Argus Media Ltd v Mr Mounir Halim

JurisdictionEngland & Wales
JudgeMr Justice Freedman
Judgment Date15 January 2019
Neutral Citation[2019] EWHC 42 (QB)
CourtQueen's Bench Division
Docket NumberCase No: HQ18X03224
Date15 January 2019

[2019] EWHC 42 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Freedman

Case No: HQ18X03224

Between:
Argus Media Limited
Claimant
and
Mr Mounir Halim
Defendant

Gavin Mansfield QC and Nicholas Goodfellow (instructed by Locke Lord (UK) LLP) for the Claimant

Naina Patel (instructed by Pennington Manches LLP) for the Defendant

Hearing dates: 12 th December – 21 st December 2018

APPROVED JUDGMENT

Mr Justice Freedman

Introduction

1

This is a speedy trial of the Claimant Argus's claim against the Defendant, Dr Mounir Halim. Dr Halim was employed by Argus from 6 January 2014 until 31 August 2018 as a Business Development Manager (later VP Business Development) in respect of Argus's fertiliser business. Dr Halim resigned on notice on 12 July 2018, and his employment terminated on 31 August 2018.

2

The case of Argus is that Dr Halim formed a price reporting agency (“PRA”) “Afriqom” which competes with its fertiliser business. It is alleged that Dr Halim has been in breach of express and implied terms of his contract of employment (including restrictive covenants contained therein), duties of fidelity/trust and confidence and duties of confidence by preparing to and setting up his new venture ‘Afriqom’, misusing confidential information in doing so and soliciting, dealing and competing in breach of his covenants.

3

At trial, Argus seeks injunctions:

3.1 to enforce the post-termination restrictions (“PTRs”);

3.2 to restrain Dr Halim from misusing its confidential information;

3.3 on a springboard basis, to deprive Dr Halim of an unlawful head-start he is alleged to have obtained prior to termination of employment, and which he continues to develop while acting in breach of his PTRs.

4

Dr Halim denies the allegations. By way of summary only, he says that:

4.1 his business is not in competition with Argus;

4.2 in any event, the PTR's are too wide in scope and duration, so are unenforceable restraints of trade;

4.3 he has not been in breach of confidence and his steps to set up Afriqom during his employment were no more than legitimate preparatory steps;

4.4 he has been discharged from the PTRs due to Argus repudiating his contract of employment due to reading personal emails in his work inbox.

5

Pending trial, Dr Halim has given undertakings, including as to non-solicitation, non-dealing and no misuse pending this trial (as reflected in paragraphs 4–5 of the Order of Mr Justice Andrew Baker dated 21 September 2018 and paragraphs 4–5 of the prior Interim Consent Order dated 18 September 2018). On 27 September 2018, Mr Justice Andrew Baker declined to provide additional non-compete and springboard relief pending trial. Mr Justice Andrew Baker declined to make any such orders, having regard to the availability of springboard relief to the extent that it would emerge that there was an unlawful head-start by the absence of relief at the interim stage.

6

Following Argus's application for a split trial, the parties agreed that this trial would focus on liability and injunctive relief (paragraph 1 of the Order of Mr Justice Pepperall dated 29 November 2018). Argus now seeks final injunctive relief restraining any misuse of confidential information, breach of Dr Halim's restrictive covenants until 15 May 2019 and springboard relief in similar terms but going beyond that duration of the covenants and (i.e. 15 May 2019) together with an additional 3-month period (in its opening, it had sought an additional 3–9 month period). Dr Halim denies liability and says in any event that no injunction is appropriate: if it is, he says that since there has not yet been a trial on quantum, at highest any injunction should be interim only.

