which the copyright is to subsist. (3) An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor. (4) A licence granted by a copyright owner is binding on every successor in title to his interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the copyright owner shall be construed accordingly.” “96. Infringement actionable by copyright owner (1) An infringement of copyright is actionable by the copyright owner. (2) In an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right. (3) This section has effect subject to the following provisions of this Chapter.” “97. Provisions as to damages in infringement action (1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy. (2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to— (a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.” (a) original literary … or artistic works, (b) … films …” (a) a table or compilation other than a database, (b) a computer program, (c) preparatory design material for a computer program and (d) a database; … (a) any painting, drawing, diagram, map, chart or plan …” … (ab) in the case of a film, the producer and the principal director; …” (a) to copy the work (see section 17); … (e) to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21); (a) in relation to the work as a whole or any substantial part of it, and (b) either directly or indirectly; and it is immaterial whether any intervening acts themselves infringe copyright.”
For this purpose, it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the acts is done. (a) in relation to a literary work, other than a computer program or a database, … means— (i) a translation of the work; … (ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it; (ac) in relation to a database, means an arrangement or altered version of the database or a translation of it; (a) to one or more, but not all, of the things the copyright owner has the exclusive right to do; (b) to part, but not the whole, of the period for which the copyright is to subsist. (a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement,[94]I deal first with the promotional films, which were played to me at the commencement of the trial. Although paragraph 12 of the Amended Particulars of Claim refers to them as being comprised in the website, the evidence indicated that they were distinct from the website; and that is how they were treated in argument. There are very considerable similarities between AST’s film and the earlier film of TTD. These similarities extend to footage that is identical in both films. Issues were raised on the evidence as to how those similarities came about: TTD said that the matter was simply one of direct copying by AST, but Mr Sharpe and Ryan Sharpe said that the material they used was freely available on the internet and was not obtained from any website or video release by TTD. It is unnecessary to resolve that issue. TTD’s claim in this regard falls at the first hurdle, because it has not shown that it is the copyright owner either under section 11 (first ownership) or under section 90 (ownership by transmission). The evidence goes no further than that TTD’s promotional film was made by a third party for TTD’s use. As the maker has not been shown to have been an employee of TTD—indeed, the tenor of the evidence is that the maker was not an employee of TTD—section 11 does not apply. The fact that the film was made for TTD’s use merely shows that TTD’s use of the film was not a breach of copyright. It does not show that ownership of the copyright was assigned to TTD.[95]I turn to consider the websites. TTD’s case in this regard does not relate to the computer progams as such. Rather it concerns similarities between(a) the website that AST launched in September 2016 and(b) TTD’s website as it existed at that date, regarding what is visible on the screen to the user of the websites (the user interface). Two broad areas of similarity are alleged: first, similarity of text; second, similarity of layout and appearance. Insofar as the complaint is that there has been a substantial copying of text, TTD relies on the website as comprising, or at least containing, an original literary work for the purposes of section 1(1)(a) and 3(1). Insofar as the complaint is that there has been copying of layout and appearance, the website is said to comprise or contain original artistic work for the purposes of section 1(1)(a) and section 4(1).[96]I have had regard to the judgment of Pumfrey J in Navitaire Inc v Easyjet Airline Co and Bulletproof Technologies Inc [2004] EWHC 1725 (Ch), [2006] RPC 3. That rather complicated case concerned Easyjet’s attempt to achieve a system of online ticketless airline booking that was, in respect of its user interface, substantially indistinguishable from the system used by Navitaire, although its underlying software was in nearly all respects quite distinct from that underlying the Navitaire system. The alleged copying was said to have three distinct but related aspects: first, the “look and feel” of the display; second, the individual commands available to the user; third, the displays in response to user instructions. The case shows that mere “look and feel” does not have copyright protection. Pumfrey J considered whether single command names could be considered literary works and said at [80]:
“In the 1988 Act, the phrase ‘literary work’ embraces tables or compilations, computer programs, preparatory design material for computer programs and databases. To concentrate on the word ‘literary’ may mislead, but it must not be ignored. In the end, the question is merely whether a written artefact is to be accorded the status of a copyright work having regard to the kind of skill and labour expended, the nature of copyright protection and its underlying policy. It is not sufficient to say that the purpose of the act is to protect original skill and labour: there was plenty of that in Exxon Corp v Exxon Insurance Consultants International Ltd [1982] RPC 69. Nor is it of much weight that other forms of protection may be available. I think however, that it is clear that single words in isolation are not to be considered as literary works. The individual command words and letters do not qualify.”
