IS Innovative Software Ltd v Howes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE POTTER,LORD JUSTICE TUCKEY,LORD JUSTICE NEUBERGER |
| Judgment Date | 19 February 2004 |
| Neutral Citation | [2003] EWCA Civ 1288,[2004] EWCA Civ 275 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/03/0995,A2/2003/0995 |
| Date | 19 February 2004 |
[2003] EWCA Civ 1288
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(HIS HONOUR JUDGE YELTON sitting as a High Court Judge)
QUEEN'S BENCH DIVISION
Lord Justice Potter
Lord Justice Tuckey
A2/03/0995
MR GUY TRITTON (instructed by Messrs Christopher Davidson & Co, Glos GL50 1XP) appeared on behalf of the Applicant
The Respondent did not appear and was not represented.
This is a renewed application for permission to appeal, permission having been refused by the single Lord Justice on 15 July 2003.
The judgment concerned is a judgment of His Honour Judge Yelton, sitting as a High Court judge, dated 2 April 2003 when, following a hearing lasting seven days, he handed down judgment on 16 April 2003. It dealt very succinctly with what had been a complicated claim in conspiracy by the claimant software company against a former senior employee, Mr Howes, and other named employees, and also against Accquiant Limited, a company set up by Mr Howes in a similar line of business to the claimant following his leaving their employment.
It is not necessary to recite the facts which appear clearly and shortly set out in the judgment, and which have been the subject of a long and helpful skeleton argument for the claimant placed before us. Mr Tritton has addressed us on behalf of the claimant. I shall proceed straight to the grounds of the appeal under the numbers set out in the draft notice of appeal.
I would give leave to appeal under ground 1. There are two forms of conspiracy recognised as giving rise to civil liability which are effectively two different torts. They are conspiracy to injure by lawful means and conspiracy to injure by unlawful means: see paragraph 24–117 of the 18th edition of Clerk & Lindsell on Tort and the cases there cited. In the first case it is necessary to prove a predominant purpose to injure. In this case the judge found there was no intent to injure at all on the part of Mr Howes, the proposed appellant. In the second type of case, although an intent to injure (albeit not the predominant intention) is required, it is a moot point whether it is open to someone who intentionally conspires with another to do an unlawful act "….. aimed at another and foreseeably likely to harm",
him to assert that he had no intention to injure: see per Lord Denning in the Court of Appeal in Lonrho v Shell as quoted by Lord Bridge in Lonrho v Fayed [1992] AC 448–467 with apparent approval. See also the observations of this court in Kuwait Oil Tanker Company SAK v Al Badir, reported in The Times on 30 May, 2000. The relevant paragraphs of the transcript of that judgment are at 107 to 108, 117 to 118 and 119 to 121. The effect of those paragraphs is that, as the judge rightly directed himself, it is necessary to prove an actual intention to injure. However, it is also made clear that, where an intention to do an unlawful act which on any view will cause harm to the claimant, the intention to injure cannot be denied, or, put another way, will inevitably be inferred.
My first reaction, like that of the single Lord Justice, was that the judge had directed himself correctly and, in the light of his finding that Mr Howes had no intent to injure the claimants, the appeal under ground 1 would be hopeless. However, the claimants wish to argue the point on the basis of Lord Denning's observations to which I have already referred.
The argument is that, even accepting the judge's finding that Mr Howes, in signing and backdating the offers of employment, intended to do no more than to give his fellow employees what they were in any event entitled to require from the claimants, that act was in fact unlawful for the purposes of the law of conspiracy, was aimed at the claimants and was foreseeably likely to cause the claimants damage because of the known surrounding circumstances of the impending redundancy claims by the fellow employees.
