Hydropool Hot Tubs Ltd v John Roberjot and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Arnold |
| Judgment Date | 04 February 2011 |
| Neutral Citation | [2011] EWHC 121 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC10C02321 |
| Date | 04 February 2011 |
[2011] EWHC 121 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Arnold
Case No: HC10C02321
Nicholas Stewart QC and Scott Pearman (instructed by Gaby Hardwicke) for the Claimant
Ulick Staunton (instructed by Callaghans) for the Defendants
Hearing date: 13 January 2011
Introduction
I have before me an application by the Claimant ("Hydropool") for the Defendants ("John Roberjot" and "Paramount" respectively) to be punished for contempt of court. Somewhat unusually, I reserved my judgment since a point of law arose during the course of the hearing which counsel had not prepared to address me on. I therefore gave the parties the opportunity to make further submissions on that point in writing. As related below, there have also been a number of other developments since the hearing.
Background
Hydropool carries on business as the exclusive UK distributor of hot tubs manufactured in Canada by Hydropool Inc. Although various registered Community trade marks which include the word HYDROPOOL are owned by Hydropool Inc, Hydropool claims that it has its own reputation and goodwill in the UK. Hydropool maintains an electronic database of information concerning actual and prospective customers. It contains customer names, addresses, telephone numbers and email addresses. In the case of actual customers, it contains information about Hydropool's dealings with each customer. Hydropool claims database right in respect of the database. It also contends that the information contained in the database, and in particular the customer list, is its confidential information.
John Roberjot was appointed as a director of Hydropool on 5 June 2007. In August and September 2009 other directors of Hydropool became suspicious about his behaviour. In due course a number of disciplinary allegations were made against John Roberjot. This led to the parties entering into a compromise agreement dated 10 November 2009 under which Hydropool paid John Roberjot a severance payment in consideration of him waiving any claims he might have against Hydropool and giving various undertakings.
Six days later John Roberjot set up Paramount. Paramount supplies hot tubs, parts and accessories and undertakes servicing. John Roberjot's evidence is that it started trading either on 1 May 2010 (first affidavit, paragraph 25) or in March 2010 (second affidavit, paragraph 9). At least to some extent, it competes with Hydropool. John Roberjot is the sole director of Paramount. The majority shareholder is John Roberjot's father Paul, who is not an officer of the company. John Roberjot's evidence is that the only people who work for the company are himself, Paul Roberjot and Jack Weller (although in the case of Mr Weller, he is said to be self-employed). Mr Weller was previously employed by a company called Hydropool Spas (Service) Ltd.
On 15, 16 and 17 June 2010 a number of Hydropool's customers received an SMS text message sent on behalf of Paramount which read as follows:
"Your new number for unbeatable savings on Filters, Chemical and Servicing for your hydropool spa. Call 01403 710888 or visit www.paramounthottubs.co.uk."
Hydropool contends that John Roberjot and Paramount obtained the contact details of its customers from its database, whether before or after John Roberjot's departure from Hydropool, and used them to send this text message. Accordingly Hydropool contends that John Roberjot and Paramount have committed a number of wrongful acts, including breach of the compromise agreement, breach of confidence and infringement of database right. Hydropool also contends that the text message constitutes an act of passing off.
On 22 June 2010 Hydropool's solicitors sent letters before action to Paramount and John Roberjot. Not having received satisfactory responses, on 6 July 2010 Hydropool launched an application for interim injunctions. On 9 July 2010 the Defendants gave certain contractual undertakings pending an adjourned hearing of the application.
On 13 July 2010 John Roberjot swore a first affidavit in opposition to Hydropool's application. In that affidavit, he said that Paul Roberjot had arranged for "711 texts" to be sent to "people whose details appeared on the Second Defendant's database" as a marketing exercise. The natural reading of this is that the text message in question was sent to 711 recipients. He denied that either he or Paul Roberjot had made or taken any copy of Hydropool's database or customer list. He said that Paramount had acquired an existing customer database from an American company called Watkins, whose UK distributor called Hotspring UK had gone into receivership, as part of an agreement that Paramount would be a distributor for Hotspring spas and hot tubs. He said that Mr Biggs of Watkins had emailed the Hotspring UK database to him on 26 March 2010. He also said that, since it commenced trading, Paramount had received many leads from a website called WhatSpa. com, which also supplied leads to Hydropool. He suggested that the reason why a number of Hydropool's customers had received the text message was due to an overlap between Hydropool's database and Paramount's.