7

The Court has heard evidence from seven Argus witnesses (Ms Williamson, Mr Nash, Mr Thompson, Ms Wong, Ms Newbury, Ms Kewish and Mr Thomas), Mr Binks (who is in effect an Argus witness, but technically was called on the basis of a witness summons issued on behalf of Dr Halim) and two witnesses on behalf of Dr Halim (Dr Halim himself and his wife Ms Benadada). There have been skeleton arguments lodged in advance of the trial and at the end of the trial on 21 December 2018. Since the conclusion of submissions, there have been lodged with the Court further submissions from Dr Halim on 31 December 2018 and in response from Argus on 5 January 2018. On 11 January 2018, I sent a draft judgment to Counsel in anticipation of receiving suggested typographical changes and with a view to giving judgment on 14 January 2018. In addition to receiving them, I also received a document of 4 pages from Counsel for Dr Halim. It contained an apology that some of the points might have been picked up on 31 December 2018, because they arose out of points in the written Closing Submission of Argus which were adopted in the draft judgment. I take into account the reluctance which the Court has to revisit points in the draft judgment because the purpose of providing it in draft is to receive a list of typing corrections and any other obvious errors. However, I am conscious that the effect of the speedy trial has been to impose a great burden on the parties and indeed the Court to have this matter adjudicated upon during the currency of the post-termination restraints. In these circumstances, I extended the time for the hand-down by a day, noting that Argus may or may not wish to respond substantively. In the event, subject to protest, Counsel for Argus has addressed the substance of the points raised. I have made some revisions where I considered appropriate to the judgment.

Observations about the witnesses

8

The two principal witnesses in the case in terms of time in the witness box were Ms Williamson and Dr Halim. There was an important background. In about July 2017, Ms Williamson became the Senior Vice President and Global Head of Fertilisers. She became the line manager to Dr Halim in July 2018. Dr Halim had not been asked to apply for that job, and it was thwarting to his ambitions that he was not even asked to apply for this position. He was at about that time given the role of Vice President of Business Development. It did not involve a new contract or a pay rise at that time, and he considered it a form of appeasement rather than promotion. He felt very frustrated by his last period at Argus, particularly having Ms Williamson put into a role which he must have believed that he could have fulfilled. When his proposal for an African fertiliser weekly report was not accepted by Ms Williamson, he believed that his ambitions were not being fulfilled. It may be that he was entitled to feel thwarted by Argus, but the issues which I have to decide, albeit against that important background relate to the activities of Dr Halim thereafter when he conceived of the idea of the Afriqom business and how he brought it into fruition. Against this backdrop, I make some observations about the witnesses.

9

I found Ms Williamson to be very analytical, she expressed herself particularly clearly and generally was an impressive witness. However, her evidence was sometimes reduced in its effectiveness by not giving way even on points of little importance, as if any concession would weaken Argus's case. A flavour of this point is that she insisted that IFDC had been ‘hopeful’ of having an African fertiliser report, but insisted that it was not ‘disappointed’ by the decision not to have one, which seemed to me in context to be a distinction without a difference and one only not conceded because of a belief that it might give some credence to Dr Halim's position. Of greater significance, she did not readily concede any points in paragraph 37(j) of her statement amounted to general know-how rather than confidential information. I take into account in my assessment of the evidence the shortcomings to which I have drawn attention. However, overall, I found her to be a reliable witness.

10

Mr Nash gave evidence as an editor within Argus's editorial department. I found him to be a very knowledgeable witness about the market in which he operated. He is very intelligent, but he was also ready to say when he could not answer a question due to his own lack of knowledge.

11

Mr Thompson is the Chief Strategy and Business Development Officer of Argus. He was sympathetic to Dr Halim's situation in these proceedings, effectively as the little man against a very large corporation. This however made the more forceful the important areas of disagreement between his evidence and that of Dr Halim. His evidence was understated. He was particularly co-operative with the questioner in answering the questions and was ready to give way about matters of which he had no knowledge. His evidence was therefore particularly telling.

12

Mr Binks, CEO of Argus who had played a major role in the development of Argus over decades, gave evidence without the degree of preparation of other witnesses, coming to give evidence without any witness statement having been submitted. His evidence was of a person who is a little detached from the particular issues and details of this case. The fact that there were differences between his evidence and that of Mr Thompson, for example in respect of the context in which Acuity was mentioned, in the end rendered the evidence given by both of them more rather than less plausible.

13

Ms Wong and Ms Newberry gave evidence as specialists in conference production and logistics respectively. Ms Newbury is now a Senior Conference Producer. They were involved in the field specifically of organising conferences which was not central to Dr Halim's sphere of operation, albeit that he did participate in conferences by attending and speaking. Mr Thomas gave evidence from the perspective of the consulting part of the business, showing a significant involvement of Dr Halim, albeit that this was not...

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