Pharmagona Ltd v Sayed Mostafa Taheri
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 17 February 2020 |
| Neutral Citation | [2020] EWHC 312 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2019/004168 |
| Date | 17 February 2020 |
[2020] EWHC 312 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: QB/2019/004168
Geraint Jones QC (direct access) for the Claimant
1 st Defendant in person
2 nd Defendant did not appear and was not represented
Hearing date 30 th January 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application for an interim injunction and for delivery up, although I shall have more to say about the terms of the draft order attached to the application notice.
The Claimant is a pharmaceutical company selling its products in the UK and abroad. The Defendants were formerly employees of the Claimant. They are husband and wife. The 1 st Defendant was the Claimant's IT and telecommunications planner/manager. The 1 st Defendant's employment began in October 2015 and continued until 2 nd February 2018. The 2 nd Defendant was an office manager of the Claimant from August 2016 until 2 nd February 2018.
The claim is for an injunction to restrain the Defendants from using or disclosing the Claimant's confidential information and for damages. The Claim was issued on 22 nd November 2019. Particulars of Claim were served with the claim form or shortly afterwards.
The application notice which I am considering was also issued on 22 nd November 2019.
There are also linked proceedings issued in the Manchester Business List ( Pharmagona Ltd v Taheri and Mohammadi Case No. E30MA106 ‘the Manchester action’) in which the Claimant sought substantial damages against these Defendants.
The Manchester action had come on for trial before HHJ Stephen Davis (sitting as a Deputy High Court Judge) on 25 th October 2019. He adjourned the trial and made orders for disclosure. In particular, by paragraph 3 of his order he required the Defendants to produce specified bank statements. By paragraph 10 of his order, he required the Defendants to provide particulars of the unlawful activities which they alleged the Claimant had been engaged in.
There was a further hearing in the Manchester action before HHJ Halliwell (sitting as a Deputy Judge of the High Court) on 13 th December 2019. He found that neither Defendant had complied with the disclosure orders of 25 th October 2019. He set a new date (19 th December 2019) by which the Defendants were required (a) to provide letters of authority to various banks at which they held accounts and (b) to provide the particulars required by paragraph 10 of HHJ Stephen Davis's order. Judge Halliwell further provided that in default the Defendants would be debarred from defending the Manchester action.
The Claimant in the Manchester action alleged that the Defendants had not complied with Judge Halliwell's order. The Defendants maintained that they had. On 10 th January 2020 Judge Halliwell had a trial of that issue or rather of the alleged failure to comply with paragraph 3 of the order of HHJ Stephen Davis of 25 th October 2019 (failure to provide letters of authority to the banks). He heard oral evidence from the 1 st Defendant and from Ms Hanaee. He reserved judgment.
On 17 th January 2020 Judge Halliwell handed down a reserved judgment [2020] EWHC 66 (Ch). He subsequently made consequential orders on 23 rd January 2020. By those orders Judge Halliwell
i) Found the defendants to be in breach of the previous ‘unless’ order (which had been made on 11 th December 2019), since, in breach of that order the Defendants had not provided authorisation to their banks to disclose certain of their bank statements.
ii) Ordered that judgment should be entered against both defendants for £454,112.58.
iii) Refused to grant a stay of the unless order or to reconsider the same.
iv) Ordered that earlier freezing orders should continue.
v) Vacated the trial of the Manchester proceedings which had been due to take place in February 2020.
vi) Set a timetable for written submissions on costs and for any application for permission to appeal.
It seems that the Defendants have also brought claims in the Employment Tribunal in Manchester ( Sayed Taheri and Barareh Mohammadi v Pharmagona Ltd. Case No 2411463 and 2411458/2018) alleging unfair dismissal, detriment for ‘whistleblowing’ and, in the case of Mrs Mohammadi, discrimination.
On 28 th January 2020 the 1 st Defendant made a witness statement objecting to the present application being heard on 30 th January 2020. He said that the defendants had had only one day's notice of the hearing of the application and that this was in breach of CPR r.23.7(1)(b) which requires an applicant to serve an application notice at least 3 days before the application is to be heard. He said that the Defendants had not had the opportunity to instruct counsel. He also said that he and his wife lived in Manchester. They had a child who was 1 1/2 years old and had been ill. In the time available they had not been able to make appropriate arrangements to attend a hearing in London at such short notice.
