AON Ltd v JCT Reinsurance Brokers Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MACKAY |
| Judgment Date | 07 October 2009 |
| Neutral Citation | [2009] EWHC 3448 (QB) |
| Docket Number | HCO9X04015 |
| Court | Queen's Bench Division |
| Date | 07 October 2009 |
[2009] EWHC 3448 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mr Justice Mackay
HCO9X04015
MR McGREGOR QC and MR S FORSHAW appeared on behalf of the Claimant.
MR P GOULDING QC and MR P NICHOLLS appeared on behalf of the First and Second Defendants.
MR A HOCHHAUSER QC and MR D CRAIG appeared on behalf of the Third to Fifth Defendants.
APPROVED JUDGMENT
Crown Copyright ©
: The claimant Aon Limited is an insurance broking company involved, among other things, in insuring aviation risks with a presence in London, Hong Kong and Taiwan. It is one of four major players in this market, together with the first defendant JLT and the companies known for shorthand reasons as Willis and Marsh. It is a very competitive field. The claimant's case is that JLT has carried out what is commonly called a “team poaching” exercise and has procured the resignations of 16 of the claimant's staff, all experienced and all valued with established contact with clients and confidential information which belongs to the claimant. These have all resigned from the claimant's employ and moved to JLT on various dates in May to August of this year, the bulk of them in the month of July. The claimant's case is that this is concerted action and is the result of JLT procuring the services of these staff in breach of their contacts of employment.
The second defendant, Alan Griffin, had worked for the claimant Aon and its predecessor companies for 30 plus years. He resigned in June 2004, was compelled to serve a period of a year's garden leave, and then joined JLT, of which company he is now the chairman and chief executive officer. He is said to have procured these resignations and to have sought to access confidential information belonging to the claimant.
The third defendant, Jonathan Palmer-Brown, is a very senior long-serving director and employee of the claimant, though at the relevant time he was on a part-time contract working two days a week. He was deputy chairman and a director of the company, but resigned as a director on 9 th July 2008. His contract required him to give 12 months' notice, which seems to have been a common stipulation in the cases of senior employees in this field. He is currently, therefore, still employed on garden leave. He went through a form of exit interview (as they are called) on 20 th July, where he claimed to be acting on his own in forming the decision to leave and join JLT and to have no knowledge of any concerted approach to others by that company. Among other evidence put against him are two particular incidents said to be examples of conduct capable of supporting an adverse inference that his preparations to leave were in fact formed much earlier than this. A list of contacts was sent to his home at his request in April and he changed the number of his personal telephone to the number of his business telephone. He admits factually that these things happened, but puts forward an explanation which, if accepted, is consistent with innocence, and those will be two of the matters for a trial in this case.
The fourth defendant, William Smith, never was a director of the claimant but was a senior man variously described as “team leader”, or in an organisation chart that I have seen as the person responsible for “airline client relationships”. He had a 12 months' notice period in his contract. At his exit interview in July he is said to have lied by saying he had not spoken to anyone else about joining JLT and was not aware that others were contemplating departure. The claimant's case is that they have evidence refuting this and evidence of his actions from May onwards encouraging others to join.
The fifth defendant, Alan May, is said to have been head of claims and in a senior position, though there is something of an issue as to his precise position and his duties. He too was never a director. He too has a 12 months' notice requirement in his contract and is now, like the third and fourth defendants, on garden leave. He was seen on 17 th August to be copying a list of his contacts. He admits that he did this, but gives an explanation for that which, if accepted, would be consistent with evidence and will feature at any trial of this case.
Not among the present defendants is Martin Trumper, a Hong Kong based employee whose contract was subject to Hong Kong law, and there are parallel proceedings in that jurisdiction against him.
On 7 th September 2009, having taken some weeks to prepare their case, the claimants made a without notice application to Keith J to obtain relief against what had happened. He held, having heard what the claimants had to say and having seen the evidence they put before him, that the claimant had shown it had a good arguable case for advancing these propositions. First, that the directors' fiduciary duty to the company included a duty to inform the company of any determined attempt from outside to poach staff, and arguably that senior employees were under a duty of trust and confidence which imposed a duty similar to that on directors to alert their employers to such attempts and of their own intentions to join such moves. And, he said, there was a good arguable case on the material before him that the defendants may have gone “over the line”, as he put it. He held that there was a good case to say that the second and fourth defendants had been in contact about these matters and that there was some evidence, though not all that strong, that the third and fifth defendants may have intended to make use of their list of contacts. His order, made to a return date of 17 th September, provided in outline for the following relief: (a) a preservation of evidence; (b) the third to fifth defendants to comply with their contractual fiduciary duties; (c) the first and second defendants to refrain from procuring or inducing breaches of such duties; (d) the prevention of misuse or disclosure of the claimant's confidential information; (e) the delivery up of documents and electronic communication devices by cloning by the second, third, fourth and fifth defendants; and (f) disclosure by affidavit by all five defendants on or before 22 nd September – that date being deliberately put after the return date so as to permit the matter to be argued by the defendants on that return date. There was also a claim for what is commonly called “springboard relief”. Keith J was not inclined to grant that on a without notice application.
So the return date came and the matter was heard on 17 th and 18 th September by Underhill J, who heard extended argument. The defendants told him, as it seems, that the substantial pre-trial issues were these: their intention to apply to discharge the disclosure provision in its entirety and, secondly, the modification of the wording of the definitions in the order which occupy several pages of the order and are quite involved. The upshot of that hearing was that the time for compliance with the disclosure order was further extended to 9 th October and the other issues were adjourned to a special appointment on 2 nd and 5 th October, which is the hearing I have been engaged on. So within a month such is the heat and intensity behind this litigation. There have been five days of hearings before three different High Court judges and really we have hardly started.
The claimants' original skeleton (called “confidential skeleton”) conveniently set out at pages 15 to 30 a large number of instances of behaviour said to evidence the breaches of duty by the defendants, communications between them in pursuit of a common aim, suspicious behaviour, and the like. That was summarising the witness statements that had been put before Keith J. Since the appearance before Underhill J the delivery up part of the order has now been complied with and, say the claimants, that discloses yet further evidence supporting and confirming their original allegations in these respects, and that can be conveniently seen summarised in the claimants' skeleton argument for this hearing and is to be found on pages 11 to 16.
So at the hearing before me there were initially two main areas of dispute. First, the order for disclosure – paragraph 9 of the original order, paragraph 5 of the new proposed order. The defendants say it should be discharged in its entirety and should not revive. The claimant argues for it to continue to trial, albeit in a slightly modified form. Secondly, the wording of parts of the order defining terms used through the order. This is largely now agreed and I shall put it to one side for the moment.
I should start by setting out, albeit it is rather lengthy, the disputed disclosure order sought. It is paragraph 5 of the new proposed order. There is a subparagraph (a) which is not controversial. The rest of the order reads as follows:
“5. The respondents (in and in the case of the first respondent by a duly authorised officer thereof) shall make and serve upon the claimant's solicitors on or before…affidavits:…
(b) giving such full particulars as lie within their knowledge of the recruitment or attempted recruitment by the first or second respondents or any relevant entity of any relevant employee, where the planning of or preparations for or the taking of any step in the recruitment or attempted recruitment is known to the third respondent, fourth respondent and/or fifth respondent prior to the resignation of the employee in question or, in the case of an...
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