Bullivant (Roger) Ltd v Ellis

JurisdictionEngland & Wales
Judgment Date23 May 1986
Judgment citation (vLex)[1986] EWCA Civ J0523-2
CourtCourt of Appeal (Civil Division)
Docket Number86/0504
Date23 May 1986
(1) Roger Bullivant Limited
(2) Roger Bullivant (midlands) Limited
(3) Roger Bullivant
Respondents (Plaintiffs)
(1) Michael Frank Ellis
(2) Van-Elle Construction Company Limited
(3) George Gibson
(4) Thomas Brendan O'Connor
Appellants (Defendants)
(5) Axial Building Contractors Limited
(Fifth Defendant)

[1986] EWCA Civ J0523-2


Lord Justice May


Lord Justice Nourse







(Mr. Justice Falconer)

Royal Courts of Justice

MR. LEOLIN PRICE, Q.C. and MR. GRAHAM SHIPLEY (instructed by Messrs Gouldens) appeared on behalf of the Respondents/ Plaintiffs.

MR. JOHN V. FITZGERALD (instructed by Messrs Broadbents) appeared on behalf of the Appellants/First, Second, Third and Fourth Defendants.

The Fifth Defendant did not appear and was not represented.


I will ask Lord Justice Nourse to give the first judgment.


This is an appeal from part of an order made by Mr. Justice Falconer on 6th August 1985 on an interlocutory application in an action between employers and former employees. The employers allege that there have been misuses of confidential information, breaches of contract and infringements of copyright and patents. The learned judge granted three injunctions until trial, but it is against only one of them that the former employees now appeal. Shortly stated, that injunction restrains them from contracting with certain persons whose names appear on a card index removed from the possession of the employers and later recovered on the execution of an Anton Piller order. The question for decision is whether that injunction ought to have been granted at all and, if so, whether it ought to have been granted until trial or only for a more limited period.


The material facts, which in the main I take from the necessarily fuller statement of the learned judge, are as follows. The first plaintiff, Roger Bullivant Limited, is the holding company of the Bullivant group and also trades in its own right. The second plaintiff, Roger Bullivant (Midlands) Limited, is one of its subsidiaries, which trades mainly in the Midlands and East Anglia. The third plaintiff, Mr. Roger Bullivant, was described by the judge as being the moving spirit behind the group. He is also the patentee of the two patents allegedly infringed. The business of the group is that of specialised civil engineering, in particular the underpinning of the foundations of buildings by a process known as mini-piling. It is important to state that the business of the companies in the group is almost invariably referred to them by consulting engineers, local authorities or architects. Much of the work is insurance work. This class of business has expanded since normal household structural insurance policies have been extended to cover such matters as subsidence and heavage or movement of the earth.


The plaintiffs claim to possess a body of confidential information, both technical and commercial, relating to their underpinning business and the techniques which they use. Much of the technical information is covered by the two patents, but the plaintiffs claim that not all the techniques used by them or the calculations involved for underpinning are so covered or are necessarily applicable only to patented techniques. In particular ghey claim that there is a set of calculations relating to techniques and machines used by the group which are sometimes contained in what has been called "the black book". This was first issued some three years ago and has been subsequently updated and amended where appropriate. When first issued Mr. Roger Bullivant decided that in view of the highly confidential nature of a lot of the information which it contained, the black book should only be issued to managing directors of subsidiary companies within the group. The first defendant, Mr. Michael Frank Ellis, was the managing director of the second plaintiff and was therefore issued with a copy of the black book.


As to confidential commercial information, the plaintiffs have a card index system listing consulting engineers, local authorities and architects who have or can refer business to them in the manner already mentioned. It also lists other trade contacts. It was in relation to that card index that the injunction now complained of was made.


The first defendant joined the plaintiffs' group on 4th February 1980 as a contracts engineer. Later he became contracts manager of the second plaintiff. He became managing director of the second plaintiff in the early part of 1984.There is a dispute as to whether he is bound by the standard form of contract between the plaintiffs and the directors of their subsidiaries. It is agreed that Mr. Ellis never signed such an agreement, but the plaintiffs claim that he was supplied with a draft and that he has in reality been employed upon the terms of it. I shall return to those terms later.