The Claimant became aware of Mr Taheri's witness statement on 29 th January 2020 and, on that date, Somaiyeh Hanaee, the Claimant's head of finance, made a witness statement in reply. She exhibits a certificate of service dated 9 th December 2019 to show that various documents (including the application notice) were sent by post to the Defendants at 2 Boddens Hill Road, Heaton Mersey, Stockport, SK4 2DG. She also exhibits a certificate of service on 27 th November 2019, to show that service was effected on 29 th November 2019. She says that the documents were also sent by ‘signed for’ post and she produces the receipt of Mr Taheri on 26 th November 2019. Ms Hanaee therefore disputes that the Defendants have had insufficient time to prepare their evidence for the hearing on 30 th January.
The application notice had said on its face that the application would be placed in the warned list for the week commencing 9 th December 2019. Plainly, the application was not heard in that week. Ms Hanaee also exhibits an email from the court dated 19 th December 2019 to her counsel's clerk to say that the case would instead be listed on 30 th January 2020. In a subsequent email in which the date was confirmed and which enclosed an amended version of the application notice with the new date, the Court said to the Claimant's counsel's clerk, ‘Please can your solicitors ensure that the Defendants are served with a copy.’ Counsel's clerk responded on 20 th December 2019, ‘There are no solicitors on record. The Claimant is in person but engages counsel on a public access basis as and when needed. We can't contact the defendants – please could the court inform the defendants of the hearing date? Litigants in person do not use the CE filing system.’
While counsel's clerk may have felt inhibited about serving the Defendants, that could not apply to the Claimant itself. It plainly did have an address for the Defendants (as Ms Hanaee's witness statement showed, the Claimant had served the claim form, the particulars of claim and the original application notice at that address). The Defendants were entitled to know the revised date of the hearing and it was plain from the email from the court to counsel's clerk that the court was not going to provide that notice.
In the event, the 1 st Defendant was able to and did attend the hearing. The absence of formal notice of the revised hearing date was of limited relevance (save perhaps in relation to costs).
The pleadings in the present claim
The Claimant pleads that both defendants were subject to implied and express terms of their contracts of employment to preserve the confidentiality of any confidential information which they encountered in the course of their work and an implied term not to access use or disclose confidential information of the Claimant after their employment ceased. Paragraph 5 of the Particulars of Claim lists various categories of confidential information relevant to the action. The Defendants were summarily dismissed on 2 nd February 2018 when, it is alleged, it was discovered that they had been stealing money from the Claimant. Paragraph 5 of the Particulars of Claim alleges that the 1 st Defendant criminally hacked into the Claimant's computer system using a facility called ‘Team-viewer’ on 5 th or 6 th February 2018 and again on 26 th/27 th April 2018. It is said that he then did a ‘down-load dump’ of the Claimant's electronically stored records including the confidential items listed in paragraph 5. It is alleged that his access to the Claimant's computer system left an electronic trace. When the 1 st Defendant realised this, it is alleged that he admitted in the course of his 9 th witness statement in the Manchester action that he had downloaded various materials from the Claimant's computer system. It is alleged that the 1 st Defendant has disclosed information which he obtained by these hacks to his wife, the 2 nd Defendant and she therefore knew or ought to have known that she had received confidential information.
In the Manchester action the Defendants had been required to specify any alleged breach of the law which they alleged the Claimant had been involved in, but, paragraph 15 of the present Particulars of Claim alleged that the Defendants had failed to do so. The Claimant alleges that the allegations (by the Defendants in the Manchester action) that the Claimant had acted unlawfully was intended to deflect attention from the Defendants' thefts of the Claimant's money. The prayer sought an injunction to restrain the disclosure of...
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Nihal Mohammed Kamal Brake v Geoffrey William Guy
...documents and information the subject of this claim pending trial, and also to (ii) the decision of Nicol J in Pharmagona Ltd v Taheri [2020] 1 WLR 3577. 15 In his decision, Mr Jarvis QC said: “70. Although Spycatcher [ AG v Observer Ltd [1990] 1 AC 109] deals with the disclosure which is r......