I reluctantly conclude that the points are arguable. Therefore I would give permission under paragraph 1.1 to 1.4 of the grounds of appeal. I should add that, damage being the essence of the action of conspiracy, if the judge's finding stands that the employees were in any event entitled to the notice provided for in the letter, this ground of appeal will effectively be worthless to the claimants. However, at 1.5 and the following paragraphs of the grounds of appeal, the claimants set out their grounds of appeal against that finding, which grounds also appear to be arguable. Accordingly I would grant permission under ground 1.
As to ground 2, I would refuse permission. Like the single Lord Justice I see no reasonable prospect that the judge's assessment as to contribution would be upset by this court. As to ground 3, this point is inextricably connected with ground 1 and I would therefore give permission. As to grounds 4 to 8 inclusive, I consider the points made to be arguable even upon the findings of the judge as to what was done by the parties over the relevant period.
Grounds 9 and 10 hang together. While I would not in the ordinary way regard it as appropriate or proper to grant permission to appeal in respect of a judge's findings of fact or his omission to make such findings on questions of discovery, I think it right to grant permission on grounds 9 and 10 because of the apparent force of certain of the points made, particularly those under ground 10, and the importance of the issues on discovery in relation to the issue of conspiracy and inference of intent.
As to ground 11, I would refuse permission. The matter of confidentiality was essentially one for the judge on the expert evidence before him, the burden of establishing it being on the claimants. In my view, not least because I would grant permission under ground 12 as appears below, it would be disproportionate to reopen the issue on appeal. I would give permission under ground 12 as being closely inter-related with grounds 4 and 5.
As to grounds 13 and 14, I agree entirely with the single Lord Justice that the question of allowing the late amendment sought was pre-eminently one for the judge. His view that the claimants had pinned their flag to the mast of conspiracy, and that unfairness might arise in the Part 20 proceedings, is not one which this court would, or should be prepared, to disturb. We have been frankly told by Mr Tritton that Mr Howes, who appeared in person below, informed the judge (who appeared to accept) that, had the case been put on the basis of the amendment proposed, he might well have asked further questions of Mr Cowling in the Part 20 proceedings. The judge was the best person to judge whether that appeared to be a sincere and well-founded suggestion, and in my view it would not be right for this court to interfere.
Having expressed the view that permission should be granted on the principal points in the proposed appeal, I would add this for the benefit of the parties. Like the judge, I am concerned that the pursuit of the case has the hallmarks of a blood match rather than an exercise conducted with an eye to economic reality, bearing in mind the limited extent of damages recoverable even if the claimants succeed in the appeal. In the event of their failure, or only limited success, this court, in considering issues of costs, is likely to have regard not only to the strictures of the judge at paragraphs 116 and 119 of his judgment, but also to the principle of proportionality.
Nonetheless, I would grant permission under the grounds I have enumerated.
So would I.
ORDER: Permission to appeal refused.
[2004] EWCA Civ 275
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(HIS HONOUR JUDGE YELTON)
Royal Courts of Justice
The Strand
London, WC2A 2LL
Lord Justice Tuckey
Lord Justice Rix
Lord Justice Neuberger
A2/2003/0995
MR G TRITTON (instructed by Messrs Christopher Davidson) appeared on behalf of the Appellant
MR ROBERT HOWSE appeared in Person
(Approved by the Court)
Thursday, 19 February 2004
This is the judgment of the court on an appeal from a decision of His Honour Judge Yelton, sitting as a Deputy High Court Judge, who, on 16th April 2003, dismissed a claim brought by IS Innovative Software ("the company") against Mr Robert Howes. The claim had also been brought against five other defendants, but the company settled with four of them, and there is no appeal against the dismissal of the company's claim against the fifth defendant, because it is in insolvent liquidation.
Although there were other issues before the judge, the issues in this appeal arise from the fact that the company claimed damages from Mr Howes for two alleged torts. The first was based on an agreement, to which Mr Howes was party, by which contracts of employment of four employees of the company (including the second and sixth defendants), were executed after Mr Howes had ceased to be managing director of the company, and were backdated to a time when he was the managing director. The second tort alleged against Mr Howes is based on the...
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