“6. As a consequence of the Defendants' breaches of duty as particularised herein, Rollingsons became insolvent and entered into administration on14 June 2018 .”
“8. The First Defendant, Mr Hollingsworth, bid with FRP Advisory LLP in an attempt to have those rights of action assigned to him. His purpose in so doing was to prevent this claim being issued and determined by the Court.”
“80. It is inferred that, at dates unknown, each of the Defendants (or a sub-set of them) discussed and agreed the Common Design and/or each of the matters pleaded at paragraphs 72-78 and in particular (without limitation) discussed and agreed: a) To seek to achieve the matters set out above at paragraphs 72-78; b) That Mr Gasser and Ms Bhatiani would assist in the recruitment of the employees within the Family Department; c) That Mr Gasser and Ms Wheeler would assist in the recruitment of the employees within the Property Department; and d) That each of the Defendants would conceal such recruitment from Rollingsons.”
“89. It is inferred that during his employment with Rollingsons and/or since taking up employment with Laurus, Mr Gasser misused the Confidential Information referred to above in order to further the Common Design and/or solicit and/or divert the business of Rollingsons to the benefit of Laurus. Without prejudice to the full range of inferences that can properly be drawn from what transpired and/or prior to disclosure herein, the Claimant say that Mr Gasser's misuse of confidential information can be inferred from the facts and matters listed below: a) On16 December 2016 , Mr Gasser emailed to his personal email account, steven_gasser01@hotmail.co.uk, documents entitled TERMS&CONDITIONS.doc and CLIENT01-21.04.2016 CLIENT CARE.doc. Those documents contained Confidential Information relating to the clients of Rollingsons. Mr Gasser had no legitimate reason to email them to his personal email account. b) Mr Gasser took away from Rollingsons’ offices and thereafter kept at his home until17 February 2017 : i. A correspondence folder relating to Mr Sheeraz; ii. Four trial bundles relating to Ms Vandy; iii. A correspondence bundle relating to Valerie Chester; and c) Paragraphs 95 and 97-98 below.”
“It is further inferred that each or any of the Defendants participated in and/or assisted with and/or encouraged Mr Gasser’s and/or Bhatiani's misuse of Confidential Information as particularised above.”
“99. Each of the Defendants knew, at all material times, that in the event that Rollingsons discovered or suspected the recruitment and/or solicitation and diversion of its employees and/or clients and/or the failure to properly bill clients and the amendment to clients’ payment terms and/or the misuse of confidential information and/or the deletion or loss of documents described in these Particulars of Claim, it would take steps to discourage its employees, clients and potential clients from leaving Rollingsons and/or joining Laurus and/or would seek injunctive relief from this Court.”
“i. In the financial year ending31 March 2015 , the fee income of the Property Department was£1,566,223 , and the fee income of the Family Department was£626,388 . ii. In the financial year ending31 March 2016 , the fee income of the Property Department was£1,744,717 , and the fee income of the Family Department was£487,228 .”
“f) Following and in consequence of the Defendants' breaches as aforesaid Rollingsons' revenue and profit declined. In particular: i. In the financial year ending31 March 2017 , Rollingsons' turnover was£3,121,186 and it suffered a loss before tax of£631,492 . During that year the fee income of the Property Department was£1,200,242 and the fee income of the Family Department was£513,957 (the majority of which had been billed and/or earned before the breaches of duty particularised herein). ii. In the financial year ending31 March 2018 , Rollingsons' turnover was approximately£2,862,000 . In that at year the fee income of the Property Department was approximately£574,000 and the fee income of the Family Department was approximately£247,600 . Prior to disclosure and expert evidence herein (including, where necessary, disclosure from third parties) the Claimant is currently unable to calculate the extent of Rollingsons' losses during this period. However, such losses were substantial.”
“65. On19 October 2016 Mr, Gasser introduced Ms, Bhatiani to Mr. Addyman at a meeting which took place in a Public House. Mr. Hollingsworth was also present at that meeting. Mr Gasser, knew that Ms. Bhatiani was unhappy with her current position and suggested the meeting, which she accepted. During the meeting Mr. Addyman set out his background, his ideas for Laurus and confirmed that Mr. Hollingsworth and Mr. Gasser would be directors of the company. Mr. Gasser was only present for part of the meeting. Mr. Addyman also discussed a possible job opportunity for Ms. Bhatiani.”
