Team Tours Direct Ltd v Aspire Sports Tours Ltd
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 19 June 2018 |
| Neutral Citation | [2018] EWHC 1541 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: D40CF007 |
| Date | 19 June 2018 |
[2018] EWHC 1541 (QB)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
CIRCUIT COMMERCIAL COURT
Cardiff Civil Justice Centre,
2 Park Street, Cardiff, CF10 1ET
HIS HONOUR JUDGE Keyser Q.C.
sitting as a Judge of the High Court
Case No: D40CF007
Andrew Butler Q.C. (instructed by Acuity Legal) for the Claimant
Robin Sharpe (the Second Defendant) on his own behalf and on behalf of the First Defendant
Hearing dates: 29, 30, 31 May 2018
Judgment Approved
H.H. Judge Keyser Q.C.:
Introduction
The claimant, Team Tours Direct Limited (“TTD”), carries on the business of the provision of sports tours and holidays. It was incorporated in 2004 to carry on a business that its chairman, Mr Terence O'Neill (“Mr O'Neill”), had been carrying on as a sole trader since 1996.
In February 2014 the second defendant, Mr Robin Sharpe (“Mr Sharpe”), commenced employment for TTD as a sales executive. His son, Mr Ryan Sharpe, commenced employment with TTD as a sales representative at about the same time. In April 2014 Mr Sharpe became the claimant's operations manager. At the end of 2014 Ryan Sharpe left TTD's employment. During 2015 the relationship between Mr Sharpe and Mr O'Neill deteriorated. On 26 January 2016 Mr Sharpe was suspended from his duties while a disciplinary investigation was carried out. On 1 March 2016 he was summarily dismissed from his employment.
On 1 February 2016 the first defendant, Aspire Sports Tours Limited (“AST”) was incorporated; the application for incorporation was filed on 29 January 2016, three days after Mr Sharpe was suspended. The issued shares in AST were held equally by Mr Sharpe and Ryan Sharpe, and Ryan Sharpe was the sole director. Subsequently Mr Sharpe was appointed as a director on 4 April 2016. Ryan Sharpe resigned as a director of AST on 24 March 2017 and at about the same time transferred his shares to Mr Sharpe. Since the mid part of 2016 AST has carried on a business in competition with that of TTD.
In these proceedings, TTD alleges that AST has carried on its business with the use of information that is confidential to TTD and has breached its copyright in promotional material, and it alleges that Mr Sharpe has acted in breach of the obligations of his contract of employment, both before and after its termination. In respect of these matters it seeks an award of damages. It also claims an injunction, although no application was made for an interim injunction and at this late stage the claim for a final injunction has not been pursued with vigour.
AST and Mr Sharpe dispute the claims against them on various grounds, as I shall explain. Mr Sharpe also alleges that his summary dismissal was wrongful and in breach of contract, and he counterclaims damages in respect of the pay which he says he ought to have received during the period of notice to which he was entitled.
In the circumstances as summarised shortly above, a number of issues fall to be determined. I shall set them out and consider them in turn. This judgment will not contain a detailed narrative of the facts or a recital of large parts of the evidence, though for convenience I shall set out an account of the events surrounding the termination of Mr Sharpe's employment. For the avoidance of doubt, however, I make it clear that in considering any one issue I have borne in mind the totality of the evidence that has been adduced before me.
I shall also summarise in very broad terms my view of the principal witness evidence, which involves anticipating some of the findings set out later in this judgment. Mr Sharpe and his son, Ryan Sharpe, are two of a kind, in that both of them suffer from the weakness of trying to be clever and end up being too clever by half, as Mr Butler Q.C. for TTD put it to one of them. In the course of their evidence they made admissions only to the extent that was unavoidable in the light of compelling proof; in Ryan Sharpe's case, not even then. Despite their denials, it is obvious that they attempted deliberately to set up a rival business with the use of all such advantages in terms of TTD's contacts, databases, files and promotional material as available to them. However, my assessment of the evidence for TTD is not altogether favourable. In particular, I have come to the view that, having correctly assessed what Mr Sharpe was up to, and being both concerned and annoyed at being faced with illegitimate competition, Mr O'Neill chose to advance a claim for damages that went well beyond the bounds of what could properly be advanced. In his closing submissions, Mr Sharpe complained that TTD's conduct of these proceedings had been designed for the purpose of driving a competitor out of business. In my judgment, that is indeed the case.
