Henderson & Jones Ltd v Salica Investments Ltd

Hearing dates: 22 January – 5 February 2025

Approved Judgment

This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on Monday 03 March 2025.

Contents

INTRODUCTION

By this action the Claimant (which is a litigation funder) brings a claim for breach of confidence against the First Defendant (“ Salica 1”) and Fourth Defendant, Mr. Dominic Perks (“ Mr. Perks”). 2 The Claimant brings the claim as assignee, the claim having been assigned to it by Mr. Tony Gifford (“ Mr. Gifford”) by way of a deed of assignment dated 5 December 2021.

The claim arises out of two meetings in early 2016, in which Mr. Gifford sought to obtain investment funding from Salica to further develop and take to market his original cloud-based software application and associated business opportunity, ‘True View Care’ (“ TVC”), being a care technology platform for the elderly cared-for population.

TVC was designed for the benefit of care providers, patients and their relatives, with the aim of modernising and digitising care services. Before and during the two meetings, Mr. Gifford maintains that he disclosed confidential information, both orally and in documentary form, concerning business and technical information about TVC. It is the Claimant's case that Salica and Mr. Perks misused this confidential information (through the development of the business of the Second Defendant (“ DHV”) and its subsidiary, the Third Defendant (“ DHVT”)), in order to develop their own business and cloud-based software (known as “ Vida”) for the care industry.

THE PARTIES

Mr. Gifford has significant experience in software development. He began developing TVC around the end of 2008, with the assistance of his then wife, Angela Gifford (“ Mrs Gifford”), who worked as a carer. They moved to Tenerife in around March 2009, where they lived together at a care home named La Finquita (at which Mrs Gifford was working). By observing and talking to the staff of that care home, Mr. Gifford developed TVC. He subsequently returned to the UK in 2011.

Mr. Gifford continued developing TVC until mid-2015, at which point he considered further investment was necessary to finalise its development and eventually take the software to market. He sought out the assistance of Mr. James Walker, who became involved with the business development and marketing of TVC to potential investors.

Messrs Gifford and Walker contacted Mr. Marc Webster, who in turn introduced them to a potential investor, Mr. Alan Fernback in October 2015. Although Mr. Fernback could not himself invest in the project due to other commitments, he considered it would potentially be of interest to Mr. Perks. He arranged for an introductory meeting between the parties, thereby setting in motion the chain of events which have led to this claim.

Salica was founded on 4 November 2013 by the late Mr. Rupert Hambro and Mr. Perks. It is an FCA-regulated investment firm which backs and builds “disruptive” technology companies by providing seed investment and other forms of business support, usually in exchange for equity. It also originated and grew its own internal businesses through its own corporate vehicles.

Mr. Perks served as the director and CEO of Salica from November 2013 until his exit from the firm in April 2023, although he remains a shareholder. He was also a director of DHV between 28 January 2016 to 3 May 2018, and DHVT between 21 November 2017 and 3 May 2018. Mr. Perks gave evidence that during his time at Salica, he and Mr. Hambro had a mutual agreement that where either of them invested particular amounts of time or energy into a new venture, they would individually be entitled to ‘sweat’ equity alongside Salica itself 3.

In early 2016, Hambro Perks had become interested (amongst other things) in the health technology market, having identified it as an area ripe for disruption. To that end, it began recruiting healthcare technology personnel as ‘entrepreneurs-in-residence’, with a view to developing products and business propositions in that market. This included Mr. Karim Gargum (who joined Hambro Perks in January 2016) and Ms Devika Wood (who joined on 23 February 2016). They joined Mr. Naushard Jabir, who had been employed by Hambro Perks as an investor advisor before 2015.

DHV was incorporated on 28 January 2016 – a date which, as will be seen below, is the subject of some significance to this claim – with Mr. Perks as the initial sole director and shareholder. Its founding team included Mr. Perks as a co-founder, Mr. Jabir as the CEO and co-founder (becoming a director on 6 June 2016), and Ms Wood as Chief Medical Officer (becoming a director on 8 November 2016).

DHV was branded initially as Care Angels and subsequently traded as Vida. It aimed to disrupt the domiciliary care industry by matching carers with patients using proprietary cloud-based software of the same name. It was ultimately unsuccessful in doing so and ceased trading in April 2019. The company was placed into administration on 16 July 2024.

DHVT was a wholly owned subsidiary of DHV, being incorporated on 20 September 2016, with Mr. Jabir as the sole director. It was primarily set up for tax purposes and was assigned the intellectual property in the Vida software from DHV, which it in turn licensed back to DHV. Mr. Perks and Ms Wood joined the DHVT board on 21 November 2017 and 3 May 2018 respectively. DHVT was placed into creditors voluntary liquidation on 14 April 2024.

Mr. Jabir's involvement in the day-to-day running of DHV and DHVT ended on 20 December 2017 with his resignation as a director in acrimonious circumstances. The directors appointments of Mr. Perks at DHV and DHVT were both terminated on 3 May 2018, and those of Ms Wood were both terminated on 20 May 2019.

At the trial, Messrs Gifford, Walker and Webster gave evidence on behalf of the Claimant. I considered them all to be honest witnesses. A witness statement from Mrs Gifford was also admitted in evidence pursuant to a hearsay notice.

Mr. Perks and Ms Wood gave evidence on behalf of the Defendants. The parties agreed that I should also read the witness statements (which were admitted into evidence) of:

(a) Mr. Max Fishwick (who was an intern at Hambro Perks in 2015 and at DHV in summer 2016; and was later employed by DHV from around October 2017 to December 2020); and

(b) Mr. Jacques Pagels (who worked as an application developer at Vida from March 2018).

The Court also heard from the Claimant's expert witnesses, Dr Nigel Young (who prepared two reports on the TVC software) and Mr. Stephen Skeels (who provided his expert opinion on valuation/quantum). The First and Fourth Defendants adduced no expert evidence. The reason for that is as follows. The deadline for the parties to exchange their expert reports on software engineering was 1 October 2024 and on quantum was 18 October 2024. The First and Fourth Defendants failed to comply with those deadlines and applied to this Court for relief from sanctions and/or an extension of time in that regard. Mr. Charles Hollander KC (sitting as a Deputy High Court Judge), who heard the pre-trial review, refused to grant them relief from sanctions and/or an extension and permission to serve expert evidence out of time. In consequence, the court only had the benefit of hearing from the Claimant's expert...