James Petter v EMC Europe Ltd (Appellant/1st Defendant) EMC Corporation (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lord Justice Bean |
| Judgment Date | 16 April 2015 |
| Neutral Citation | [2015] EWCA Civ 480 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2015/0994 |
| Date | 16 April 2015 |
[2015] EWCA Civ 480
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE MITTING)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Vos
and
Lord Justice Bean
Case No: A2/2015/0994
Mr David Craig QC (instructed by Lewis Silkin LLP) appeared on behalf of the Appellant
Mr Paul Goulding QC (instructed by Allen & Overy LLP) appeared on behalf of the Respondent
The second Defendant did not appear and was not represented
Introduction
The issue in this appeal is whether the judge was right to order a speedy trial of part of a hastily issued claim. The claimant, Mr James Petter ("Mr Petter"), issued proceedings against his former employer, the first defendant, EMC Europe Limited ("EMC Europe"), on 13 March 2015 seeking, amongst other things, a declaration that clauses 14 and 15 of his terms and conditions of employment were unenforceable ("clauses 14 and 15"). Clauses 14 and 15 purported for 12 months to restrict Mr Petter's right to work for a competitor and to solicit EMC Europe's employees.
Mr Petter also seeks in his claim form other declarations concerning certain restrictive stock unit agreements ("RSUAs") that he had entered into with EMC Europe's US indirect parent company, EMC Corporation, the second defendant ("EMC Corp"), and an anti-suit injunction requiring EMC Corp to discontinue the proceedings that it initiated against Mr Petter in the US District Court in the district of Massachusetts on 27 February 2015 ("the Massachusetts proceedings").
On 23 March 2015 the judge ordered a speedy trial of Mr Petter's claims for declarations that clauses 14 and 15 were unenforceable, and that Mr Petter had not breached clause 14 by working for his new employer, Pure Storage UK Limited ("Pure"). He estimated that trial at two days and gave the directions that had been agreed between the parties aimed at it coming on in a trial window between 18 and 22 May 2015. The availability of time for a short hearing at the end of term had been discussed with the clerk of the lists before the application was called on for hearing.
The judge gave a brief judgment in which he said that he was ordering a speedy trial of the issues arising from Mr Petter's claim against EMC Europe because "it is, in my opinion, important for him and his employers to know whether or not he can lawfully be employed doing the work he is now doing for them". That was also said in a minor respect to be in the interests of the efficient running of the UK economy. The judge's second reason was that EMC Europe had declined his invitation to undertake not to bring a civil claim against Mr Petter in relation to alleged breaches of clauses 14 and 15. In those circumstances, he thought that Mr Petter was entitled to know his legal position for certain.
EMC Europe challenges the judge's decision on the grounds that the judge was wrong to think that the case fell into a particular category of case that was fit for expedition, when EMC Europe had neither sought nor obtained an injunction to stop Mr Petter working for Pure, and his only legitimate concern was that he might be sued for damages in the future. The judge failed to apply the principle that expedition will only be ordered where there is objectively justified urgency, which there was not in this case. EMC Europe then contended that the matters the judge did take into account were irrelevant and that he failed to take into account relevant matters such as Mr Petter's delay between the dispute rising on 5 February 2015 and the issue of proceedings on 13 March 2015 and his attempt to gain a tactical advantage in relation to the Massachusetts proceedings.
Factual background
I can deal with the relevant factual background relatively briefly. Mr Petter was originally employed by EMC Europe in February 2004. Over the years, he was promoted, until on 13 November 2008, he was made director of Global Accounts for the "EMEA" regions. At that stage, he entered into a new contract of employment which included clauses 14 and 15 as follows:
"14. LIMITED NON-COMPETITION
As long as you are employed by [EME Europe], you shall devote your full time and efforts to [EMC Europe] and shall not participate directly or indirectly, in any capacity, in any business or activity that is in competition with [EMC Europe]. During your employment with [EMC Europe] and for the twelve month period following the effective date of your termination or resignation from [EMC Europe], you agree not to directly or indirectly develop, produce, market, solicit or sell products or services competitive with products or services being offered by [EMC Europe]. (You shall not be considered in competition unless you have an ownership interest amounting to at least 1% in the enterprise, whether direct or indirect by way of opinion or otherwise, or an officership, directorship or other policy making executive position with the competing enterprise).
15. RECRUITING COMPANY EMPLOYEES
For the twelve month period following the effective date of your termination for any reason or resignation from [EMC Europe], you agree not to directly or indirectly recruit, solicit, induce or attempt to induce any employees of [EMC Europe] to terminate, alter or modify their employment relationship with [EMC Europe]."
After negotiations with Pure which had lasted some weeks, on 12 January 2015, Mr Petter accepted Pure's offer of employment. On 15 January 2015, Mr Petter resigned from EMC Europe. On 5 February 2015, Mr Petter attended an "exit interview" with EMC Europe at which he said he would honour the non-solicitation covenant in clause 15 though it was unenforceable, but Mr Petter and EMC Europe disagreed about the enforceability of clause 14. On 14 February 2015, Mr Petter's employment by EMC Europe terminated and on 16 February 2015 his employment with Pure began.
On 27 February 2015, as I have said, EMC Corp began the Massachusetts proceedings against Mr Petter, and on 13 March 2015, Mr Petter issued these proceedings and informed the defendant that he would seek an expedited trial. There was no pre-action correspondence heralding either claim.
On 17 March 2015, Mr Petter issued his application notice seeking a speedy trial. He issued a new application seeking expedition of only his claims against EMC Europe on 20 March 2015. Mitting J made the order that is now appealed on 23 March 2015, and refused permission to appeal on the ground that he had ordered a speedy trial for "conventional reasons". Burnett LJ granted permission to appeal and ordered an expedited hearing of that...
To continue reading
Request your trial
-
Capita Plc and Another v Richard Darch and Others
...by the Court of Appeal in WL Gore & Associates GMBH v Geox SpA [2008] EWCA Civ 622, at [28] per Neuberger LJ (as he then was); and Petter v EMC Europe Ltd [2015] EWCA Civ, 480, at [17], per Vos LJ: "expedition will only be justified on the basis of real, objectively viewed, urgency. It is......
-
Vodafone Ltd v Secretary of State for Foreign, Commonwealth and Development Affairs
...be answered in a clear and precise way.” 146 As for expedition, both parties cited the list of factors approved in Petter v EMC Europe [2015] EWCA Civ 480, by Vos LJ at [12]: “The applicable principles were then succinctly expressed by Neuberger LJ (as he then was) in WL Gore and Associate......
-
Neurim Pharmaceuticals (1991) Ltd v Generics UK Ltd T/A Mylan
...the leading case is Gore v Geox [2008] EWCA 622 at [25], in which the CA identified four factors (repeated in Petter v EMC Europe [2015] EWCA Civ 480 at [12]): a) whether there is good reason for the expedition; b) whether expedition would interfere with the good administration of justice;......
-
Jump Trading International Ltd v Damien Couture
...in the lifetime of the covenant and before much direct competition with the claimant has taken place: see Petter v EMC Europe Limited [2015] EWCA Civ 480. No prejudice to either defendant has been suggested, and the enforceability of clause 19.1 ought not to require extensive evidence. Whi......