Icap Management Services Ltd v Dean Berry (First Defendant) BGC Services (holdings) LLP (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 06 June 2017 |
| Neutral Citation | [2017] EWHC 1321 (QB) |
| Court | Queen's Bench Division |
| Date | 06 June 2017 |
| Docket Number | Case No: TLQ17/0254 |
[2017] EWHC 1321 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: TLQ17/0254
Daniel Oudkerk QC & Jane McCafferty & Edward Brown (instructed by Macfarlanes LLP) for the Claimant
Matthew Sheridan & Alexander Robson (instructed by Doyle Clayton) for the First Defendant
Paul Goulding QC & Diya Sen Gupta & Kerenza Davis (instructed by BGC Legal) for the Second Defendant
Hearing dates: 28 th April 2017 & 2 nd, 3 rd, 4 th May 2017
Introduction
Mr Dean Berry, the first defendant in these proceedings, was employed by ICAP Management Services Ltd, the claimant, as Chief Executive Officer of a division of the group of the Claimant group of companies called "Global e-Commerce", pursuant to a contract of employment dated 10 May 2013. ICAP Management Services Ltd (or "IMSL") was a service company providing services to companies in the ICAP Global Broking Business (or "IGBB").
By the terms of the contract, the employment of Mr Berry could be terminated by either party on twelve months' prior written notice. The contract also entitled IMSL to place Mr Berry on what is called "garden leave", during which period he would not be required to perform any of his duties but would continue to be paid his salary (although not a bonus). The contract included post-termination restraints on competition, dealing with clients and poaching other staff.
On 22 July 2016, Mr Berry gave written notice to the claimant terminating his employment on 21 July 2017. Three days later, BGC Services (Holdings) Limited ("BGC") a global brokerage company and a competitor of IGBB and the claimant, issued a public announcement indicating that the first defendant would be joining the company as an executive managing director in its global electronic and hybrid execution team, subject to his outstanding legal obligations.
As at 30 December 2016, the shares of IMSL were owned by ICAP Holdings Limited, the shares of that company were owned by ICAP Global Broking Holdings Limited ("IGBHL") and the shares of that company were owned by ICAP plc. On that date ICAP plc sold the shares in IGBHL to a company called Tullett Prebon plc. On the completion of that sale Tullett Prebon plc was renamed, TP ICAP plc.
On 3 March 2017 Mrs Justice O'Farrell made an order that the first defendant should not, directly or indirectly, be employed by, provide services to, work for, or in any way assist BGC, should not have any contact with clients or employees of the ICAP group, and should not make use of any confidential information belonging to the ICAP group. She also ordered that until 5 May 2017 the second defendant should not induce or procure the first defendant to work for BGC.
It now falls to me to consider the merits of the claimant's case against the defendants and to decide whether the injunctions granted by O'Farrell J should be continued. Essentially, it is the case of the claimant that the injunction should continue until 21 July 2017. It is the case of both defendants that the interim injunction should be set aside.
Case Management
This case came on for hearing on 28 April 2017. At the parties' suggestion, but with my agreement, a live transcription service was employed throughout the hearing. I was provided with a typed transcript of evidence and argument at the end of each day. That was very helpful.
In advance of the hearing, I had received skeleton arguments from all three parties. Paragraph 12.3.8 of the Queen's Bench Guide sets out the requirements for a skeleton argument. It provides that skeleton arguments should "not normally be longer than twenty pages of doubled spaced A4 paper". Converting the skeleton arguments in this case to that format produces a skeleton argument from the claimant of 151 pages, plus 35 pages of appendices. For the first defendant the figure was 158 pages, plus eight pages of appendices; for the second defendant the figure was 51 pages, plus six pages of appendices. There was, in fact, no significant issue between the two defendants; the provision of two separate skeletons of such length making similar points was singularly unhelpful.
