Emmet Colville v Seventy Thirty Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 06 February 2019 |
| Neutral Citation | [2019] EWHC 880 (QB) |
| Court | Queen's Bench Division |
| Docket Number | No. QB/2018/0191 |
| Date | 06 February 2019 |
[2019] EWHC 880 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Justice Nicklin
No. QB/2018/0191
Ms S. Clarke (instructed by DAS Law) appeared on behalf of the Appellant.
Ms K. Holderness (instructed by Keystone Law) appeared on behalf of the Respondent.
(This transcript has been prepared without the aid of documentation)
This is an appeal against the order of DJ Hugman, sitting at Wandsworth County Court, on 22 January 2018. He was trying the claim and so, for appeal purposes, is treated as exercising the jurisdiction of a Circuit Judge. Permission to appeal was given by Sir Alistair MacDuff on 13 August 2018. The appellant is the Defendant to the claim, Emmet Colville. The Respondent was the original Claimant in the proceedings. I shall refer to the parties as Mr Colville and Seventy Thirty.
I am grateful to counsel for their helpful submissions, which have helped significantly in identifying and narrowing the issues on this appeal.
Seventy Thirty operates a matchmaking business. Mr Colville was employed as one of its matchmakers. He was the subject of strict contractual obligations of confidence. Seventy Thirty has come to some prominence as a result of a High Court litigation between it and a former customer, Tereza Burki. Ms Burki sued Seventy Thirty for damages for misrepresentation. Essentially, she claimed that Seventy Thirty had falsely misrepresented that it had a substantial number of wealthy male members who matched the claimant's criteria and she had been induced to pay £12,800 to become a member. His Honour Judge Parkes QC, sitting as a High Court Judge, handed down judgment on 15 August 2018 ( [2018] EWHC 2151 (QB)). He held that Ms Burki was entitled to repayment of her membership fee, plus £500 damages for distress, but was required to pay £5000 damages in respect of, effectively, a counterclaim by Seventy Thirty for a libellous review of Seventy Thirty, albeit brought as a separate claim.
I can gratefully adopt HHJ Parkes QC recitation of the background to the relationship between Ms Burki and Seventy Thirty. The High Court judgment post-dates the decision under appeal and so has no bearing on it. It is simply a convenient summary that obviates the need for me to explain all the background of the parties in this judgment.
The High Court claim was the foundation and basis of the present claim by Seventy Thirty against Mr Colville. For reasons that will become apparent, the two claims are closely linked. In summary, Seventy Thirty claimed that Mr Colville had breached his contractual obligations of confidence by assisting Ms Burki to bring her High Court claim against Seventy Thirty. It claimed as a loss, arising from that breach, the legal costs that it had paid in defending the proceedings. Having heard evidence at trial, DJ Hugman agreed.
The Order that he made consequent upon his finding on liability was as follows,
“The defendant shall:
(a) disclose any confidential business information which he has retained following termination of his employment with the claimant by 4pm on 5 February 2018;
(b) disclose the names and contact details of any person, companies or other entities to whom the defendant has disclosed any such confidential business information and the extent of such disclosure by 4pm on 5 February 2018;
(c) deliver to the claimant and/or otherwise destroy any confidential business information he has retained following termination of his employment with the claimant by 4pm on 5 February 2018;
(d) comply henceforth with the terms of his contract and deed with the claimant to the extent that such terms survive the termination of his employment with the claimant.
The money claim is stayed pending determination of the claim HQ-17X02160” (which is the action number of the High Court action brought by Ms Burki).”
Effectively that was to uphold Seventy Thirty's claim that Mr Colville had breached his obligations of confidence. He had provided confidential material to Ms Burki, which had caused the loss to Seventy Thirty arising from Ms Burki's High Court claim.
The trial took place before DJ Hugman over two days.
It was Seventy Thirty's case at trial that:
9.1. Mr Colville and Seventy Thirty parted company on less than amicable terms; Seventy Thirty alleged that he had, on departure, made a veiled threat;
9.2. Mr Colville, in breach of his contractual obligations of confidence, provided Ms Burki with (i) contact information for several other Seventy Thirty clients and (ii) information about Seventy Thirty's business practices and thereby attempted to induce her to cease dealing with Seventy Thirty; and
9.3. as a direct consequence of this breach, Ms Burki commenced her High Court claim. As a result, Seventy Thirty have incurred losses in the form of its legal costs.