“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing... the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order”
“The court may give summary judgment against a claimant...on the whole of a claim or on a particular issue if –(a) it considers that –(i) that claimant has no real prospect of succeeding on the claim or issue... and (b) there is no other compelling reason why the case or issue should be disposed of at a trial”
“23. The applicable principles set out in and flowing fromCPR 3.4 and 24 are also extremely well known. The summary by Lewison J in Easyair Ltd v Opal telecom Ltd[2009] EWHC 339 (Ch) at [15] was relied upon by all parties as a convenient summary: “The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 7252 ”. 24. I adopt and will apply those principles in the present case. I would only add that, where a claim is defective and therefore susceptible to be struck out or subject to summary judgment, the Court should consider whether the defect in question might be cured by amendment and, if it might, should consider whether it is right to give the party in default an opportunity to make the defect good: see Hockin and Ors v RBS[2016] EWHC 92 (Ch) per Asplin J. This is another facet of the Royal Brompton Hospital principle that the Court should not merely look at the materials before it but should take account of what can reasonably be expected to be available at trial. I have borne this approach in mind in reaching my conclusions in the present case. Proof of fraud and the approach to striking out allegations of fraud 25. Where, as here, a Claimant wishes to amend to plead fraud and the application is opposed, it is material to bear in mind the approach that the Court routinely takes to proving fraud in civil litigation. A sufficient summary for present purposes is provided by Fiona Trust & Holding Corp v Privalov[2010] EWHC 3199 (Comm) at [1438]-[1439] per Andrew Smith J: It is well established that “cogent evidence is required to justify a finding of fraud or other discreditable conduct”: per Moore-Bick LJ in Jafari-Fini v Skillglass Ltd.,[2007] EWCA Civ 261 at para.73. This principle reflects the court's conventional perception that it is generally not likely that people will engage in such conduct: “where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger”, per Rix LJ in Markel v Higgins,[2009] EWCA 790 at para 50. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow's Will Trusts,[1964] 1 WLR 415 ,455 (cited by Lord Nicholls in In re H,[1996] AC 563 at p.586H), “The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”… …Thus in the Jafari-Fini case at para 49, Carnwath LJ recognised an obvious qualification to the application of the principle, and said, “Unless it is dealing with known fraudsters, the court should start from a strong presumption that the innocent explanation is more likely to be correct.” 26. This summary is consistent with many other decisions of high authority which establish that pleadings of fraud should be subjected to close scrutiny and that it is not possible to infer dishonesty from facts that are equally consistent with honesty: see, for example, Mukhtar v Saleem[2018] EWHC 1729 (QB) ; Elite Property Holdings Ltd v Barclays Bank[2017] EWHC 2030 (QB) ; Three Rivers DC v The Governor and Company of Barclays of England (No 3)[2003] 2 AC 1 at [186] per Lord Millett – see below. 27. One of the features of claims involving fraud or deceit is the prospect that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy. This has routinely been addressed in cases involving allegations that a defendant has engaged in anti-competitive arrangements. In such cases, the Court adopts what is called a generous approach to pleadings. The approach was summarised by Flaux J in Bord Na Mona Horticultural Ltd & Anr v British Polythene Industries Plc[2012] EWHC 3346 (Comm) at [29] ff. Flaux J set out the principles in play as described by Sales J in Nokia Corporation v AU Optronics Corporation[2012] EWHC 731 (Ch) at [62]-[67], which included the existence of a tension between (a) the impulse to ensure that claims are fully and clearly pleaded, and (b) the impulse to ensure that justice is done and a claimant is not prevented by overly strict and demanding rules of pleading from introducing a claim which may prove to be properly made out at trial but may be shut out by the law of limitation if the claimant is to be forced to wait until he has full particulars before launching a claim. Sales J indicated that this tension was to be resolved by “allowing a measure of generosity in favour of a claimant.”