Also on 13 July 2010 Paul Roberjot swore an affidavit confirming the contents of John Roberjot's affidavit.
On 16 July 2010 Kitchin J made an order after a hearing which was attended by counsel instructed on behalf of the Defendants, but not by John Roberjot or any other representative of Paramount. The Defendants did not consent to the order, but did not oppose it. The order included the following provisions:
"(2) Until the Return Date, or trial or further Order in the meantime:
(1) The First and Second Defendants must not use or disclose any information acquired directly or indirectly by the Defendants in respect of customers of Hydropool Hot Tubs Limited (hereinafter referred to as 'the Claimant') contained in;
(a) the Claimant's database including details of the Claimant's customers ('the Database'); and
(b) the Claimant's list of customers ('the Customer List') whether recorded in some paper or other hard copy document ('hard copy') or held in electronic form ('soft copy')
…
all the said information … being 'the Information'
…
(5) The First Defendant must swear and the Second Defendant must cause to be sworn on its behalf or before 4pm on 21 July 2010 affidavits setting out:
a. Confirmation of any and all of the Information (as defined in paragraph 2(1) above) in the possession or previously in the possession of the First Defendant and/or the second Defendant and further confirmation of:
i. How the Information came to be in the possession of the Defendants or either of them;
ii. What use has been made of the Information by or behalf of the Defendants or either of them;
iii. The date of each and every such use;
iv. Any customers on the Database and/or the Customer List approached by or on behalf of the Defendants or either of them;
….
(3) The solicitors for the Claimant shall at 10am on 21 July 2010 or such other time on that day as shall be mutually agreed between the parties' solicitors be permitted to attend the offices of the solicitors for the Defendants whereupon the solicitors for the Claimant shall be allowed to inspect and take both electronic and hard copies of:
….
(b) a list of the recipients of the 711 sent texts referred to in paragraph 29 of the Affidavit of the First Defendant dated 13 July 2010;
Save that the solicitors for the Claimant undertake that they will not disclose this material to the Claimant without first obtaining either the written consent of the Second Defendant or an Order of the Court permitting such disclosure to the Claimant."
Kitchin J's Order was prominently endorsed on the front page with a penal notice addressed to both Defendants. It was not personally served on either Defendant, however.
On 21 July 2010 the Defendants' then solicitors sent Hydropool's solicitors by email what they described as a list of the recipients of the texts, referred to as the "Text List", in purported compliance with paragraph 3(b) of Kitchin J's Order. As I understand it, it is common ground that it was agreed that the Defendants' solicitors could send the list by email rather than Hydropool's solicitors attending their offices. What was sent, however, was simply a list of telephone numbers.
On 25 July 2010 John Roberjot swore his second affidavit, in purported compliance with paragraph 2(5) of Kitchin J's Order. No point is taken on the fact that this was slightly late. John Roberjot denied that he or Paramount had ever been in possession of Hydropool's database or customer list, or that he had had access to it since the end of his employment by Hydropool. He went on:
"6. I have also been asked to provide a list of the recipients of the 711 texts ('Text List') which are referred to in paragraph 29 of my affidavit dated 13 July 2010. This has also been provided to my solicitors and I understand sent to the Claimant's solicitors.
7. In relation to the Text List, I can confirm that there are 659 numbers contained in the list. The list is a recreation of the information provided to the company that sent the texts on behalf of the Second Defendant, namely TXT Local. We do not have a hard or soft copy of the details sent to TXT Local. The information was sent to TXT Local by my father, Mr Paul Roberjot, directly uploading the telephone numbers onto its web site. We are trying to obtain from TXT Local any records it has of the information uploaded.
8. I should confirm that I did not upload these numbers onto TXT Local's website. The information was manually uploaded by my father.
9. All of the 659...
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