Mark Richmond v Selecta Systems Ltd
| Jurisdiction | England & Wales |
| Judge | Paul Matthews,HHJ |
| Judgment Date | 14 June 2018 |
| Neutral Citation | [2018] EWHC 1446 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: C31BS071 |
| Date | 14 June 2018 |
[2018] EWHC 1446 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: C31BS071
Charlie-Newington-Bridges (instructed by Kitsons LLP) for the Claimant
Stewart Chirnside (instructed by Shakespeare Martineau) for the Defendant
Hearing dates: 20–23 March, 9 May 2018
Introduction
This is my judgment on claims made at trial by the claimant against his former employer, the defendant company. The primary claim is in respect of an alleged breach of a contract said to have been made between the parties when the claimant left the defendant's employment. A secondary claim concerns interference with and damage to the claimant's online accounts with internet service companies. Both claims arise out of events which took place in January and February 2016. There is also a counterclaim by the company.
In the briefest summary, the claimant says that an agreement was reached between the parties as to the terms upon which the claimant was to give up his employment, but that the defendant has not honoured the agreement in large part. The defendant denies that any such agreement was reached. In addition, the claimant says that the defendant interfered with the claimant's personal internet accounts, that is, his personal AOL email account, his Apple iTunes account, his LinkedIn account and his WhatsApp account, so that these are no longer accessible to him (though he has since set up a new Apple ID). The defendant accepts some (though not all) the interference alleged, but says that this was authorised by the claimant or was otherwise justified. Finally, the defendant makes a counterclaim for the return of a Mercedes motor car of which the claimant had been allowed the use during his employment, but which he has retained. The defendant says that this car became his pursuant to the agreement he alleges.
Procedure
The claim form was issued on 22 September 2016, and the amended particulars of claim were finally served on 17 May 2017. An amended defence and counterclaim were served on 1 June 2017. The amended reply and defence to counterclaim was served on 14 June 2017. Directions were given by District Judge Rowe on 6 March 2017. In particular, her order included a direction that no permission was given for expert evidence, and another that the trial time estimate was 4 days, including half a day for judgment, but not including reading time. After having read the papers before the trial began, I said at the beginning that I thought that this timetable was optimistic. In an effort to make the case fit the allotted time, I limited the time available for cross-examination of the two principal witnesses (one on either side) to approximately one day each. I am satisfied that this was sufficient to allow the important differences in their evidence to be explored. In the event, however, the trial still took five days rather then four, having to be adjourned after the fourth day to a final day in May 2018, and judgment was reserved rather than given there and then. I do not criticise anyone for the underestimate of time, but it is nevertheless unfortunate. At the trial the claimant was represented by Charlie Newington-Bridges and the defendant by Stewart Chirnside. I am grateful to them both for their submissions.
At the outset, two matters were raised for my ruling. One was in relation to the timing of a hearsay notice concerning the evidence of one of the witnesses for the claimant, Mr Scot Starkey. It was argued that this had been served out of time and that the claimant needed relief from sanctions. The other was in relation to the admissibility of evidence of another of the claimant's witnesses, Mr Peter Creber, which was objected to on the basis that it was expert evidence for which no permission had been obtained. At convenient moments in the trial, I gave rulings in relation to each of these matters, with reasons for these rulings. In relation to the hearsay notice I considered that there was no need to extend time for the service of the hearsay notice but that if this was a case where relief from sanctions was required, then it should be given. Obviously the court can give less weight to hearsay evidence than to live evidence. In relation to Mr Creber, I ruled that most of the evidence which he proposed to give in his witness statement was evidence of fact rather than of opinion, and that no permission was needed to adduce it. However, there were a few sentences in his witness statement which I ruled inadmissible as opinion evidence.
Civil decision-making
This is a case where there is a very sharp conflict of evidence about certain events that are alleged to have taken place. Sometimes a conflict of evidence is due simply to a mistake, or a memory failure, by one or both parties. To a certain extent, this may also be the case here. But in other respects it is more difficult, and it may be that on certain points either one witness or another is not telling the truth. It is therefore of some interest to the parties (being laypeople rather than lawyers) to set out in brief summary form how the court decides civil cases of this kind.
Judges do not have super-human powers. On the contrary, they are human, and fallible, like any others. That is one reason why there are courts of appeal. So judges decide what are the facts in a particular case in accordance with certain principles. I am not going to set out all the rules here. The lawyers involved in this case will be well aware of them. But there are three general points which the parties may not know and which I should draw to their attention. The first is that, in our system, it is for the parties to seek out and place before the court the material which they consider will assist the court and promote their case. It is not for the court to investigate of its own motion. Other relevant witnesses or material may possibly exist somewhere else, but it is not the duty of the court to look for them or it. In general terms (and subject to the third general point to which I shall come), the court makes a decision only on the material put before it by the parties. This makes the process fair, in that in that way each side can see, evaluate and criticise the other's evidence.
The second point is that, in English civil procedure law, one party or the other bears the burden of proving any particular matter in issue between them. If the person bearing that burden satisfies the finder of fact (in this case the judge), after considering the material before the court, that on the balance of probabilities a thing happened, then, for the purposes of deciding the case, it did happen. If that person does not so satisfy the fact finder, then that thing did not happen. The system is binary, and the judge decides on the basis of the burden of proof. There is thus no room for maybe: see Re B (Children) [2009] 1 AC 11, [2], per Lord Hoffmann. It is of course the judge's job to assess the credibility of the witnesses, and to choose between conflicting evidence, if he or she is able to do so. But if, after having attempted to resolve the issue, the court is unable to make a positive finding on the evidence, that issue can be resolved by reference to the burden of proof: Constandas v Lysandrou [2018] EWCA Civ 613, [22]–[27].
The third point is that, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the Court to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing: see Wisniewski v Central Manchester Health Authority [1998] PIQR 324, CA; Jaffray v Society of Lloyds [2002] EWCA Civ 1101, [406]–[407]; Thames Valley Housing Association v Elegant Homes (Guernsey) Ltd [2011] EWHC 1288 (Ch), [19].
Added together, these points mean that the decision of the court as to what happened is not necessarily the objective truth of the matter or matters in issue. Instead it is the most likely view of what happened, based on the assessment by the court of the witnesses and the other evidential material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to.
Finally, although judges must take into consideration all the evidence presented and weigh all the arguments made, they are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered: Weymont v Place [2015] EWCA Civ 289, [6]. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence: see egBiogen Inc v Medeva plc [1997] RPC 1, 45. The conclusions to which I have come below must be seen in that light.
Witnesses
I heard from the following witnesses. For the claimant I heard from Mark Richmond, the claimant; Valerie Babington, his wife; Lisa Fogarty, a former work colleague at the defendant (now self-employed); and Peter Creber, a non-lawyer partner in the claimant's solicitors. For the defendant, I heard from Mark Weihe, the managing director of the defendant at the time of the events in question, and still the majority shareholder in the company; Jane Bushell, the head of human resources at the defendant; Robert Heeley, general manager at the defendant; Andrew Green, the defendant's current sales director (in succession to the claimant); and Stephen Keyte, an employee of the defendant (and formerly...
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