Camberley Group Plc v Paul Foster
| Jurisdiction | England & Wales |
| Judge | John Kimbell |
| Judgment Date | 08 February 2023 |
| Neutral Citation | [2023] EWHC 248 (KB) |
| Docket Number | Case No: QB/2021/000899 |
| Court | King's Bench Division |
[2023] EWHC 248 (KB)
John Kimbell KC
(sitting as a Deputy High Court Judge)
Case No: QB/2021/000899
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Stephens (instructed by Laytons LLP) for the Claimants
James Wibberley (instructed by Blake Morgan) for the First Defendant
The Second and Third Defendants were not represented
APPROVED JUDGMENT ON COSTS FOLLOWING WRITTEN SUBMISSIONS
This judgment was handed down remotely by circulation to the parties' representatives by email and will be released for publication on the National Archives caselaw website. The date and time for hand-down is deemed to be 10.30am on 8 February 2023
John Kimbell KC sitting as a Deputy High Court Judge:
Introduction
Following the handing down of my judgment [2022] EWHC 2643 on 25 October 2022 (‘ the Judgment’), the parties have exchanged written submission on in relation to costs. The first round of written submissions from all parties were received on 9 November 2022 and the second round of responsive submissions were received on 16 November 2022. All the submissions were helpfully concise and well structured.
As set out more fully described in paragraphs 1 – 42 in the Judgment these proceedings concerned a dispute between a family-owned group of companies (‘ the Camberley Group’) and three former employees of companies in the group. The claims, which are summarised in the table below, included: breach of fiduciary duty, breach of contract, unlawful interference with contractual relations, misappropriation of funds and unjust enrichment. The First and Third Defendants denied all liability. The Second Defendant has made some limited admissions but denied for liability most of the claims advanced.
The table below shows the original pleaded claims against the Defendants and the sums awarded:
| Claim No. | Nature of Claim | Def. | Amount claimed | Nature of Damages Claimed | Sum Awarded |
| 1 | Breach of warranty | D1 | £101,049 | Return of settlement sum | £97,449 (C1) |
| 2 | Breach of warranty | D1 | £29,164 1 | Misappropriated funds | £20,050 (C1) + £9,214 (C2) |
| 3 | Wrongful inducement of breach of contract / conspiracy | D1 | £24,274 | Loss of Management Time | 0 |
| 4 | Wrongful inducement of breach of contract / conspiracy | D1 | £79,638 | Cost of investigation consultants | 0 |
| 5 | Wrongful inducement of breach of contract / conspiracy | D1 | £80.920 | Loss of future business with CJ Carter | 0 |
| TOTAL CLAIMS AGAINST D1 ALONE | £261,607 | £126,713 | |||
| 6 | Breach of contract / conspiracy | D2 | £80.920 | Loss of future business with CJ Carter | 0 |
| 7 | Breach of contract / conspiracy | D2 | £79,305 | Cost of investigation consultants | £4,500 (Cyfor) |
| 8 | Breach of contract / Conspiracy | D2 | £31,882 | Loss of Management Time | 0 |
| 9 | Breach of contract conspiracy | D2 | £2000 | Securing IT system | £ 2000 (C3) |
| 10 | Unjust enrichment / deceit | D2 | £5,108 | Dishonest expenses claims | 0 |
| TOTAL CLAIMS AGINST D2 (without involvement of D3) | £199,215 | £6,500 (C3) | |||
| 11 | Unjust enrichment claim / deceit | D2 and D3 | £25–50k | Overpaid wages | £15,486 |
| TOTAL CLAIMS AGAINST D2 + D3 | £25–50K | £15,486 |
Claims 1 and 2 in the above table were very closely related in terms of the evidence on which they were based. They are referred to by the parties and in the judgment collectively as “The Warranty Claim” (Judgment para. 30). This claim had three aspects and concerned D1 alone. What was alleged was that:
a. Mr Foster had submitted false invoices for work done and/or items supplied in relation to his home in the total sum of £29,000 which were paid by C1/C2.
b. These false claims constituted “circumstances of which he is aware or ought reasonably to be aware which would amount to a material breach of the terms and conditions of employment which would justify summary dismissal”. These were the words in a warranty given by Mr Foster in a settlement agreement with C1 when he left his employment with the Camberley Group.
c. As a matter of law if (a) and (b), were proved, there is a claim for the repayment of the £119,000 which C1 had paid D1 under the settlement agreement.