“[31] This generous approach to the pleadings in cartel claims has been endorsed by the Court of Appeal, not only in Cooper Tire & Rubber Company Europe Ltd v Dow Deutschland[2010] EWCA Civ 864 but most recently by Etherton LJ in KME Yorkshire Ltd v Toshiba Carrier UK Ltd[2012] EWCA Civ 1190 at [32]: "As was stated by the Court of Appeal in Cooper Tire & Rubber Company Europe Ltd v Dow Deutschland Inc[2010] EWCA Civ 864 at paragraph [43], however, it is in the nature of anti-competitive arrangements that they are shrouded in secrecy and so it is difficult until after disclosure of documents fairly to assess the strength or otherwise of an allegation that a defendant was a party to, or aware of, the proven anti-competitive conduct of members of the same group of companies. That same generous approach was for the same reason taken by Sales J in Nokia Corporation v AU Optronics Corporation[2012] EWHC 731 in dismissing an application to strike out or to grant summary judgment against the claimant in proceedings for damages for infringement of Article 101. That approach is appropriate in the present case prior to disclosure of documents." [32] In the case of applications for summary judgment, it is well established that the court should not engage in a mini-trial where there is any conflict of evidence. The dangers of too wide a use of the summary judgment procedure were emphasised by Mummery LJ at [4-18] of his judgment in Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical[2006] EWCA Civ 661 . [5] and [18] of that judgment seem to me particularly apposite to the present case: "5. Although the test [whether the claim has a real prospect of success] can be stated simply, its application in practice can be difficult. In my experience there can be more difficulties in applying the "no real prospect of success" test on an application for summary judgment (or on an application for permission to appeal, where a similar test is applicable) than in trying the case in its entirety (or, in the case of an appeal, hearing the substantive appeal). The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials.… 18. In my judgment, the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case." [33] The same point was made by Lewison J (as he then was) in Federal Republic of Nigeria v Santolina Investment Corporation[2007] EWHC 437 (Ch) , at [4(vi)] citing the Doncaster Pharmaceticals case: "Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case."" 28. These are salutary warnings and necessary protections for the Claimants, which I bear in mind. It is, however, to be remembered that the Court’s concern in these passages was in large measure based upon a lack of knowledge on the part of the Claimant before disclosure had been given. In the present case, the Defendants have given disclosure based upon wide-ranging search terms relating to multiple custodians. Although the Claimants submit that the Defendants’ disclosure is not complete, they have not identified any specific omissions or areas of default that would justify the Court in treating the Claimants as if they were still materially excluded from access to relevant disclosure for present purposes. 29. In any event, if a case alleging fraud or deceit (or other intention) rests upon the drawing of inferences about a Defendant’s state of mind from other facts, those other facts must be clearly pleaded and must be such as could support the finding for which the Claimant contends. This is clear from numerous authorities: see Three Rivers District Council v The Governor and Company of Barclays of England (No 3)[2003] 2 AC 1 at [55] per Lord Hope and [186] per Lord Millett. I endorse and adopt the statement of Flaux J in JSC Bank of Moscow v Kekhman[2015] EWHC 3073 (Comm) at [20] that: “The Claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. As Lord Millett put it, there must be some fact “which tilts the balance and justifies an inference of dishonesty.”
“27. It seems to me that the following principles are well established, at least as articulated in relation to summary disposal under Pt 24 of the CPR. (1) The purpose of resolving issues on a summary basis and at an early stage is to save time and costs and courts are encouraged to consider an issue or issues at an early stage which will either resolve or help to resolve the litigation as an important aspect of active case management: see Kent v Griffiths (No. 3)[2001] QB 36 at p. 51B–C. This is particularly so where a decision will put an end to an action. (2) In deciding whether to exercise powers of summary disposal, the court must have regard to the overriding objective. (3) The court should be slow to deal with single issues in cases where there will need to be a full trial on liability involving evidence and cross examination in any event and/or where summary disposal of the single issue may well delay, because of appeals, the ultimate trial of the action. (4) The court should always consider whether the objective of dealing with cases justly is better served by summary disposal of the particular issue or by letting all matters go to trial so that they can be fully investigated and a properly informed decision reached. The authority for principles (2)–(4) is to be found in: Three Rivers District Council v Bank of England (No. 3)[2003] 2 AC 1 per Lord Hope at paras 92–93, considering Swain v Hillman[2001] 1 All ER 91 at pp.94–95; Green v Hancocks (a Firm) [2001] Ll Rep PN 212, per Chadwick LJ at para.53, p.219, col. 1; and Killick v PricewaterhouseCoopers (No. 1) [2001] Ll Rep PN 17 per Neuberger J at p.23, col. 2, 2–27.2”
“8. The First Defendant, Mr Hollingsworth, bid with FRP Advisory LLP in an attempt to have those rights of action assigned to him. His purpose in so doing was to prevent this claim being issued and determined by the Court.”
