Vanden Recycling Ltd v Kras Recycling BV
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lady Justice Black |
| Judgment Date | 17 May 2017 |
| Neutral Citation | [2017] EWCA Civ 354 |
| Docket Number | Case No: A2/2016/0582 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2017 |
[2017] EWCA Civ 354
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MRS JUSTICE COX
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
and
Lord Justice Hamblen
Case No: A2/2016/0582
David Reade QC and Nick Goodfellow (instructed by Dentons UKMEA LLP) for the Appellant
Jonathan Cohen QC and Jamie Susskind (instructed by Sintons Law) for the Respondent
Hearing date: 4 May 2017
Approved Judgment
Introduction
This is an appeal against the judgment of Mrs Justice Cox of 17 December 2015 whereby summary judgment was given for the Third Defendant respondent, Kras Recycling BV ("Kras"), in respect of the claims made against it by the Claimant appellant, Vanden Recycling Ltd ("Vanden").
Judgment was given on the basis that the effect of a Consent Order made on 25 June 2015 as between Vanden and the Second Defendant, Bolton Brothers Limited ("Bolton"), was to give judgment for Vanden in respect of its damages claim. That consent judgment having been satisfied there was no longer any claim against Kras, as another tortfeasor liable on the pleaded case for the same damage.
Vanden contends that the judge erred in law in so concluding.
The factual and procedural background
This is set out in detail in the judgment [2015] EWHC 3616 (QB) at [4] to [24] and is not in dispute.
In outline, as set out more fully in the judgment, Vanden is part of an international group of companies involved in plastic waste management. It specialises in buying industrial and commercial plastic waste and selling it on to third party customers for a profit. The waste is sold either to companies that recycle the waste, or to companies that add value to the waste through a cleansing process, before selling it on for recycling at a higher price. Vanden is one of the largest brokers of plastic waste products operating in the United Kingdom.
The First Defendant, Ms Tumulty, was employed by Vanden as a Business Development Officer. Her duties included the development of their European customer base, sourcing and developing purchaser relationships in Holland, Belgium, Germany and northern France, and establishing or maintaining supplier relationships in eastern England and Ireland.
Bolton is a waste management company based in Ipswich, which collects and disposes of both recyclable and non-recyclable waste, including plastic waste. Vanden had, on occasion, purchased plastic recyclable waste from Bolton.
Kras is a Netherlands company which conducts a range of waste management services, including the purchase, cleaning and onward sale of plastic waste.
Vanden and Kras had a commercial relationship, with Vanden both purchasing plastic waste from Kras and selling it on to them.
In mid March 2015 it was agreed that Ms Tumulty would in future focus solely on the purchase of plastic waste, rather than on its sale. However, on 8 April 2015, shortly after this agreed change of role, she gave notice of her resignation. Vanden became suspicious of the reasons for and timing of her resignation. FTI Consulting LLP ("FTI"), a specialist computer forensic company, was instructed to carry out an investigation and analysis of her work laptop and mobile phone.
Vanden's case is that FTI's findings produced significant evidence of unlawful conduct, in that Ms Tumulty was providing confidential and commercially sensitive information to both Bolton and Kras, and that the three Defendants had all conspired to divert business away from Vanden and to set up Ms Tumulty in a business arrangement to compete with Vanden.
Ms Tumulty was immediately placed on garden leave and her employment was then terminated. Letters before action were sent to all the Defendants seeking immediate undertakings.
Having received no response from Kras, Vanden initially applied on notice, dated 18 May 2015, for urgent interim relief only against Ms Tumulty and Bolton. It commenced a claim against all three Defendants by way of a Claim Form dated 18 May 2015 with Particulars of Claim dated 19 May 2015.
At an inter partes hearing on 22 May 2015 HHJ Seymour QC, sitting as a judge of the High Court, granted the orders for interim relief sought against Ms Tumulty and Bolton, all parties having given appropriate undertakings, including undertakings by both those Defendants as to disclosure and delivery up of documents which were the property of Vanden and its parent, Vanden Global Limited. The judge also ordered a speedy trial of the claim against those Defendants, with permission to Vanden to apply in respect of its claim against Kras, the trial to be limited to the issues of liability and injunctive relief, with all other remedies to be dealt with at a separate hearing if required. The trial was set down to commence on Monday 6 July 2015, with a time estimate of 3 days, and appropriate case management directions were given to ensure that the trial date was adhered to.
