Aquinas Education Ltd v (1) Dorian Miller
| Jurisdiction | England & Wales |
| Judge | Nicholas Vineall |
| Judgment Date | 02 March 2018 |
| Neutral Citation | [2018] EWHC 404 (QB) |
| Date | 02 March 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17X04714 |
[2018] EWHC 404 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Vineall QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: HQ17X04714
Adam Tolley QC and Simon Paul (instructed by the Stokoe Partnership) for the Claimant
Ruth Kennedy (instructed by Hollingsworths) for the First and Second Defendants
Stuart Benzie (instructed by Freeths) for the Third and Fourth Defendants
Hearing dates: 26 February 2018
Judgment Approved
Nicholas Vineall QC:
INTRODUCTION
The main issue on this application is whether or not, and if so for how long, the claimant is entitled to a springboard injunction.
The claimant, Aquinas Education Limited, is an educational recruitment agency based in Nottingham which specializes in placing teachers in schools on supply and long term contracts. Aquinas maintains records of teachers who have registered with it, including their contacts details and CVs, and records of schools that take temporary teachers, and the contact details of those at the schools who are responsible for recruiting supply teachers.
The First Defendant Mr. Dorian Miller was first employed by Aquinas in or around 2010 and by December 2017 he was a Senior Consultant. The Second Defendant, Mr Pembleton, was first employed in or around March 2015 and was a Recruitment Consultant. On 13 December 2017 they gave notice to terminate their employment. They told Mr Anderson, who is Aquinas' Managing Director, that they were setting up a new competing business. But that was not the whole story. They now admit that in fact they and the Third Defendant Mr Gatter, who is Mr Pembleton's cousin, had been planning to set up a competing business since about May 2017; that that business was incorporated as Link3 (the Fourth Defendant) on 2 August 2017; that at some stage prior to 29 August 2017 Mr Pembleton had copied to a memory stick information belonging to Aquinas; and that on 19 September 2017 and thereafter they approached teachers identified from Aquinas' records and tried (and in some cases succeeded) to place them with schools on behalf of Link 3.
It is also now admitted that on 29 November 2017 Mr Miller asked Aquinas' provider of IT services to create a list for him. It is important because of the prominence it has had in the formulation of the relief so far sought and obtained. It has been referred to as the Candidate List though this is a slightly misleading name for it. The list which Mr Miller was given has three parts. First there is a list of (simply) email addresses entitled “Approved Candidates Emails”. There are over 1500 teachers' emails. The name of the individual can be inferred from many, but certainly not all, of these email addresses. Then there is another list of email addresses entitled “School emails”. The name of the school concerned can be inferred from almost all of these. There are over 1000 entries. Finally there is a list of mobile phone numbers entitled “Mobile Numbers for Approved Candidates”. It is simply a list of numbers, with no indication of the person to whom the numbers belong.
When Aquinas began to discover what Mr Miller and Mr Pembleton had done, they started these proceedings. In summary, the Statement of Claim alleges that the four defendants are parties to an unlawful scheme pursuant to which they have wrongfully diverted business from Aquinas to Link3, and in so doing Mr Miller and Mr Pembleton have breached express and implied obligations owed to Aquinas.
The express terms of Mr Miller and Mr Pembleton's Contracts.
It is convenient at this stage to set out what are accepted by the parties to be the express terms of Mr Miller's and Mr Pembleton's contracts. So far as relevant the provision is as follows:
10 Confidentiality
10.1 You shall not either during your employment (except in the proper performance of your duties) or at any time after its termination, use for your own purposes (or for any purposes other than those of the Company) or divulge to any person, corporation, company or other organisation whatsoever any confidential information belonging to the Company or to any Subsidiary or relating to its or their affairs or dealings which may come to your knowledge during your employment. This restriction shall cease to apply to any information or knowledge which may come into the public domain after the termination of your employment other than as a result of unauthorised disclosure by you or any third party.