On 7th January 1985 Mr. Ellis gave notice of resignation of his managing directorship of the second plaintiff and left its employment on 20th February 1985. The learned judge thought, and I agree with him, that it was fairly clear on the evidence that Mr. Ellis was in fact making plans to enter into competition with the plaintiffs whilst still employed as managing director of the second plaintiff. Mr. Bullivant has said that he was surprised when Mr. Ellis told him that he intended to resign. On the evidence as it stands, I think it likely that Mr. Ellis was not at all candid with Mr. Bullivant and other people within the group about his future intentions. It seems likely that since about November 1984 he had been planning to make extensive and unlawful use of the plaintiffs' property; more specifically of their technical and commercial information.


The second defendant, Van-Elle Construction Co. Limited, is a company which was acquired by Mr. Ellis while he was still employed as managing director of the second plaintiff and it has since become the vehicle for the conduct of the new competing business. The third and fourth defendants, Mr. George Gibson and Mr. Thomas Brendan O'Connor, are both ex-employees of the second plaintiff who worked there at the same time as Mr. Ellis and are now employed by the second defendant. At least one, if not both, of them is a shareholder in and a director of the second defendant. The fifth defendant is another company called Axial Building Contractors Limited, but no interlocutory relief has been sought against it.


At the top of page 8 of the transcript of his judgment Mr. Justice Falconer said this:

"It is quite clear that the first defendant, when he finally left the plaintiff company, took with him a vast number of documents including his copy of the black book and a copy of all the cards of the card index system, to which I have referred, listing the details and addresses of the consultants, the trade consultants to whom the plaintiffs looked for obtaining contracts for their work."


As earlier stated, Mr. Ellis left the employment of the second plaintiff on 20th February 1985.On 24th April of that year the plaintiffs, having obtained information which suggested that Mr. Ellis and the second defendant might be acting in breach of their obligation towards them, sought and obtained from Mr. Justice McCullough an Anton Piller order against those two defendants.(Mr. Gibson and Mr. O'Connor had not been brought into the action at that stage). That order was executed on 25th April, when what the learned judge against described as "a vast quantity of documents belonging to the plaintiffs" was recovered. They included the contents of a red plastic box consisting of about 325 names of consulting engineers, local authorities and architects in card index form and also Mr. Ellis's copy of the black book. They also included 28 large sheets of paper consisting of photocopies of about 248 cards out of the card index.


It is necessary for me to deal with the evidence as to the card index in some detail. It consists mainly of an affidavit of Mrs. J.L. Mansell, who acted as Mrs. Ellis's secretary from about the end of March 1984 onwards, and of the evidence of Mr. Ellis himself. Mrs. Mansell said that in or about November 1984 she asked another secretary employed by the second plaintiff to produce for her a card index system whereby she could have her own records of the consultants and others. At the same time Mr. Ellis discussed the card index system with her and it was agreed that it would be a good idea for him to have a duplicate. Mrs. Mansell then arranged for a second card index to be compiled in exactly the same form as her own. She said that she gave that to Mr. Ellis in or about early December 1984. In or about mid-January 1985, after Mr. Ellis (unknown to Mrs. Mansell) had given in his notice, she observed that his card index, which he normally kept on his desk, was not to be seen. She asked where it was and he informed her that he was having the system updated. However, the secretary who had created the system told Mrs. Mansell that she had not been asked by Mr. Ellis to update his card system.


The evidence of Mr. Ellis about this was to the following effect. He said that while he was in the plaintiffs' employment he often used to work during the evenings and at week-ends and he therefore had at his home a large number of documents relating to the plaintiffs' business.One of those documents was the card index. It is now clear that Mr. Ellis was there referring to the red box which was recovered on the execution of the Anton Piller order and its contents. However, he said...

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