“What is now being suggested by Craig is that there be a settlement deed which brings his employment to an end, which then gives rise to a consultancy agreement, where Craig, as Founder continues to provide agreed consultancy services for Advetec on terms to be finalised.”
“The Respondents must immediately deliver up to the Supervising Solicitor: (1) any desktop or laptop computer, USB storage device, memory stick, disc, tablet device, mobile phone and any other electronic storage device or computer in each of their possession or control (‘Devices’) together with usernames, login details and passwords which are necessary to enable the contents of the devices to be copied or imaged; (2) names, login details and passwords for any account or medium held by the Respondents on which documents or information may be stored in an electronic format, including (but not limited to) any email account, webmail account, website, social networking site, online storage or backup facility or other remote storage facility (‘Electronic Accounts’)”
“Pursuant to clause 4.2 of the order I can confirm that neither the Second Defendant, or I have supplied any of the Applicant's confidential information to anyone other than in the course of my lawful duties on behalf of the Applicant, so far as it relates to products, processes, product information, know-how, designs or trade secrets.”
“The Second Defendant is a family company used to manage our properties. As already explained, it was my intention to then utilise it for my consultancy business after I left the Claimant.”
“It should also be clear from that email that I'm not setting up in competition with the Claimant. The fact is that as yet no work has commenced by the Second Defendant, nor has it or I engaged in any marketing initiatives, nothing beyond the draft GGC presentation.”
“Peter Klaich was sacked by the Claimant in December 2018 and has had no involvement with it since.”
“4. The First Respondent must not, until Trial or further Order of the Court, and save as notified to and agreed by the Board of the Applicant, (whether paid or unpaid) be directly or indirectly engaged or concerned in any capacity in any business other than the Applicant, except that he is not prohibited from: (1) acting as a director and shareholder of the Second Respondent: and (2) holding an investment by way of shares or other securities of any company where such company does not carry on a business similar to or competitive with any business been carried out by the Applicant or any Group Company.”
“The Claimant was always clear that an amendment was likely to follow” and expressing his belief that this would have been reasonably obvious to the Defendants as well. In that witness statement, Mr Ashley describes the process of disclosure by the Defendants through the Defendants’ computer experts, Lineal. On15 May 2020 , the Defendants made their first disclosure statement and at the same time, Lineal provided a letter explaining their search methodology and how the search results were provided through an online document repository called Relativity. With the receipt of the first disclosure statement and the information from Lineal, Ms Marsha Robinson of the Claimant’s solicitors, Paladin, wrote, at 10:55 on15 May 2020 , an email to Lineal, stating, among other things, as follows: “Also, we note you refer to, ‘iPad, iPhone data and cloud data’. In fact, the data captured by Cyfor was more extensive than this and covered a greater range of devices, including an Apple MacBook Pro laptop, a Dell Computer, two pen drives and five electronic accounts. Could you please confirm that you carried out the search exercise across the entirety of this Cyfor for data.”
“Lineal have today detected a tranche of files, potentially containing documents that were not identified in the original data corpus for processing. We are currently undertaking a full investigation as to how and why this happened and will revert once that investigation is completed, and provide you with our findings. Lineal's immediate concern is that the newly identified files may contain documents that are responsive to parsing criteria such as keywords etc. We are aware that disclosure occurred on Thursday 15th May. Please be on notice that there might possibly be a supplemental set of documents for disclosure.”
“In the event, the upshot of the Claimant’s and our efforts has been the identification of over 170 separate specific occasions/instances of wrongdoing by the Defendants. Bearing in mind that all of these will constitute multiple breaches of express and implied terms in the First Defendant's contract of employment, and fiduciary duties, and that many will constitute further breaches of contract, equitable, tortious and/or fiduciary duties, the individual breaches identified from the disclosure run into the thousands.”
“(3) Where the committal application relates to both- (a) a false statement of truth or disclosure statement; and (b) breach of a judgment, order or undertaking to do or abstain from doing an act, Section 2 (Committal for breach of a judgment, order or undertaking to do or abstain from doing an act) applies, but subject to paragraph (4). (4) To the extent that a committal application referred to in paragraph (3) relates to a false statement of truth or disclosure statement – (a) the Applicant must obtain the permission of the court in accordance with rule 81.18; or (b) the court may direct that the matter be referred to the Attorney General with a request that the Attorney General consider whether to bring proceedings for contempt of court.”
“Where, as here, the application for permission is premature because it raises factual issues which will be investigated at trial, it follows that contempt proceedings at this stage would not be in the public interest. That entails the dismissal of the application. It would be wrong as a matter of logic and principle to adjourn rather than dismiss the permission application merely because after trial a similar application (inevitably by then based on different evidence) might be capable of being brought: see TBD (Owen Holland) Ltd v Simons[2020] EWCA Civ 1182 at paragraphs 236-238.”
“Peter Klaich was sacked by the Claimant in December 2018 and has had no involvement with it since.”