After disclosure was given by the first two Defendants, and while correspondence was continuing as to the undertakings being sought from Kras, negotiations with Ms Tumulty and Bolton resulted in a Consent Order being made in the case of each of those Defendants.
The Consent Order with Bolton ("the Consent Order") was made on 25 June 2015. Its terms will be referred to in detail below but it set out terms of settlement agreed by Vanden and Bolton and provided that Bolton "is to pay the total sum of £275,000 in full and final settlement of the Claimant's claims against the Second Defendant in these proceedings together with interest and costs".
The Consent Order with Ms Tumulty was made on 26 June 2015. Paragraphs 1 – 5 of that Order recorded Ms Tumulty's full admissions to all the allegations of misconduct made against her: that she had acted in breach of the express terms of her contract of employment, of the implied term that she would serve Vanden with good faith and fidelity, and of her implied duty of confidence to Vanden; that she was induced by Bolton and Kras to act in breach of her duties to Vanden; that she provided Bolton and Kras with confidential and commercially sensitive information for the purposes of a business which the three Defendants intended to operate in competition with Vanden; that she conspired with Bolton and Kras to injure Vanden by unlawful means; and that such conspiracy was to use Vanden's confidential information and to set up a competing business.
Upon the basis of these admissions, the trial date of 6 July 2015 was ordered to be vacated as between Vanden and Ms Tumulty and the mutual undertakings of the parties were discharged. Paragraph 3 of the Order provided that:
"3. There be judgment in favour of the Claimant in respect of its claim against the First Defendant in relation to the Admissions at paragraphs 1 – 5 above with damages to be assessed in due course."
There were also consequential orders as to springboard relief and compliance with the restrictive covenants in Ms Tumulty's contract of employment. The Order provided for payment of Vanden's costs of the application dated 18 May 2015 and for payment of its costs relating to the speedy trial, to be assessed if not agreed.
Copies of both Orders were sent to Kras. Kras acknowledged service on 26 June 2015 and served its Defence on 9 July 2015.
No agreement was reached as to undertakings to be given by Kras, and Vanden's application for interim relief against Kras came in front of HHJ Seymour QC on 20 July 2015. By that stage, faced with lengthy witness statements and documentary evidence revealing extensive factual and legal dispute, the parties accepted more limited undertakings than were sought on both sides and these were incorporated in an order of the court with no order being made on Vanden's application.
On 23 October 2015 Kras issued its application that the claim be struck out or summary judgment entered for Kras. Three grounds were advanced: (1) since the judgment by consent against Bolton has been satisfied, a satisfied judgment against either joint or concurrent tortfeasors discharges the tort, so there is no claim left to bring against Kras; further or alternatively, (2) the Consent Order in relation to Ms Tumulty, as one of three joint tortfeasors, was one of judgment with damages to be assessed. The parties reached agreement in the terms of the order and that agreement was one of release, with a mechanism for the determination of the figure that Ms Tumulty should pay. There was no reservation of the right to continue against Kras and in the circumstances of this case Vanden released the claim against all the Defendants; further or alternatively, (3) this is a claim without any remaining value. The Claim Form gave the sum of £100,000 as the maximum figure for Vanden's loss; the Particulars of Claim, which have not been amended, are inadequate and fail to identify what loss is claimed; and the loss that can be identified appears to be minor. Since Vanden has already obtained £176,000 from Bolton, the costs of continuing are out of all proportion to any value that could be left, if indeed there is any loss remaining.
The judge upheld Kras' application on ground (1) but made no ruling on grounds (2) and (3), neither of which she regarded as being "clear and straightforward".
It was and is accepted that, for the purposes of determining the application to strike out or for summary judgment, the facts alleged in the Particulars of Claim should be assumed to be true.
The Particulars of Claim
Individual breaches of duty were alleged against Kras as follows:
"22. The Third Defendant has:
22.1 induced the First Defendant to act in breach of her duties to the...
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