“8. Paragraph 8 is abusive and should be struck out. The following will be deleted consequent to any such strike out, and no privilege is waived by the inclusion of this information in this document at this stage: i. All correspondence sent by Mr Hollingsworth to the Administrators was written expressly “without prejudice”
“42. The arguments of the Lawyer Defendants raise important issues of principle, namely how without prejudice privilege operates and how and when such privilege can no longer be relied upon. Questions such as whether there is a “collateral fact” exception have been considered recently in decisions of the House of Lords. I have heard detailed argument from all parties, both as a matter of principle and based on a line of authority starting with the decision of the House of Lords in Rush & Tompkins Ltd v GLC[1989] AC 1280 . It is necessary to refer briefly to that sequence of cases in order to evaluate the arguments that I have briefly summarised above. 43. In Rush & Tompkins, a main contractor sued an employer and a subcontractor for a declaration that the employer was liable to reimburse any sums payable to the sub-contractor and for a determination of what sums were payable to the sub-contractor on its loss and expense claim. The main contractor settled with and discontinued its claim against the employer but pursued its claim against the sub-contractor. The latter sought disclosure of the negotiations between the main contractor and the employer leading to the settlement of that claim. The House of Lords held that the without prejudice rule made inadmissible in any subsequent litigation concerned with the same subject-matter proof of any admissions made in an attempt to reach a settlement. Lord Griffiths gave the only reasoned speech. He said at p.1299D-1300G: The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment of Oliver L.J. in Cutts v. Head[1984] Ch. 290 , 306: ‘That the rule rests, at least in part, upon public policy is clear from many authorities, and the convenient starting point of the inquiry is the nature of the underlying policy. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J. in Scott Paper Co. v. Drayton Paper Works Ltd. (1927) 44 R.P.C. 151 , 156, be encouraged fully and frankly to put their cards on the table.... The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability.’ ……… Nearly all the cases in which the scope of the ‘without prejudice’ rule has been considered concern the admissibility of evidence at trial after negotiations have failed. In such circumstances no question of discovery arises because the parties are well aware of what passed between them in the negotiations. These cases show that the rule is not absolute and resort may be had to the ‘without prejudice’ material for a variety of reasons when the justice of the case requires it. It is unnecessary to make any deep examination of these authorities to resolve the present appeal but they all illustrate the underlying purpose of the rule which is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement. Thus the ‘without prejudice’ material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement, which is the point that Lindley L.J. was making in Walker v. Wilsher (1889) 23 Q.B.D. 335 and which was applied in Tomlin v. Standard Telephones & Cables Ltd. [1969] 1 W.L.R. 1378 .The court will not permit the phrase to be used to exclude an act of bankruptcy: see In re Daintrey, Ex parte Holt [1893] 2 Q.B. 116 nor to suppress a threat if an offer is not accepted: see Kitcat v. Sharp (1882) 48 L.T.64. In certain circumstances the ‘without prejudice’ correspondence may be looked at to determine a question of costs after judgment has been given: see Cutts v Head[1984] Ch. 290 .There is also authority for the proposition that the admission of an ‘independent fact’ in no way connected with the merits of the cause is admissible even if made in the course of negotiations for a settlement. Thus an admission that a document was in the handwriting of one of the parties was received in evidence in Waldridge v. Kennison (1794) 1 Esp. 142 . I regard this as an exceptional case and it should not be allowed to whittle down the protection given to the parties to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts. If the compromise fails the admission of the facts made for the purpose of the compromise should not be held against the maker of the admission and should therefore not be received in evidence.” 44. The effect was therefore that negotiations attempting to compromise a claim in the proceedings were immune from disclosure in the same proceedings, even when a settlement with one of the defendants had resulted. The reason was that public policy required parties to be able to attempt to settle without fear of any concessions made being subsequently used against them. 45. Although Lord Griffiths referred to the rule that excluded all negotiations aimed at settlement from being given in evidence, the rationale of the rule was explained by reference to admissions against interest. His Lordship was nevertheless willing to accept in principle only a very narrow exception relating to proof of “independent facts” in no way connected with the merits of the cause, i.e. facts unconnected to the substance of the dispute that was being negotiated. 52. There has also been judicial disagreement with the basis for the decision preferred by Swinton Thomas and Leggatt LJJ. The privilege conferred by the without prejudice rule cannot be waived unilaterally by one party only to the negotiations, in the way that the sole owner of legal professional privilege can waive the privilege. There was no suggestion in Muller that the shareholders had expressly or impliedly agreed to give up their privilege. Accordingly, waiver, in its true sense – voluntarily giving up privilege that exists and is protected by the without prejudice rule – could not have arisen: see per Lewison LJ in Avonwick v Webinvest Ltd[2014] EWCA Civ 1436 at [21] and per Newey J in EMW Law LLP v Halborg[2017] EWHC 1014 (Ch) ; [2017] 3 Costs LO 281 at [62]. It is however clear that both Swinton Thomas and Leggatt LJJ considered it material to their decision that the plaintiff had raised an issue on which the court could not adjudicate unless the negotiations were disclosed. 