“This document contains confidential and proprietary information that cannot be reproduced or divulged, in whole or in part, without authorisation in writing from Advetec.”
“The fact is that as yet no work has commenced by the Second Defendant , nor has it, or I, engaged in any marketing initiatives, nothing beyond the draft GGC presentation.”
“Hi John, you used to buy product from Advetec and they no longer process that material, it's now handled by Green Gold Consulting, and we have a volume in stock of the seaweed. Please can you send me your requirements and I will be happy to set up the same terms, etc you had from Advetec. If you order this week we can ship your goods either next week or on Monday 6th October.”
“Generally in response to paragraphs 107 to 115 I state that far from my being in competition with the Claimant, I was, notwithstanding all that was going on and the way that I was being treated by them, still promoting the Claimant’s business. By way of example there is included at pages 41-42 of my Exhibit an exchange of emails with Isaac Garcia, director at Boston Children’s Hospital. As is very clear I am introducing to him to the Claimant and encouraging him to use their services/products. It should also be clear from that email that I am not setting up in competition with the Claimant.”
“Let's assume that Amber is the mole. If I send the email below to Isaac, and Issaih, and they send it back confirming that we are not dealing with the project. We shut everything down. We can also get this dated say for last week before I left UK. Then, that's Advetec gone and us clear. Then we can introduce new player to Isaac to take project forward. Isaac would need to be on board and complete the resources.”
“Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well-founded. If parties thought that they could gain an advantage by singling out the statements and making them the subject of a committal application, the usual process of the litigation would be seriously disrupted. In general the proper time for determining the truth or falsity of the statements is at trial, when all the relevant issues of fact are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application underCPR part 32.14 .”
“The critical question in this and every case is whether or not it is in the public interest that an application to commit should be made. That is not an issue of fact but a question of judgment. The discretion to permit an application to commit should be approached with considerable caution. It is not in the public interest that applications to commit should become a regular feature in cases where, at or shortly before trial, it appears that statements of fact in pleadings supported by statements of truth may have been untrue.”
“4. The overriding test to be applied to an application for permission to bring committal proceedings is whether such proceedings are in the public interest. A necessary but not sufficient condition for the Applicant to satisfy is to show that there is a strong prima facie case that the respondent is in contempt of court. In deciding whether that condition is satisfied, the court must give reasons for its decision while being careful not to prejudice either the substantive litigation or any future committal proceedings. The matters on which TBD relies in making its present application are all concerned, of course, with Mr O’Boyle’s conduct in the litigation; they are not themselves matters directly concerning his involvement in the events constituting the subject matter of the substantive claim. However, in this particular case that is a very nice distinction, because the falsehoods for which Mr O’Boyle is said to have been responsible are concerned with the state of his (or, in one case, OSL’s) involvement in the events constituting that subject matter. Despite the best efforts of Mr Butler QC for TBD to persuade me to the contrary, it seems to me that a trial of the alleged acts of contempt would impinge very greatly on the issues in the substantive litigation. In those circumstances, I do not consider it to be in the interests of the efficient proceedings while the substantive litigation is ongoing. I am also mindful of the risk that, in what without fear of contradiction I may describe as vigorously pursued litigation, committal proceedings might become an inter partes tool of litigation advantage and cease to be a vehicle of the public interest. 5. I have considered and rejected two possible courses of action. One is to determine the permission application now and, if permission were granted, to give direction that the committal proceedings be dealt with at the end of the case. The disadvantage of that course, as it seems to me, is that I should have to form a judgment now on the existence or non-existence of a strong prima facie case against Mr O’Boyle. Because of the close connection between that issue and the issues in the substantive claim against Mr O’Boyle, that seems to me to be an unattractive course. It would also have limited utility, as any view that could now be expressed would have a less secure basis than would the view formed by the trial judge. 6. The other possible course that I have considered but rejected is simply to strike out or dismiss the present application. It seems to me that nothing material would be gained by that. It would, of course, mean that an application for permission were not pending during the further continuance of the proceedings. However, TBD would be entitled to bring a further application for permission at a later stage and, if it intended to do so, it would be proper for it to give notice of that intention to Mr O’Boyle at this stage. The matters relied on by TBD are such that the possibility of committal proceedings cannot be ruled out, at least until after trial. To leave the application in abeyance would be materially similar to granting permission now but directing that committal proceedings would not take place before the conclusion of this case; in submissions, counsel were agreed that the latter course would be permissible, though for difference reasons they urged me against taking it. 7. Instead, I have decided to determine some main issues between the parties in connection with TBD’s application (namely, whether the application ought to be refused on grounds of litigation privilege, the privilege against self-incrimination, or misconduct in connection with the execution of a search order); and, having determined those issues in TBD’s favour for reasons set out below to adjourn the present application for further consideration after the trial or further order in the meantime. All I think it necessary to say at this stage is that, in view of the conclusions I have reached as to admissibility of evidence, it cannot be said to be unarguable that there is a strong prima facie case. However, in my judgment, for reasons I have indicated, it is preferable that the question whether there is indeed such a case be not considered in advance of the trial.”
