Sectrack Nv v (1) Satamatics Ltd (2) Jan Leemans
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE FLAUX,Mr Justice Flaux |
| Judgment Date | 19 December 2007 |
| Neutral Citation | [2007] EWHC 3003 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2007 FOLIO 1083 |
| Date | 19 December 2007 |
[2007] EWHC 3003 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
the Honourable Mr Justice Flaux
Case No: 2007 FOLIO 1083
Mr Paul Lowenstein and Mr Rajesh Pillai (instructed by Masseys LLP) for the Claimant
Mr Mark Platts-Mills QC and Ms Lindsay Lane (instructed by Allen & Overy LLP) for the 1 st Defendant
Mr Edward Cohen (instructed by Ross & Craig) for the 2 nd Defendant
Hearing dates: 5 th and 6 th December 2007
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.
Mr Justice Flaux
Introduction and background
The issues which I have had to resolve at the hearing on 5 and 6 December 2007 concern whether or not an injunction granted in favour of the Claimant by Aikens J (as subsequently amended by consent) should be continued until trial or further Order and, if so, on what terms.
The Claimant, SecTrack, is a Belgian company engaged in business as a global wholesaler of electronic satellite location, navigation and tracking products. It was an independent company until February 2007, when it was purchased by a Canadian company BSM Technologies Inc. (“BSM”), of which Mr Nick Cirella is President and Chief Executive Officer. The First Defendant, Satamatics, is an English company based in Tewkesbury in Gloucestershire, of which Mr Peter Chisholm is the Chief Executive Officer. It carries on business as a manufacturer and supplier of satellite communication equipment and solutions (“the Products”) and a provider of Airtime services for the Products. Since 2001, the Claimant has been one of the distributors of the First Defendant's Products pursuant to a series of written contracts culminating in the relevant Distribution Agreement dated November 2005.
Until his resignation on 24 May 2007 and the termination of his employment on 30 May 2007, the Second Defendant, Jan Leemans, a Belgian national, was employed by the Claimant as a senior Business Development Manager, and was one of the two individuals there who had responsibility for sales of Terminals and Airtime to the Claimant's Customers (the other being Mr Martens). In June 2007, the Claimant discovered that Mr Leemans had gone to work as a sales agent for the First Defendant and that he had incorporated a Belgian service company named Marlee BVBA as the vehicle by which the First Defendant was to employ him. He is thus being employed (albeit via an agency company) to perform the same function for the First Defendant as he used to perform for the Claimant. It is fair to say that since the Claimant accepts that the anti-competition clause in the Second Defendant's contract of employment (which is governed by Belgian law) is unenforceable, there is nothing wrongful in his doing this per se.
Also in June 2007, shortly before the application for an injunction made without notice to Aikens J, the Claimant discovered that the First Defendant through its agent the Second Defendant had been approaching some of the Claimant's customers with a view to selling the First Defendant's products and services to them direct, effectively cutting out the Claimant. Three particular matters caused the Claimant concern. As a consequence of access it obtained to e-mails sent and received by the Second Defendant during June 2007, the Claimant discovered that the Second Defendant had embarked on a visit to Australia and New Zealand on behalf of the First Defendant and either had visited or was proposing to visit a number of customers of the Claimant. This mirrored a visit Mr Martens of the Claimant had made in November 2006. The Claimant was concerned that the Second Defendant was using on behalf of the First Defendant confidential information about the Claimant's customers to obtain a competitive advantage.
The second matter of concern was that (again through the e-mails it accessed) the Claimant discovered that the First Defendant was in the process of entering a contract direct with M2M, one of the Claimant's major customers in Russia. This was being negotiated by the Second Defendant with M2M using confidential information gained when he was employed by the Claimant. It subsequently transpired that the First Defendant did indeed sign a contract with M2M on about 26 June 2007. Mr Chisholm says this was only done after M2M told the First Defendant that on 8 June 2007 it had informed the Claimant orally that it was terminating their relationship. Mr Arcari on behalf of the Claimant denies that any such conversation took place with representatives of M2M.