59. The without prejudice rule was considered further by the House of Lords in Ofulue v Bossert[2009] UKHL 16 ;[2009] 1 AC 990 . The issue in that case was whether an offer to buy real property, made in without prejudice negotiations in a first set of possession proceedings, was admissible as an acknowledgment of title in subsequent proceedings between the same parties. The Court of Appeal had held that the offer was inadmissible and the House of Lords by a majority dismissed the appeal. It held that there was no principle of law limiting the without prejudice rule to identifiable admissions. Much of the speeches is concerned with the particular nature of an acknowledgment for the purposes of theLimitation Act 1980 and the relationship between an acknowledgment and an admission, however their Lordships made a number of more general observations about the function of the without prejudice rule and the ambit of the exceptions to it. 60. Lord Hope said: “Sometimes letters get headed ‘without privilege’ in the most absurd circumstances, as Ormrod J observed in Tomlin v Standard Telephones & Cables Ltd[1969] 1 WLR 1378 , 1384. But where the letters are not headed ‘without prejudice’ unnecessarily or meaninglessly, as he went on to say at p 1385, the court should be very slow to lift the umbrella unless the case for doing so is absolutely plain. The principle which the court should follow was that expressed by Romilly MR in Jones v Foxall (1852) 15 Beav 388, 396. If converting offers of compromise into admissions of acts prejudicial to the person making them were to be permitted no attempt to compromise a dispute could ever be made. The basis for the rule has been explained more fully by Oliver LJ in Cutts v Head[1984] Ch 290 , Lord Griffiths in Rush & Tomkins Ltd v Greater London Council[1989] AC 1280 and Robert Walker LJ in Unilever plc v The Procter & Gamble Co[2000] 1 WLR 2436 . With the benefit of those explanations it may be re-stated in these terms. Where a letter is written ‘without prejudice’ during negotiations with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is a good reason for not doing so. I think that the public policy basis for not allowing anything said in the letter to be used later to her prejudice provides Ms Bossert with all she needs to defeat the argument that the implied admission that it contains can be used as an acknowledgement against her in these proceedings. The essence of it lies in the nature of the protection that is given to parties when they are attempting to negotiate a compromise. It is the ability to speak freely that indicates where the limits of the rule should lie. Far from being mechanistic, the rule is generous in its application. It recognises that unseen dangers may lurk behind things said or written during this period, and it removes the inhibiting effect that this may have in the interests of promoting attempts to achieve a settlement. It is not to be defeated by other considerations of public policy which may emerge later, such as those suggested in this case, that would deny them that protection.” 64. Accordingly, the decision in Ofulue v Bossert offers no support for the proposition that there is a general exception to the without prejudice rule where a without prejudice statement is being relied on to prove something other than the truth of the statement made or something unconnected to the issues in the case. On the contrary, the general tenor of the speeches is that exceptions to the rule should be strictly limited, in order to uphold the policy underlying the rule. It is clear that when leaving open the question of whether a statement “in no way connected” with the issues in the case might be admissible, Lord Neuberger is referring to the very limited exception identified by Lord Griffiths, namely that in certain cases “an ‘independent fact’ in no way connected with the merits of the cause” is admissible: see the expression “wholly unconnected with the issues between the parties to the proceedings” in para [91] of Lord Neuberger’s speech. That is clearly not to be equated with proof of a statement that did relate to the issues between the parties but which is being relied upon to prove a fact other than the truth or falsity of the statement. (1) Waiver 77. The first question is waiver of “privilege” (or the benefit of the without prejudice rule). So far as this is concerned, it is important to note that waiver of without prejudice “privilege” cannot be partial or limited: Somatra Limited v Sinclair Roche & Temperley[2000] 2 Lloyd’s Rep 673 . If Aon is taken to have waived its privilege, the whole of the without prejudice communications with the Claimants become admissible in evidence (since the Claimants have expressly waived their privilege), not only to prove whether Aon was involved in discussions about the settlement with the representative beneficiaries but to prove any relevant fact. Thus, any express or implied admissions made by Aon would be admissible and the court could not redact documents to limit the material put in evidence at trial. 78. It is for that reason that an implied waiver of the privilege attaching to without prejudice negotiations is not lightly inferred: see Sang Kook Suh v Mace (UK) Ltd[2016] EWCA Civ 4 . In that case, a landlord had sought to deploy without prejudice material in correspondence before trial and the tenant engaged in debate about the substance of the without prejudice negotiations and admissions that had been made in them. Vos LJ refused to make comparison with the issue of waiver of legal professional privilege or waiver of the right to forfeit and held that: “…the issue of waiver in the circumstances of this case requires an objective evaluation of the tenants’ conduct, in the context of the purpose of the without prejudice privilege. That evaluation should be aimed at determining whether it would be unjust, in the light of the tenants’ conduct, for them to argue that the admissions made in the interviews were privileged from production to the court at the trial.”
