First Conferences Ltd v Bracchi and Another
| Jurisdiction | England & Wales |
| Judge | Mr JUSTICE PETER SMITH |
| Judgment Date | 26 August 2009 |
| Neutral Citation | [2009] EWHC 2176 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC09C02108 |
| Date | 26 August 2009 |
[2009] EWHC 2176 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Peter Smith
Case No: HC09C02108
Mr R Onslow (instructed by Speechly Bircham) for the Claimants
Mr R Bracchi (appeared in Person) for Himself the Second Defendant
Hearing dates: 21st, 22nd, 23rd and 24th July 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Peter Smith J:
INTRODUCTION
This judgment arises out of the trial of this action which I heard between 21st and 24th July 2009. On the last day after closing submissions I indicated to the parties that I had formed the view that the Claimants had established its case on all claims save for the lack of effort claim for breach of the First Defendant's contract of employment. With the proximity of the end of term I indicated that I would be in great difficulties being able to hand down the judgment by that time. Of fundamental importance was a clear indication in advance of the two conferences that the rival contenders are proposing to hold in September and October. I therefore decided that it was appropriate to tell the parties the results and grant final relief at least in relation to those. I would then formally hand down judgment and ancillary relief and costs and permission to appeal could be dealt with at that time.
Accordingly I indicated that I would grant a permanent injunction against the Defendants and the explanation for that would be granted later.
This judgment sets out the reasons for my determining that the Claimants case has been in the main established against the Defendants.
The proceedings came before me in the following circumstances. On 12th June 2009 the Claimants issued an application for a Search Order. On 15th June 2009 Floyd J (sitting in private) granted the Claimants a Search Order in respect of the Defendants' premises and computers.
I heard the return day in respect of the Search Order on 22nd June 2009. I directed that the negative and mandatory relief granted by Floyd J should be continued until trial or further order.
I directed that the trial should take place before me commencing on 16th July 2009. There was some slight slippage in that but nevertheless the action came to trial within some 4 weeks of the commencement of the proceedings.
The First Defendant (Mr Bracchi) whilst he had advice from solicitors appeared unrepresented at trial. He also in effect represented the Second Defendant his company.
As with all cases of this nature they are complicated enough with lawyers but Mr Bracchi faced a difficult task in coping with the material. This led to him needing latitude in the way in which he presented his case. For example he did not realise that he would have to cross examine the Claimants' witnesses. Someone had apparently advised him that there would be no cross examination until he went into the witness box.
That led to the case being adjourned for a short period to enable him to prepare his cross examination. Insofar as it is proper for me I asked questions of the Claimants' witnesses of the type that I would have expected Counsel representing the Defendants to ask. I also suggested on occasions the areas of cross examination that Mr Bracchi ought to explore.
BACKGROUND
The Claimants carry on a business of organising conferences. 90% of its revenue comes from conferences and the remainder from other business information products such as reports and magazines.
There are 7 major sectors of which EyeforPharma is one. It is the biggest of all 7 and accounted for 45.15% of the Claimants' total profits in the calendar year ending 31st December 2008.
It has one main office in London but has satellite offices around the world in South Africa, New York and Australia. There are 112 employees in the office in London. Of these 50 are Conference Organisers; the rest are support and management staff. The vast bulk of conferences are organised from the London office.
CLAIMANTS' DATABASE
The Claimants have developed a massive volume of contacts which is fundamental to its business. There are currently 64,963 for EyeforPharma. These contacts are stored in the Claimants Sales Logix database system. The database is developed in a number of ways. Generally the Claimants do not buy data in bulk from other companies. They gather data for example by advertising and offering to pay people or offering reporting services. People who respond find (probably unknowingly) that their contact details are then kept on the Claimants' database. They also use resources such as “LinkedIn” a business networking website. The Claimants do not currently outsource any database gathering.
EMPLOYMENT OF THE FIRST DEFENDANT
The First Defendant applied to the Claimants for a job as a International Event Manager on 13th December 2005. At that time he was aged 22. His CV was impressive apparently for his age but turns out to have been somewhat deceptive. He gave the impression that he graduated from the University of Cambridge. His CV described his degree as “ Cambridge APU University”. In fact his university was Anglia Polytechnic University. His website profile just described it as University of Cambridge. I was also not convinced with his explanation of the reference to work experience with a company called Propriotus Superbus when no such company existed. This turned out not to be an auspicious start to his employment in reality.
He was employed from 6th March 2006 until 3rd November 2008. He worked from the Claimant's London office Monday to Friday but also frequently worked from home often in the evenings. The Claimants were unable to find his contract of employment but believed he will have signed one. The First Defendant denied he had ever signed one. However that did not rest easily between an exchange of emails between him and the Claimants' general manager Mr Simms on 6th July 2006 where the First Defendant referred to a probation review and stated that it was in his contract.
The First Defendant was employed in the EyeforPharma team. He was employed as a conference organiser and assigned to various projects. However his major focus was the November 2007 to November 2008 as a developer of the Forecasting sector.
He gave one months notice of termination of his employment expiring on 3rd November 2008. He explained (according to Mr Simms) that he was leaving to start his own company and said expressly that he had no interest in working in the events industry any more. Mr Simms stated in evidence that if he had said that he was going to go into the same business in competition he would have been questioned about his future proposals. As he stated he was not going to be a competitor the Claimants were relaxed about his departure and kept him on as a freelancer for 2–3 weeks following his departure in the travel sector.
The First Defendant denied he gave such an impression. I reject that evidence. I accept Mr Simms' evidence in preference to the First Defendant on this and several other points.
It is significant in my view that whilst the First Defendant expressed dissatisfaction with his employment in the Claimants (he apparently believing he was entitled to a higher commission) the email of 6th October 2008 that he sent to Mr Simms raise no such issues and further suggests that he was going to become involved in projects not connected with the Claimants' business. In cross examination he suggested that he had given that notice on the spur of the moment and had not been planning it for sometime. I reject that. The reason why he says that is as appears further in this judgment he needs to explain downloading of the Claimants' information to his personal internet account me. com just before this notice was given.
THE CLAIMANTS' CLAIM IN OUTLINE
The Claimants contend that the First Defendant incorporated the Second Defendant in a business relationship with Miss Joan Weingaertner. Setting up such a competing business the Claimants allege that he provided his company with a lift by transferring to it large amounts of the Claimants' customer database, details of its sales records in the Forecasting area and transferred to his name the domain name “Forecaster. com”.
In addition the Claimants allege that he has set up conferences for September and October and passed his conferences off as having been conferences associated with the Claimants and has further in emails suggested that the Claimants conferences are “poor imitations” of his own conferences.
Further the Claimants contend that the First Defendant in transferring their database material to the Second Defendant breached their rights under article 16 of the Database Regulations.
Finally they allege that he did not work with the full commitment thereby sabotaging the successful European Business Forecasting event scheduled to take place in March 2009 so that after he left the event had to be cancelled.
This latter claim has not been put forward with any vigour and I found no credible evidence to substantiate such a claim. I accordingly dismiss that claim on the part of the Claimants.
THE LAW IN THIS AREA
It is becoming increasingly common with the computerisation of information for employees who wish to set up their own competing business to help themselves to their employers' confidential information. Some of this material is not necessarily confidential as such and is capable of being found with hard work. However the...
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