Mr Foster lost on all three aspects of the Warranty Claim. In the Judgment (paras. 72 – 112) I rejected all the ways in which he said that he was either specifically or generally authorised by Mr Griffiths (as the chairman of C1 and the majority shareholder) to present the false invoices and have them paid by C1 or C2.
Claims 2 – 9 in the table above were referred to in the Judgment as the “The Damages Claim”. This claim was advanced against both D1 and D2. The factual core was an alleged conspiracy between Mr Foster and Mr Pilling to cause damage to C3 by setting up a rival business and trying to lure away virtually all of C3's customers. The claim was put on a different legal basis against Mr Foster and Mr Pilling because the relevant events took place after Mr Foster had left his employment with the group but while Mr Pilling remained an employee. The claim was therefore framed in tort against Mr Foster (as a claim for unlawful interference with the contractual relations between Mr Pilling and C3) whereas the claim against Mr Pilling was for simple breach of the implied term of loyalty and fidelity in his contract of employment.
Mr Foster and Mr Pilling both denied that there was any such conspiracy to set up a company and lure away C3's customers. They alleged their discussions about going into business together were nothing more than pipedreams. They both alleged that in any event the Camberley Group had suffered no loss.
I found that there was indeed a conspiracy between Mr Pilling and Mr Foster the aim of which was to lure away clients of C3 and that it was acted upon. At the heart of the case against them was a detailed business plan which was recovered from Mr Pilling's work laptop. This listed all of the customers of C3 which they intended to lure away and a detailed timetable for doing so. Mr Pilling had lent Mr Foster money and Mr Foster had (through his father) taken a lease of premises from which a rival business might be operated. I rejected his evidence that these industrial premises were intended only for the storage of furniture and personal effects. The trial of the claim involved the piecing together of fragments of evidence about what the two men did and discussed over an extended period of time. The conclusion on liability is in para 150 of the Judgment.
Although I found the conspiracy case proved on the evidence, apart from two relatively small items of loss and damage, in the total sum of £6500 awarded against Mr Pilling, the Claimants failed to prove that they had suffered any loss and damage as part of claims 2 – 9.
The third category of claims was referred to by the parties and in the Judgment as the unjust enrichment claims. This encompasses claims no 10 and 11 in the above table. Claim 10 was an allegation against Mr Pilling alone that he made false mileage claims. This was abandoned at the beginning of the trial, leaving just one such claim, which I rejected. However, the background was that Mr Pilling admitted that he had dishonestly submitted other false claims for personal items.
Claim 11 was a claim for overpaid wages advanced against Mr and Mrs Pilling jointly. They both denied the false wages claim but I found that false claims for hours worked had been submitted dishonestly by Mr Pilling. I ordered them to repay £15,486 in overclaimed wages.
The trial lasted five days. There were four full lever arch files of documents and another four lever arch files of authorities. Looking at the matter very broadly, the Warranty Claim and Damages Claim took up almost all the court time in roughly equal portion. The unjust enrichment claims involved very little evidence and would not have justified proceeding in the High Court. Had the unjust enrichment claim been pursued on its own it would have either been a day or half day County Court trial.
No party drew my attention to any relevant without prejudice save as to costs offers.
Submissions
The Claimants submitted that costs should be awarded on an issues basis. The Claimants sought:
a. Their costs against D1 on the Warranty Claim
b. Costs against D1 and D2 for the costs of the liability part of the Damages Claim
c. No order on the quantum sub-issue in the Damages claim.
d. No order on the false mileage claim
e. Costs against D2 and D3 on the unjust enrichment claim.
The Claimants sought an assessment on the indemnity basis. This was justified in part on the basis of criticisms in the judgment of D1's evidence in relation to the conspiracy claim and criticism of his conduct in relation to and communications with Mrs Foster. The indemnity assessment in relation to Mr Pilling was based on some correspondence with Mr Pilling's former solicitors marked without prejudice save as to costs in which it appears that Mr Pilling at one point contemplated admitting parts of the claim against himself and giving a statement which would have assisted the Claimants' Damages Claim against D1.
Mr Wibberley, on behalf of Mr Foster, accepted that Mr Foster ought to pay C1's costs of the Warranty Claim. However, the following orders were sought:
a. In so far as C2 has incurred any additional costs to those incurred by C1, D1 should pay 50% of those.
b. C3 should pay D1's costs of the Damages Claim; alternatively 80% of D1's costs.
He submitted that assessment ought to be on the standard basis and that enforcement ought to be stayed until the conclusion of the financial remedies...
To continue reading
Request your trial