“The essential point in a case like the present case is, in my judgment, that it would be unjust to allow one party to deploy the material for its benefit on the merits in one part of the litigation without allowing the other to do so too in another.”
“The solution may well lie in the fact that, in a three-party situation such as that at issue in Muller – where the person seeking to use the without prejudice communications was not a party to the negotiations so that the implied contract basis for the protection could not apply – the public policy basis will not necessarily require the consent of both parties to the negotiations before the communications can be examined. If one party to the negotiations has chosen to put in issue against a third party an aspect of his own conduct in those negotiations, he can hardly at the same time rely upon the confidentiality of those negotiations. The interests of the other party to the negotiations can if necessary be protected in other ways, for example by redaction; and the fact that the use of the documents might involve a breach of an implied contract is unlikely to be determinative. If necessary, therefore, I would take the view that Muller can be supported by reference to the waiver rationale …”
“there is no privilege over the fact that such communications have occurred, rather the privilege is limited to the contents of such communications”
“23-01 In order to understand the principles of waiver of privilege, it is necessary to understand the distinction between loss of confidentiality and loss of privilege. It is a precondition of a claim to privilege that the documents in question are confidential. If particular documents are no longer confidential, then privilege cannot be claimed. Not all confidential documents are privileged but all privileged documents are confidential. If a document enters the public domain, it ceases to be confidential and no claim for privilege can be maintained. But otherwise, the question always arises in issues of confidentiality: confidential between whom? If A is entitled to, or is given, access to privileged documents of B, it may be said that there is no confidentiality between A and B so that no claim for privilege could be maintained by B against him documents. But so long as the document remains a confidential document, it would still be possible for the client to claim privilege against others. Footnotes 1 See City of Gotha v Sothebys [1998] 1 W.L.R. 114 CA; see also Franchi v Franchi [1967] R.P.C. 152 at 153; Prudential Assurance v Fountain Page [1991] 1 W.L.R. 756 at 770; CC Bottlers v Lion Nathan Ltd [1993] 2 N.Z.L.R. 445.”
“The third example, which is perhaps the most pertinent, is the situation which arises from without prejudice communications. Here again the rationale is similar. It is the policy of the law to permit, and indeed encourage, confidential negotiations to take place to further the settlement of disputes and the law accordingly recognises that there shall be a restriction upon the use that can be made by the recipient of any such communication. The recent decision of the House of Lords in Rush & Tompkins Ltd. v. Greater London Council [1989] A.C. 1280 establishes the wide ambit of the restriction that arises from communications being without prejudice. The restriction affects not only the party who received the communication but also any other party and the principle "once privileged always privileged" will apply to subsequent litigation as well as the actual litigation in relation to which the without prejudice communication was made. The rule is described in the Rush & Tompkins case as one of the admissibility of evidence but this, as the decision in that case demonstrates, does not cover the full scope of the rule. Also, the without prejudice communication is, ex hypothesi, a communication which, were it not privileged, would be admissible in evidence; typically it will be an admission against the interest of the party making it. It would be admissible and relevant evidence were it not for the fact that there is a restriction upon the use that the recipient of the communication, or any other person, can make of that piece of evidence. The restriction includes the embargo upon putting it in evidence. The scope of the rule is wider because it includes a right not to reveal the communications to others, which was the actual point of decision in the Rush & Tompkins case; they set aside an order that had been made by the Court of Appeal that discovery of the documents should be given to other parties in the action. The without prejudice principle is normally referred to as a head of privilege. However, as between the parties to a without prejudice communication, it is privilege in a rather different sense from that which is normally used when talking about discovery—hence the use of the word "admissibility" in the Rush & Tompkins case. In Webster v. James Chapman & Co. [1989] 3 All E.R. 939, Scott J. considered the relationship of confidentiality and privilege. In the course of his judgment he said, at pp. 943-944: "1 think it is important to notice the different principles on which protection of confidential documents on the one hand and privileged documents on the other hand are based. Once a privileged document or a copy of a privileged document passes into the hands of some other party to the action, prima facie the benefit of the privilege is lost: the party who has obtained the document has in his hands evidence which, pursuant to the principle in Calcraft v. Guest [1898] 1 Q.B. 759, can be used at the trial. But it will almost invariably be the case that the privileged document will also be a confidential document and, as such, eligible for protection against unauthorised disclosure or use. The reverse is not true. There are a variety of types of confidential information which have nothing whatever to do with legal privilege; but I cannot envisage a case of legal privilege attaching to documents which did not contain confidential material." Scott J. is referring to the privilege against being required to disclose a document. Accordingly once the document has passed into the possessionof another the privilege lacks subject matter. But where one is dealing A with a privilege which can be treated as analogous to the privilege that attaches to without prejudice communications then it can be seen that the fact that relevant material has been disclosed to another party is not the moment at which the right ceases to exist but is the moment at which it comes into existence. If the analogy is apt the communication of a witness statement or a report to another party, although it may be the moment at which the waiver of the privilege against disclosureoccurs, may be the moment when a right to restrict the use that can be made of the document arises.”