Events concerning dismissal
In November 2015 Mr O'Neill gave Mr Sharpe and his assistant, Mr Johnathan Hopkins, an oral warning for making a bulk reservation of hotel accommodation without first obtaining comparative quotations with a view to finding accommodation at a lower price.
In January 2016 Mr Sharpe advised Mr O'Neill that TTD was over-committed for accommodation for a rugby event in the UK and should attempt to mitigate its potential liability by selling five hundred beds cheaply. On 24 January Mr O'Neill responded that his own examination of the figures showed that the accommodation was in fact almost sold out; Mr Sharpe had failed to take account of under-occupancy, which is where customers book hotel rooms for occupation by fewer people than there are available beds and pay a supplement accordingly (e.g. a single person's supplement in a double room). Mr Sharpe replied on 25 January with an exculpatory email. The reply did not find favour with Mr O'Neill: “This is the biggest lot of nonsense I have read in a long time” (email to Mr Sharpe on 25 January). Mr O'Neill's view was that, instead of owning up to a mistake, Mr Sharpe was seeking to get out of difficulty by misleading him with false explanations. The details of the email exchanges are of no relevance to this case. But by the evening of 25 January Mr Sharpe was telling Mr O'Neill that he would not be “bullied” into retracting his explanations.
That was the final straw for Mr O'Neill. Very early on the morning of 26 January he sent to Mr Sharpe a very long email. It said that he would not accept the “disgusting” accusation that he was a bully and unwilling to seek to resolve matters without casting blame; it reiterated his views regarding the calculations of under-occupancy of hotel accommodation; and it stated that Mr O'Neill had no option but to suspend Mr Sharpe on full pay while a “full investigation into [his] conduct and accusations” was carried out. The email concluded:
“Please do not access any of your emails or pipedrive as of immediate effect or any other work related documents or information be it on line or manually until a full investigation into your conduct and accusations are complete, furthermore please do not come to the office at any time during office hours or out of office hours. I want to remind you of the fact that as a company we are able to trace all access to any company emails, pipedrive or indeed any on line access to company data or any attempts to down load any documents, in addition access reports to the office can be obtained should we require them.”
At 7.57 a.m. UK time on 26 January (Mr O'Neill was in Kenya), Mr Sharpe replied by an email that ended:
“With regard to your request not attending the office during my suspension I will inform you that I have personal possessions within the office which I will need during this period, I am giving you notice that I will be attending the office at 8.30 this morning to remove the items, of course should you wish for another member of staff to be there during this time I am more than happy.”
At 9 a.m. UK time that day Mr O'Neill replied:
“[T]he fact that you have advised you have entered TTD offices with just thirty three minutes notice and unattended without another member of staff present having been given direct instructions not to go into TTD offices further indicates your unacceptable actions and out of control conduct. I will be investigating your entry of TTD offices and taking advise (sic) on this matter relating to my next course of action.”
Mr Sharpe had indeed attended at TTD's offices at about 8.30 a.m. on 26 January, as he had said he would. In cross-examination he accepted that his conduct in attending in direct contravention of an instruction was not as conciliatory as it might have been, though he complained that Mr O'Neill had not given him any opportunity to attend under supervision and insisted that he had removed only personal possessions of which he had need. When he attended at TTD's offices, only one other member of staff was present, Mr Bradley Coles-Perkins. Unbeknown to Mr Coles-Perkins, Mr Sharpe recorded their conversation on his mobile telephone. The transcript shows that Mr Sharpe made a point of stating that he was taking only items belonging to him and of showing Mr Coles-Perkins what he was taking. Mr Sharpe relies on this to confirm his own evidence. For TTD, Mr Butler says that the recording proves nothing regarding what was taken but, on the contrary, raises the suspicion that Mr Sharpe was removing something that he knew he ought not to remove and was setting up a defence in advance.
On the afternoon of 26 January 2016, Mr O'Neill sent to Mr Sharpe by email a letter that, among other things, required the return of Mr Sharpe's company laptop, mobile telephone and car by 5 p.m. the following day. At 8.32 a.m. on 27 January Mr Sharpe responded that the items would be available for collection at his home address that...
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...of profit. Therefore no damages are awarded under this head. Jacqueline Wilson Judge 1 12 edn 2 [1951] 84 CLR 377 3 Exhibit MA6 4 [2018] EWHC 1541 (QB) 5 [2015] IEHC 57 ...
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...of profit. Therefore no damages are awarded under this head. Jacqueline Wilson Judge 1 12 edn 2 [1951] 84 CLR 377 3 Exhibit MA6 4 [2018] EWHC 1541 (QB) 5 [2015] IEHC 57 ...