Confidential information shall include (but shall not be limited to) the following
(a) information concerning the services offered or provided by the company or any subsidiary including the names of any persons companies or other organisations to whom such services are provided, their requirements and the terms upon which services are provided to them (save that such information shall not be regarded as confidential once it has been published in any prospectus or other document which is available to members of the public)
(b) the company's marketing strategies …
(f) any information which you have been told is confidential or which you might reasonably expect to be confidential
(g) any information which has been given to the company or any subsidiary in confidence by other persons companies or organisation
10.2 All records documents and other papers (together with any copies or extracts) made or acquired by you in the course of your employment shall be the property of the Company and must be returned to it on the termination of your employment.
Importantly, neither Mr Miller's nor Mr Pembleton's employment contract contained any post-termination restrictive covenant of any sort.
The proceedings so far
Aquinas applied for an injunction. It was listed for 12 January 2018.
That date is significant because it is accepted by the Defendants, for the purposes of this application, that Mr Miller's and Mr Pembleton's notice periods expired on 13 January. That in turn means that at all material times they have been bound either by their contractual duties and/or by the obligations subsequently imposed by injunction.
Shortly before the hearing the Defendants admitted many of the allegations of misconduct then alleged, and stated they would accept the grant of an interim injunction in relation to confidential information and trade secrets, and they offered to pay Aquinas' costs. But Aquinas was seeking a springboard injunction and other relief including delivery up, and so the hearing went ahead.
On 12 January 2018 Picken J made an interim order. Paragraph 2 was in these terms:
2.1 Mr. Miller and Mr. Pembleton will not, until after the return date or further order solicit, seek to procure or accept the business of (whether personally or by Link3) any teachers or schools with whom they have come into contact as a result of their employment with the claimant (as defined in paragraph 2.2 of this order).
2.2 The teachers or schools referred to in paragraph 2.1 of this Order shall be:
2.2.1 [this was a list of 11 teachers who the Defendants admitted having approached already]
2.2.2 Any teachers or candidates identified in the Candidate List
2.2.3 Any teachers or schools identified in the records of confidential information or trade secrets delivered up by the Defendants pursuant to paragraph 5.2 of this Order.
It will be noted that Mr Miller and Mr Pembleton were therefore precluded from doing business with every teacher on the Candidate List, and that that restraint existed even if such a teacher approached them via Link 3, and even if such a teacher had never in fact been registered with Aquinas – all that mattered for the restraint to bite was that their e-mail address appeared on the Candidate List. Similarly, Mr Miller and Pembleton could not place any teacher in any school identified on the Candidate List. I understand (there is no note or transcript of the 12 January hearing) that the order was couched in this way to “hold the ring” pending a more detailed consideration of whether, and if so for how long, a springboard injunction was appropriate.
Paragraph 3 of Picken J's order restrained all the Defendants from using confidential information or trade secrets as defined in Schedule A, until trial or further order. Schedule A said that confidential information and trade secrets included (inter alia) the identities and contact details of teachers who have registered with or approached the Claimant, and the identities of schools to whom the Claimant has supplied teachers, and the contact details of relevant persons within those schools. Paragraph 3 of the Order did not (by virtue of paragraph 4) apply to any information which had come into the public domain (other than as a result of an unauthorised disclosure).
The Order (paragraph 5) required the Defendants to deliver up to the Claimant by 19 January 2018 the Candidate List, and any records of confidential information or trade secrets as defined in Schedule A.
Paragraph 6 ordered the Defendants to permit all their electronic storage media to be accessed by an IT expert who was to recover and erase any confidential information or trade secrets (as defined in Schedule A). Finally, by paragraph 7 the Defendants were to swear an affidavit confirming the extent of confidential information and trade secrets belonging to the Claimants, and the use they had made of it.
On 7 February 2018 the matter came back to Court before Ms Rowena Collins-Rice, sitting as a Deputy High Court Judge. Again I have no note or transcript of what was said. By this time the IT experts had carried out some of their retrieval and deletion exercise, although not all of the retrieved...
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