“80. It is inferred that, at dates unknown, each of the Defendants (or a subset of them) discussed and agreed the Common Design and/or each of the matters pleaded at paragraphs 72-78 and in particular (without limitation) discussed and agreed: a) To seek to achieve the matters set out above at paragraphs 72-78; b) That Mr Gasser and Ms Bhatiani would assist in the recruitment of the employees within the Family Department; c) That Mr Gasser and Ms Wheeler would assist in the recruitment of the employees within the Property Department; and d) That each of the Defendants would conceal such recruitment from Rollingsons.”
“The Claimant's case is adequately pleaded. The Claimant relies upon all of the facts and matters alleged in Section IV of the Amended Particulars of Claim. For the reasons set out at paragraph 57, the Claimant is unable to provide further particulars prior to disclosure and the provision of further information.”
“The inferences asserted at paragraphs 80-82 are wrong and baseless. It is improper to plead a case of unlawful conspiracy to cause economic loss without any factual basis at all. Without prejudice to the aforesaid, there was no conspiracy or Common Design to conduct the alleged team move.”
“The denials at paragraphs 67-69, and the assertions that the Claimant's claims are improper, are unsustainable in light of the admissions made in the Defence and in the Defence of the Third Defendant.”
“On19 October 2016 Mr, Gasser introduced Ms, Bhatiani to Mr. Addyman at a meeting which took place in a Public House. Mr. Hollingsworth was also present at that meeting. Mr Gasser, knew that Ms. Bhatiani was unhappy with her current position and suggested the meeting, which she accepted. During the meeting Mr. Addyman set out his background, his ideas for Laurus and confirmed that Mr. Hollingsworth and Mr. Gasser would be directors of the company. Mr. Gasser was only present for part of the meeting. Mr. Addyman also discussed a possible job opportunity for Ms. Bhatiani.”
“You also told me that if I stayed with Rollingsons I would have my work done by a junior member of the remaining team”.Mr Gasser informed Ms Parry that Rollingsons would be forced to use a junior solicitor to carry out work for her, as he well knew that he had solicited all of the senior solicitors within the Family Department; l) The content of an email (set out in full below at paragraph 85 below) which was sent on behalf of Ms Wheeler to various of her clients, which expressly stated that she “will be leaving Rollingsons at the end of March along with a few colleagues to the same firm, so they are not ‘over the moon’ about the exodus” m) The lies told by the Defendants to Mr Rollingson as to their future intentions as set out more fully below at paragraphs 103-107; n) The steps taken by the Claimants to conceal their unlawful actions; and o) Ms Wheeler’s repeated refusal to answer Mr Rollingson’s questions as to whether she had co-ordinated her resignation with other employees.”
“92. It is further inferred that each or any of the Defendants participated in and/or assisted with and/or encouraged Mr Gasser’s and/or Bhatiani's misuse of Confidential Information as particularised above.”
“Request 58. Please provide full particulars of the allegation(s) including, without limitation, which of the defendants is alleged to have so "participated and/or assisted and/or encouraged" and in the case of each such defendant, how, when and in what circumstances. Response… The allegation is pleaded against each defendant to the claim. In support of the inference pleaded, the Claimant relies upon all of the matters listed in Section IV of the Amended Particulars of Claim and the admissions made by the Defendants as summarised in paragraph 3(a)-(e) of the Reply and the admissions made at paragraph 65 of the Defence of the Third Defendant. For the reasons set out in paragraph 57, the Claimant is unable to provide further particulars prior to disclosure and the provision of further information.”