“Counsel for Mr O’Boyle submitted that the judge’s reasoning at [6] was flawed. As the judge’s reasoning at [4]-[5] and [7] recognised, the application for permission to bring committal proceedings against Mr O’Boyle was premature, because the issues raised by TBD’s grounds would be investigated at trial. It followed that, as the judge himself said, it was not in the public interest for an application for committal to be brought at that stage. That should have led the judge to conclude that the application should be dismissed. Upon analysis, the only reason given by the judge for not taking that course in [6] was that it would be open to TBD to bring a further application later, and in particular after trial. Counsel submitted that that did not justify the judge’s decision to adjourn the current application, which was for permission to bring committal proceedings before trial. Apart from anything else, the evidence would be bound to change at trial. 238. I accept these submissions. I would add that, after trial, the parties will have the benefit of the judge’s findings. These are likely to be the court’s first port of call when deciding whether or not committal proceedings should be brought against Mr O’Boyle. Accordingly, I would allow Mr O’Boyle’s appeal against Judge Keyser’s decision to adjourn the application.”
“The First Respondent must not, until Trial or further Order of the Court, and save as notified to and agreed by the Board of the Applicant, (whether paid or unpaid) be directly or indirectly engaged or concerned in any capacity in any business other than the Applicant, except that he is not prohibited from: (1) acting as a director or shareholder of the Second Respondent; or (2) holding an investment by way of shares or other securities of any company where such company does not carry on a business similar to or competitive with any business been carried out by the Appany Group Company.”
“1.11 To remove the injunction would mean that D1, as a past and current fiduciary and employee of C, was by order of Griffiths J but no longer is prohibited from competing with C despite the overwhelming evidence of alleged wrongdoing by D1 giving rise to a serious issue to be tried that D1 is in actual and threatened breach of his contractual, tortious, fiduciary and equitable obligations to C as now particularised in the APOC. The American Cyanamid test for the non-competition injunction against D1 was clearly established on the far more limited evidence before Griffiths J. The current evidence of wrongdoing by D1 is far greater than was the case before Foster J or Griffiths J. To release D1 from any injunction backed by penal notice prohibiting competition in these circumstances is unprecedented, unprincipled, against the evidence and would, respectfully, be a clear error of law. It is plainly unjust in all the circumstances of this case and contrary to the overriding objective. It is not known if and indeed when C will be in a position to undertake and conclude a formal disciplinary process into alleged gross misconduct by D1. Such a process will of course take some time. Meanwhile, C is left more vulnerable and unprotected 1.12. The very reason that Griffiths J ordered the non-competition injunction in the first place was to protect C’s legitimate business interests until a speedy trial. In order to have even granted such relief, Griffiths J applying the well-established American Cyanimid principles, had to have been satisfied as a minimum: (1) That there was a serious to be tried as to C’s entitlement to a final noncompetition injunction at trial; (2) That damages would be an inadequate remedy for C; (3) That damages paid under C’s usual cross-undertaking in damages would be an adequate remedy for D1 at trial; (4) If not the latter, then the balance of convenience (i.e., the balance of the risk of doing an injustice) lay in favour of granting the interim injunction. 1.13. There has not been any material change of circumstances warranting departure from that fundamental position. No party has suggested otherwise. Given the greater evidence of unlawful competition against D1 (all the while as an employee and fiduciary), it is reasonable to observe that, now more than ever before, C needs the protection of the non-competition injunction until a trial can determine the serious issues raised in the APOC.” issues raised in the APOC.”
“2. Ds’ case before the court was that C’s undertaking to keep D1 in employment should not be set aside because the relationship of employment between C and D1 was (and is) the legal basis for the injunction set out at §4 of the order of Griffiths J. If the relationship of employment does not continue, the injunction will lack legal basis: see Ds’ first skeleton argument dated 21.9.20, §40(a). Plainly, an injunction which ceases to have legal basis requires to be set aside. It cannot be said that Ds’ position on this point has changed. 3. The discharge of the §4 injunction in its present form is simply the corollary of the discharge of the undertaking, which C itself sought from the court. C had not made an application for an alternative form of injunction, so the issue as to whether (and if so on what terms) one should be granted was not before the court. If C considers that it would be entitled to a more limited form of injunction following its intended summary dismissal of D1 then that is something on which it should follow the ordinary course: it should seek undertakings in correspondence and, if those undertakings are not forthcoming, it should apply. In those circumstances, C’s threat of immediate further litigation and costs consequences for D1 (see §1.9 of C’s second skeleton) is quite inappropriate. 4. If the court orders an alternative form of injunction against D1 which is dependant for its legal basis on the contract of employment between C and D1, then D1 reserves his right to make an application to discharge or modify the injunction if the contract of employment comes to an end, whether by summary dismissal as threatened by C or otherwise.”