Tim Russ & Company v Robertson & Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MANN |
| Judgment Date | 05 April 2011 |
| Neutral Citation | [2011] EWHC 3470 (Ch) |
| Court | Chancery Division |
| Date | 05 April 2011 |
| Docket Number | Claim No: HC11C00721 |
[2011] EWHC 3470 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand,
London WC2A 2LL
Mr Justice Mann
Claim No: HC11C00721
MR HODSON (instructed by Lennon & Co) appeared on behalf of the Claimant.
The First Defendant appeared in person.
Tuesday, 5th April, 2011
The usual form on these occasions is for the judge to read out his judgment and to announce his conclusions at the end. However, on some occasions it is inappropriate for the parties to have to wait until the end of the judgment in order to find out what the result is, so I will first of all, by way of summary, announce my result and then I will give my judgment, which is the reasons for it. In substance, my findings in this judgment are as follows.
First, Mr Robertson's contract was varied so as include the provisions relied on by the claimant in this case. Second, I find that Mr Robertson has been in breach of his obligations not to solicit customers. That will make sense when the rest of this judgment is given. I find he is in limited breach of an obligation not to misuse confidential information belonging to his employer. I find that he is not in breach of an obligation not to solicit employees of the firm to go and work for him and, perhaps most importantly for the purpose of this case, I find that the area covenant which seeks to restrain Mr Robertson from operating within a 5 mile radius of the claimant's Haslemere office for a 12 months' period after the term of his employment ceases to be void and unenforceable as being in restraint of trade. As a result of that, my view is that certain limited injunctive relief should be ordered against Mr Robertson, but, crucially from his point of view, there will be no injunction which restrains him from operating as an estate agent from the premises which he has recently taken by a lease.
That is a summary so that the parties and, in particular, Mr Robertson, know where this judgment is going rather than having to guess where it is going as the judgment goes along. What follows now is my judgment in the case.
The nature of this action is as follows. Mr Robertson was, as is common ground, an employee of the claimant firm. The claimant firm operates an estate agency business inter alia from Haslemere. He gave his notice on 26th January of this year. He was immediately put on gardening leave for the expiry period of his notice. Once that had expired, he sought to commence operations as an estate agent from premises which are a mile and a half away. The claimant sought to restrain him from doing so pursuant to an obligation in the contact which, so far as valid, would have had that effect. They also make complaints against Mr Robertson that he has misused confidential information and solicited an employee. A letter before action was sent on 9th March, which is promptly enough. That did not produce any modification of his behaviour on the part of Mr Robertson and, in the circumstances, the claimants more or less immediately started these proceedings. The claim form was issued on 16th March. It was presumably served very shortly thereafter, and by an application notice of the same date the claimants sought interim relief in the Interim Applications Court. The application came on before Kitchin J on 23rd March. He was concerned that the matter would more appropriately be dealt with by a speedy trial and was able to ascertain from the listing authorities that a judge could be made available for what was thought to be a one-day trial in the next week, i.e. last week. The action duly came on for trial, starting on Friday of last week, April 1st. It took longer than a day, and the evidence and submissions finished yesterday. There was no time for me to deliver a reasoned judgment yesterday and so I have dealt with it in a reasoned judgment this morning. That means that this whole action from start to finish has taken a shade more than two weeks. I hope that Charles Dickens would be both surprised and proud of us. I pay tribute to both parties and, in particular the claimants, for their efforts in making sure that this case was fit for trial. I was provided with bundles containing well marshalled material and, as far as I could see, nearly all of the material that would be required. Mr Robertson, for his part, managed to give disclosure, as did the claimants. Whether or not there were holes in the disclosure one will never know, but I had the impression of a well-prepared trial, and both of the parties are to be commended in the expedition which they have brought to bear upon this matter. Although it is a matter which is obviously of great significance to Mr Robertson, because it threatened his livelihood, and of commercial significance to the claimant, it was, in many senses, an action fit for the county court, but on this occasion the High Court has managed to achieve justice by getting the matter tried in a time within which a lot of interim applications are not decided.
The parties to this action are as follows. The claimant, Tim Russ & Company (" Russ"), are a firm of estate agents with four offices in Buckinghamshire and one office in London. For these purposes the relevant office is the Haslemere office. It provides traditional estate agent services: buying and selling of houses, valuation services and, although not at the Haslemere office (which is significant as will appear), letting services, i.e. it would find tenants for and, where appropriate, manage, properties for landlords. There are two partners in the claimant company, Mr Tim Russ and Mr John Day. It obviously has employees across its five offices. The defendant, Mr Robertson, is an estate agent of some experience and, critically for him, a lot of experience in Haslemere and its surrounding area. He was engaged by the claimant as a negotiator in its Haslemere office and was also described in his contractual documents as the assistant office manager. There were essentially two negotiators working in the Haslemere office: first, a Mr Richardson, whom I heard give evidence, who was also the office manager, and, second, the defendant, Mr Robertson himself. Also engaged in the Haslemere office was a part-time negotiator, Mrs Mayo, who worked some weekends. She is the second defendant to this action, but left it at an early stage when she gave undertakings which were to the claimant's liking.
In the course of this trial I heard a certain amount of oral evidence. First, I heard from Mr Russ, and, second, I heard from Mr Justin Richardson (whom I have already described). I found them to be compelling, truthful and completely open witnesses, save for one very small passage in Mr Russ's evidence when he was necessarily and understandably a little cagey about one of his plans for future expansion. That does not detract from the force and effect of his evidence generally. I also heard from Mr Robertson. Mr Robertson's credibility needs to be approached with a little more care, bearing in mind the attitude that he has taken in relation to the terms of his contract of employment. That is a point which will be made good in due course. Both sides served additional witness statements. So far as the claimant is concerned, it served a witness statement from a Mrs Kathryn Mountford-Taylor and from Mr Day. There was also a formal affidavit proving the results of a Google search from a trainee solicitor, Mrs Stephania Fulford. Nothing turns on her evidence. For his part, Mr Robertson served a witness statement from Mrs Mayo. None of those witnesses was called and none of the witnesses' evidence was the subject of Civil Evidence Act notices. As Mr Hodson, who appeared for the claimant, said, it may be that that was a factor which got lost in the hurly burly of the speedy trial. Whether or not that is the case, at the end of the day all that evidence was effectively allowed in, for what it was worth, uncross-examined on. The principal reason why it was allowed in was that when the issues in the case were analysed, it could be seen that, with one exception, the evidence was either not contentious or did not really go to any of the issues in the case. I have accordingly, although not in any significant way, taken that evidence into account as well, but I have, in the main, relied on the oral evidence given by the three witnesses whom I have identified. The one exception to the apparent fringe nature of the written evidence is one piece of Mrs Mayo's evidence in which she says that Mr Robertson did not approach her to go and work for him, which was an allegation made by the claimant. She had in fact approached him. That makes a difference in relation to Mr Robertson's liability on an anti-employee solicitation covenant, and it is the only evidence apart from Mr Robertson's going to that point. I accept that piece of her evidence.
I turn, therefore, to the chronology of the events in this case. As I have indicated, Mr Robertson is an estate agent of some experience, and by the middle of 2006 he had acquired experience over several years, particularly in the general Haslemere area and its surroundings. In June 2006 he joined the claimant firm, as I have indicated. An issue arises as to what the terms of his contract ultimately became, so I will have to follow through the chronology relating to his employment. When he was taken on he was given a letter dated 27th June 2006 from Mr Russ. It reads (so far as material) as follows:
"Dear Simon,
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