Later in the judgment Pumfrey J considered the various screens on the booking system; these, as he said, were obviously part of the user interface. The screens in that case were of two kinds. The first kind displayed only printable characters and was properly to be viewed as being tables and so falling within the scope of section 3(1). The second kind of screen involved a carefully constructed layout of icons, so that the user interface would present various commands and functions to the user in a convenient manner. Pumfrey J held that sufficient skill and labour had gone into the creation of screens of this second kind to entitle them to be considered not merely graphic works but original artistic works for the purposes of sections 1(1) and 4(1). (See his judgment at [95-99] and [309ff].)[97]In the present case, the initial question is: to what extent, if any, is TTD entitled to copyright protection in respect of its own website? Because of the way that TTD approached the copyright issue, there is a paucity of evidence in this regard. TTD has not adduced significant evidence of any of the following: how the website was put together; the work, skill and expertise that went into designing it; the originality of the graphics or of how they compare with or differ from the graphics used on other websites in similar or different businesses; how the text was composed; how the text compares with or differs from text used in other websites; the text of tournament rules used by others, in comparison with the tournament rules found on TTD’s website.[98]Such evidence as there is shows that TTD’s website was designed by either or both of Mr Matthew Gibson and Mr Daniel Bayliss, who were employees of TTD. (Mr Bayliss’s work on the website was not mentioned in evidence before he gave evidence—Mr O’Neill referred only to Mr Gibson’s work on it—but in re-examination Mr Bayliss said that he designed the website, though he did not give details of what he had done and there was no explanation of the relationship between his work and that of Mr Gibson.) Of course, the literary or artistic merit of the website or any parts of does not fall to be considered. But it is still necessary to show that the parts relied on are the product of such skill and effort as to qualify as original literary or artistic works entitled to copyright protection. There is no evidence as to how or by whom the text on TTD’s website was compiled or as to what sources may have used in compiling it.[99]TTD’s case focused heavily on the similarities between AST’s website and TTD’s website. The basic approach was to show that Ryan Sharpe had copied text from TTD’s website, making only modest adjustments to hide his plagiarism. In general terms, I accept that he copied text in the manner alleged. One of the most glaring examples comes, in fact, not from the website but from an email that AST sent to prospective customers for the International Champions Cup Dubai 2017. For present purposes, it suffices to refer to the paragraph dealing with accommodation:
“We have a variety of accommodation choices available depending on the size of your group from Luxury Hotels, to Hostels with Pools, to multi person apartments to keep you feeling at home while on tour. All accommodation choices are within close proximity to many of Dubai’s highlights. CLICK HERE to register your team’s interest for the AST International Champions Cup Dubai 2017.”
Ryan Sharpe insisted that this was his own independent work, underived from any other source. He maintained that evidence even when confronted with TTD’s email to potential customers at the Dubai International Super Cup 2016; the corresponding paragraph reads:
“We have a variety of accommodation choices available depending on party size, ranging from comfortable hostels, lower cost 3* accommodation with swimming pools to 5* hotel options ideal for longer stays. All are situated within close proximity to many of Dubai’s highlights. Click Here to register your teams into the 2016 international competition.”