This was a case with a time estimate of six days including two days for pre-reading. The issue at stake was the enforcement of the terms of an employment contract for something less than three months. The overriding objective, set out in CPR 1.1(2), directs the court to ensure that cases are dealt with "justly and at proportionate cost". That includes allotting to the case "an appropriate share of the court's resources". As I made clear to the parties at the commencement of this hearing, skeleton arguments of the length described above, in a case such as this, are inconsistent with that overriding objective. The skill in drafting a skeleton argument lies in the production of a concise outline of the essential elements of the argument which is to be developed orally in court.
It is evident that the authors of the skeletons in the present case were proceeding on the assumption that they could demand of the court such judicial time as they thought necessary. In that they were mistaken. The length of the written argument means that the vast bulk of such pre-reading time as was allowed had to be devoted to reading them, rather than underlying documents. In fact, in this case, the length and complexity of the written argument served to obfuscate the real issues in the case. In truth, these were not skeleton arguments at all; the arguments contained in these documents were fully fleshed out and dressed in much unnecessary finery.
I indicated at the beginning of these proceedings that I was minded to disallow a substantial part of the costs of preparing the skeleton arguments. I will, of course, hear submissions on that issue, but that remains my preliminary view.
In addition to the excessive skeleton arguments, I was presented with a grossly excessive volume of documentation. The primary bundles for use in court ran to 13 volumes. I also received a further 44 lever arch files of allegedly confidential documentation. Of the 14,000 pages of documentation in the confidential files, I was referred at the hearing to less than 100. I was also provided with six volumes of authorities.
The provision of that sort of volume of material in a four day case is absurd. It too is contrary to the overriding objective. It betrays a failure by those acting for all the parties to adopt a sensible and constructive approach to preparation. My current view, again subject to submissions at the handing down of this judgment, is that a substantial part of the costs of producing or agreeing this vast quantity of material should also be disallowed.
In order to make this hearing manageable, I gave a series of case management directions on the first morning of the trial. First, I required the parties to file and serve an agreed list of issues. Second, I directed the provision of summary statements of case which were to run to no more than twenty pages each. Third, I directed the production of a schedule setting out where the parties' cases could be found in the skeleton argument on each of the agreed issues. Fourth, I directed the production of an agreed glossary to help the court with the forest of acronyms employed in the documentation.
I record here my gratitude to all the parties for their work over the following weekend in producing that material on time. The list of issues proved especially useful in ensuring that argument was directed to what really mattered. Whilst I seek to cover the topics identified in the list of issues in this judgment, I do not regard myself as bound to follow that structure. In fact, as will become apparent, my resolution of the critical issues has led me to deal with matters in a somewhat different way.
I also directed that closing submissions would be completed within a single day, but that I would permit brief, supplementary, written closing submissions if they were felt to be necessary. I received a 32 page document from Daniel Oudkerk QC on behalf of the claimant, a nine page document from Matthew Sheridan for the first defendant and a 30 page document from Paul Goulding QC for the second defendant.
During the course of the hearing, I expressed the provisional view that I might be assisted in understanding how the various businesses operated in practice by visiting their premises. As a result, and with the agreement of all parties, I was shown around the trading floors of ICAP and Tullett Prebon by ICAP's in-house solicitor before court on the last day of the hearing. I was accompanied by junior counsel for all three parties. The visit lasted in total some 30 minutes. I express my thanks to all concerned.
At the end of the hearing I extended O'Farrell J's interim injunctions until the handing down of this judgment.
I have read carefully all the various iterations of the parties' cases. But I make it clear, at the start of this judgment, that I do not intend to address each of the numerous arguments set out in the skeleton arguments, summary cases and closing submissions. Were I to do so, this judgment would run for hundreds of pages and would not be delivered until after that period for which the permanent injunctions are sought, thus rendering the exercise pointless, at least for the purposes of this action. I propose to do no more than is strictly necessary to decide the case.
The Oral Evidence
After a day of openings from the three lead counsel, I heard two days of oral evidence. I heard from Frederik Vogels, now the Chief Executive Officer ("CEO") of Global Broking for Europe, Middle East and...
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