The third matter concerned destruction of data from computers by the Second Defendant and by Mr Tom Boschman. At the time of the application to Aikens J, Mr Boschman was another employee of the Claimant who was in negotiation with the First Defendant concerning future employment by it. In the event, although Mr Boschman left the Claimant's employment after the injunction was granted, he went to work elsewhere. However, what the Claimant discovered was that the Second Defendant had deleted data from his office laptop computer. At the same time the Claimant discovered that Mr Boschman had installed aggressive deletion software on his office computer.
The Second Defendant had also had a Blackberry when employed by the Claimant. There is some dispute as to whether this was a present from Mr Martens which he should have been entitled to keep. After an initial reluctance to hand back the Blackberry, he did so on 15 June 2007, telling Mr Martens that the Blackberry was frozen or locked. The Claimant arranged for software to be reinstalled in order to unlock it and on 21 June 2007, Mr Van Hoeylandt, an employee of the Claimant who is an IT specialist managed to unlock the Blackberry. At that point it automatically downloaded 96 e-mails received by the Second Defendant's “mac” e-mail account since 13 June 2007. These included a number of e-mails which the Claimant contends implicate the Second Defendant in the misuse of its confidential information. All data prior to 13 June 2007 had been deleted, the Claimant believed deliberately. The fact that the Blackberry was able to retrieve e-mails sent to the “mac” account also demonstrated that at some stage and without the Claimant's knowledge or permission, the Second Defendant had reconfigured his Blackberry so that it received e-mails from that account.
It was feared by the Claimant that if the Defendants were on notice of the application, there would be further destruction of evidence. This led the Claimant to make the application on a “without notice” basis.
Some of the Second Defendant's e-mails from June 2007 which the Claimant used to mount its application came from a private e-mail account to which it appears an anonymous “hacker” gained access. Although there is some complaint about this, it is somewhat muted and it is not suggested that the Claimant should not have been entitled to rely upon that material. In any event the fact that they had been obtained by hacking was properly disclosed to Aikens J.
Following a hearing lasting about an hour and a half on 2 July 2007 at which the Claimant was represented by Mr Paul Lowenstein of Counsel (who also represented it before me), Aikens J granted the relief sought. In summary, this consisted of (a) injunctions restraining the Defendants from communicating in any way for any purpose with the Claimant's customers as set out in Schedule D to the Order and from using the Claimant's Confidential Information; (b) orders for the preservation of all records (including computer data); (c) orders for disclosure within 48 hours of all documents and records containing or referring to the Confidential Information and all communications since 1 January 2007 between either of the Defendants and the Customers set out on the Schedule and between the Defendants themselves; (d) orders for delivery up of such documents and records within 5 working days.
The present applications
The Order made by Aikens J included a Return Date for the inter partes hearing of 10 July 2007, 8 days after he granted the injunction and related Order. On that Return Date, by consent, David Steel J adjourned the return date to 26 September 2007 and made directions for service of evidence. Thereafter the parties agreed a two month moratorium with a view to settling their dispute. This was reflected in a Consent Order of 8 October 2007 which adjourned the Return Date to the first available date after 23 November 2007, with a time estimate of 1 1/2 to 2 days. In the event, the parties were unable to resolve their differences and the Return Date was fixed for 5 and 6 December 2007.
The form of the Order made by Aikens J had been such as to preclude all communications between the First Defendant and the customers in Schedule D to the Order, who originally numbered 109. This would mean that technically the automatic communications on a day to day basis between the customers' D+ terminals and the First Defendant's Message Handling System (all of which was part of the service the Claimant had sold to its customers) would be caught by the injunction. This had never been the intention of the Claimant, so a variation was agreed to permit this, which was embodied in a Consent order made by Cooke J on 1 August 2007.
A variation was agreed at the same time which permitted the First Defendant to communicate with customers who raised technical enquiries with the First Defendant, but only on the basis that the enquiries were referred back to the Claimant to deal with. It had also...
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