Seventy Thirty relied upon a number of admissions made by Mr Colville:
10.1. that he had retained emails of dissatisfied clients of Seventy Thirty and their personal contact details following his departure;
10.2. that, following the termination of the employment with Seventy Thirty, Mr Colville contacted Ms Burki in both April and May 2015. Mr Colville knew at that time that Ms Burki had made complaints about Seventy Thirty's service;
10.3. that there was a meeting in May 2015 between Ms Burki and Mr Colville in a coffee shop at which, according to Ms Burki's witness statement, she had done most of the talking and Mr Colville had not corrected her;
10.4. that in the autumn of 2015, Mr Colville put Ms Burki in touch with another dissatisfied client, KH;
10.5. that Ms Burki issued a County Court claim against Seventy Thirty in April 2016;
10.6. that Mr Colville provided Ms Burki with the contact details of three or four other clients of Seventy Thirty at some point after the County Court claim had been issued; and
10.7. that Mr Colville intended to provide evidence in support of Ms Burki's claim and, to that end, he attended two conferences with Ms Burki and her legal representatives and discussed Seventy Thirty's business with them.
Further important parts of the chronology were relied upon by Ms Holderness at the hearing.
11.1. Mr Colville provided a witness statement to Ms Burki's solicitors, in May 2017, for use in the claim against Seventy Thirty. Ms Holderness accepts that the only evidence contained in this witness statement that was arguably a breach of the confidentiality restriction was his evidence about having typed the numbers of other clients of Seventy Thirty into Ms Burki's mobile phone at one of their meetings to allow her to make contact with them.
11.2. The re-amended Particulars of Claim were served on 14 June 2017. They pleaded an express case of misrepresentations and, as part of that, contended that the representation that Seventy Thirty had a large database of male clients was false.
11.3. Ms Burki's Directions Questionnaire was filed on 15 September 2017. In it, in the section seeking details of the parties' witnesses for trial, Ms Burki identified Mr Colville and stated that he would give evidence as to “ truth or falsity of statements about Seventy Thirty's services”.
A key dispute, at least on the statements of case, was whether any breach of confidence committed by Mr Colville had caused Ms Burki to pursue her High Court Claim. That was, ultimately, an issue of finding facts as to what Mr Colville had told Ms Burki, and whether that had been a significant cause of her decision to bring her High Court Claim. If, for example, Mr Colville, as a disgruntled former employee, had merely encouraged her to sue Seventy Thirty but disclosed no confidential information, that would not have placed him in breach of his obligation of confidence.
In her skeleton for the appeal, Ms Holderness succinctly summarises the issue,
“The issue of causation was, therefore, firmly in dispute. There can be no doubt that the judge appreciated that part of his task at trial was to determine whether there was a causal connection between Mr Colville's breach of contract and the losses claimed by Seventy Thirty.”
The Judge reserved his judgment and gave an oral judgment on the afternoon of 22 January 2018. The judge subsequently approved the transcript of his judgment. References in square brackets are to paragraphs of the judgment below.
The judge made the following findings:
15.1. On his departure from Seventy Thirty, in April 2015, Mr Colville took the details of some 22 clients with him, as well as other confidential information about clients of Seventy Thirty. Mr Colville, “ at some point thereafter … shared the information … [with Ms Burki] … and her lawyers in relation to the High Court claim” ([5], [46] and [47]).
15.2. Mr Colville started having meetings with Ms Burki as early as August 2015, and there had been at least three meetings between Mr Colville and Ms Burki (some of which included her lawyers), and that he had provided substantially more assistance to Ms Burki than Mr Colville had indicated in his witness statement for trial ([31]).
15.3. Ms Burki discussed her dissatisfaction with Seventy Thirty with Mr Colville. Mr Colville described Seventy Thirty to Ms Burki as the most corrupt and immoral matchmaking outfit (or words to that effect) ([31]).
15.4. A year or more after leaving his employment with Seventy Thirty, in May 2016, Mr Colville provided information to Ms Burki to enable her to contact...
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