[100]Another example is drawn from AST’s website. On the page for the International Champions Cup Dubai 2017, under the heading “Tournament Structure” appear fourteen lines of text. Ryan Sharpe’s initial evidence was that he composed the text himself. When he was confronted with the almost identical wording on a corresponding page of TTD’s website, he was dismissive of the comparison, before eventually saying that there were plenty of very similar sites. By my reckoning, there are only four differences between AST’s text and TTD’s text: AST refers to a “penalty shootout” instead of to “penalty kicks”; it states that “Each team will take 5 penalties”, instead of “Each team will take 5 penalties each”; it follows that clause with a full stop instead of a semi-colon; and in the final sentence it omits the words “to play” from “at the pitch ready to play 15 minutes before kickoff”. The otherwise identical texts include two striking errors: first, a reference to “teams drawn in their respected (scil. respective) groups”; second, “the match will be decide (scil. decided) by …”[101]These and other examples lead me to the conclusion that Ryan Sharpe copied text from TTD’s website and its other materials. However, they do not establish that the relevant content of TTD’s website had copyright protection. Another case of similarity is found in the Tournament Rules that AST and TTD published on their websites. Here at least Ryan Sharpe acknowledged that he had used sources in compiling the AST Rules. TTD contend that he used their Rules as a basis for what he wrote and copied from them. Even if that is true, however, it does not show that TTD had copyright protection in respect of the text shown on its own website, because I have no reliable information about the manner in which its text was composed or how it relates to other comparable texts. In cross-examination Mr O’Neill said that TTD had fine-tuned its tournament rules over the years, but his evidence as to the manner of composition fell far short of demonstrating that TTD has any relevant copyright. Because it has relied on a more general unfair-competition/passing-off approach to the issues, TTD has not sufficiently addressed the basis of its copyright claim.[102]Broadly similar difficulties confront the complaints made about other parts of the website, where there is a more obvious conjunction of text and design. The websites both have Contact forms, contained in small boxes with space for name, email address, telephone number and team name. The similarity of AST’s form to TTD’s form does nothing to show that the latter, which appears utterly unremarkable and commonplace, has copyright protection. The same observation applies to the Registration forms: whether viewed as text or graphic, TTD’s form seems ordinary, within the limits of what a registration form must achieve, and that it is the product of sufficient skill and effort to qualify as an original work under the Act is neither axiomatic nor proved by evidence. Two parts of the websites are said to be similar in design and layout: the website footers, and the rugby festival banners. Again, neither of these seems remarkable, and a general similarity of layout is no more than would be expected of sites designed by the same individual. Finally, I mention the Excursions pages of the two websites. The general layout is similar on both, with two rows each containing four photographs with text underneath. Beyond this general layout, there is some overlap of text and pictures, but in neither respect is this particularly striking (one is accustomed to seeing more resemblance in comparable travel agents’ brochures) and I do not know the source of either the text or photographs on the TTD site. Mr O’Neill specifically abjured any contention that the content of the Excursions pages, as distinct from its layout, was a matter of objection.[103]For the reasons indicated above, I am not satisfied that the material parts of TTD’s website attract copyright protection and I reject its claim.[104]This makes it unnecessary to consider the question of quantum of damages, but I shall comment on it briefly. The Schedule of Loss contained two relevant entries: (1) New Website:
“Due to the defendants replicating the website of the claimant, the claimant had to spend money altering its website to remove similarities between the website of the claimant and the website of the defendants to avoid customers being confused by the similar branding and mistakenly signing up to the event of the defendants instead of the claimant’s event.”
A sum of £3,750 was claimed for the time taken by Mr Bayliss in working on the development of a new website between September and November 2016. (2) Copyright and Passing Off:
“The claimant has suffered losses due to the defendants’ breach of copyright and passing off.”
The amount claimed was “to be confirmed” after a “further qualifying analysis to be provided in the expert’s report”.[105]No evidence of actual loss was ever produced by TTD. As for the staff costs of developing a new website, these are a peculiar way of assessing damages for breach of copyright; the basis on which the matter is explained shows that it really has reference to the passing-off claim that was not pursued. It may be that, if I had been satisfied as to the merits of the claim I would have been prepared to have regard to the cost of redeveloping TTD’s website when assessing a proper amount of damages based on the user principle for infringement of the property right under the 1988 Act.[106]Mr Butler submitted that additional damages ought to be awarded for flagrant infringement of copyright, pursuant to section 97(2)(a). No such claim was pleaded, as in my judgment it ought to be, and I would have refused an additional award for that reason, regardless of other considerations.

Conclusion

[107]For the reasons set out above, there will be judgment against Mr Sharpe for £12,929 and against AST for £10,000. As to £10,000 the liability of Mr Sharpe and AST will be joint and several. Mr Sharpe’s counterclaim will be dismissed.[108]This judgment is being handed down in the absence of the parties. As the parties have been unable to agree the terms of the order in respect of consequential matters, I shall adjourn the hearing part-heard in order to receive further submissions. At present I see no good reason why the adjourned hearing should not be by telephone. The parties must provide details of their availability within seven days.