“77. The assertion at paragraph 92 that Mr Rollingson infers that “each or any of the Defendants” encouraged the alleged misuse of the Confidential Information is so vague and unparticularised as to amount to an abuse. In any event, and without prejudice to the above, the same is denied.”
“,.. the Defence: a) admits that Mr Hollingsworth provided Mr Addyman with a spreadsheet containing management information relating to the running of the Property Department which disclosed the source of work and average fees of the Property Department's clients; b) admits that Mr Addyman used that information for Laurus' purpose and benefit, in particular in assessing the prospect of Laurus employing Mr Hollingsworth; c) admits that, whilst an employee of Rollingsons, Mr Gasser took steps to recruit at least one of Rollingsons' employees on Laurus' behalf (that employee being Ms Charlotte Coyle); d) admits that, whilst an employee of Rollingsons, Mr Gasser solicited Rollingsons' clients on Laurus' behalf; e) admits that Mr Gasser provided client files relating to Rollingsons' clients to Laurus;”
“99. Each of the Defendants knew, at all material times, that in the event that Rollingsons discovered or suspected the recruitment and/or solicitation and diversion of its employees and/or clients and/or the failure to properly bill clients and the amendment to clients’ payment terms and/or the misuse of confidential information and/or the deletion or loss of documents described in these Particulars of Claim, it would take steps to discourage its employees, clients and potential clients from leaving Rollingsons and/or joining Laurus and/or would seek injunctive relief from this Court.”
“78. In respect of each of the defendants, please provide full particulars of the factual basis for the allegation as to the state of mind of each such defendant. Response… The matters alleged at paragraph 99 would have been obvious to each Individual Defendant as a matter of common sense and commercial reality and in light of their respective roles within Rollingsons; their knowledge of Rollingsons' business and their knowledge of the steps taken by Rollingsons to prevent its former employees soliciting its clients and/or staff in breach of their legal duties, including in particular: 1. securing injunctive relief to prevent the same in respect of Christina Pieri, a solicitor formerly employed in Rollingsons' Family Department, and; 2. instructing solicitors to write to Darren Mendel, a former director of Rollingsons and head of its Defendant Personal Injury Department, threatening an application for injunctive relief in order to prevent his solicitation of Rollingsons' clients and staff.”
“84. As to paragraph 99, it is improper to make such unparticularised allegations. In any event, the allegations made at paragraph 97 are wrong and denied. Further, it is denied that any of the Defendants knew that Rollingsons would seek injunctive relief as alleged, and noted that at no point did Rollingsons ever do so.”
“6. As a consequence of the Defendants' breaches of duty as particularised herein, Rollingsons became insolvent and entered into administration on14 June 2018 .”
“i. In the financial year ending31 March 2015 , the fee income of the Property Department was£1,566,223 , and the fee income of the Family Department was£626,388 . ii. In the financial year ending31 March 2016 , the fee income of the Property Department was£1,744,717 , and the fee income of the Family Department was£487,228 .”
“Request 4. Please set out each and every factual basis on which it is to be maintained, for each alleged breach and for each Defendant separately, how it is to be alleged that any breach caused Rollingsons to enter administration on14 June 2018 . Response… This request serves no purpose. Paragraph 6 does not purport to particularise any breach of duty: it summarises the nub of the Claimant's case, and expressly provides that the allegations in support of that case are particularised within the Amended Particulars of Claim. As set out at paragraph 57, the Claimant is unable to set out each and every factual basis on which his claim is made prior to disclosure and/or the provision of further information owing to the surreptitious nature of the breaches of duty committed by each defendant to the claim.” “84. Please provide full particulars of the basis on which the Claimant alleges that the decline in Rollingsons' financial performance in the years ending1 March 2017 and/or31 March 2018 was "in consequence of" the actions of the Defendants, specifying which actions of which Defendants is relied upon for any given "consequence". Response The Claimant's case is adequately pleaded. As a consequence of the Common Design and the Defendants' actions pursuant to the same Rollingsons lost two of its most profitable departments to a competitor at a time when it was facing short term (and, but for the Defendants' breaches of duty, remediable) financial difficulty. The level of particularity sought by the Defendants is not necessary to enable them or the Court to understand the Claimant's case.”