Berryland Books Ltd v BK Books Ltd & Ors

In the course of this judgment, I shall refer to various individuals by the names which were applied to them during the course of the trial. No discourtesy is thereby intended. The claimant (Berryland) is a company involved in the publication and sale of children's books. It was incorporated in England on 12 February 2004 following discussions between the second defendant (Indiren), a Malaysian national aged 46, and three Indian directors (the Standard directors) of an Indian printing company, Standard Press (India) Private Ltd (Standard). Indiren held 30% of the shares in Berryland and the Standard directors together held the remaining 70%. All four were appointed directors of Berryland, and Indiren was the company secretary. Indiren was the only director based in England and he exercised all day-to-day management responsibilities, making all decisions regarding the production and sale of Berryland’s books. Indiren was effectively in full control of Berryland save that from time to time the Standard directors would request financial information and attend board meetings. Standard invested significant sums of money in Berryland, and Indiren provided the hands-on graft and experience which the venture needed. Indiren appears to have regarded the moneys provided by Standard as an investment in the company; the Standard directors, at least from about March 2006, appear to have regarded them as "borrowed capital". Following a board meeting on Monday 13 November 2006, Indiren wrote a letter tendering his resignation as a director of Berryland with immediate effect.

Indiren disputes that he was ever an employee of Berryland, and it is common ground that he had no written contract of employment. Since Indiren accepts that he owed to Berryland the usual (and more onerous) fiduciary duties of a director, whether he was also an employee is relevant only to the question whether he remained subject to an employee’s duty of fidelity after his resignation on 13 November 2006. In response to observations from the bench during closing submissions, it is now acknowledged by Berryland, in the light of the approved minutes of a meeting of Berryland’s board of directors that took place on 12 October 2006, that, whatever the position before that date, Indiren cannot be treated as an employee of Berryland after that date, and thus he was not an employee at the time of his resignation on 13 November 2006. Initially, Indiren had not been remunerated for his considerable contribution to the establishment and development of Berryland’s business. On 19March 2006 Indiren sent an email to Chiran, one of the Standard directors, notifying him that since he (Indiren) was spending a lot of his time managing Berryland and handling all the administrative, financial and purchasing matters, from 1 March 2006 he would be paying himself a salary of £3,000 per month on the basis that this was all the company could afford. Chiran replied by email some 10 days later indicating that “the Board” had decided not to allocate remuneration to any of the directors because Berryland was a very new company. Indiren immediately responded by email on 31March 2006 stating that, as Chiran had not got back to him, he had proceeded to pay himself £3,000 per month with effect from March 2006, and strongly disagreeing with the decision to refuse him any remuneration. Indiren indicated that, as the only executive director and the MD/CEO of the company, he would not work without appropriate remuneration for his time. He indicated that there were two options to move forward: either he was bought out of the company for 30% of Standard's total investment of £280,000, equating to £84,000; or he would buy out Standard’s shareholding entirely based on a mutually agreed figure. Chiran's immediate email response was to state that he was “really upset” to hear that Indiren had withdrawn £3,000 as remuneration from Berryland since this was a “violation of Board's decision”; and to empower him to draw only £1,000 per month as remuneration for another three months. Chiran indicated that, in due course, the remuneration payable to Indiren would be decided by the other directors of the board; and that Indiren's proposal for a transfer of shares or a takeover of the company would be discussed by Chiran with the other directors, but only after his return to India in the middle of April. Indiren's evidence was that Chiran subsequently agreed orally that he (Indiren) should receive remuneration at the rate of £2,000 per month. This was (at least at one time ) disputed by Berryland; but I find as a fact that this was agreed by Chiran, as confirmed by the approved minutes of the meeting of the board of Berryland held on 12October 2006 and chaired by Chiran. In the course of this board meeting, the other board members, at the behest of Mr Baskaran (an Indian accountant, attending as an alternate director, who gave evidence before me), rejected a proposal by Indiren that he should receive a salary of £4,500 per month from October 2006, and resolved instead that Indiren should repay the salary previously drawn by him without the proper approval of the board; and that, if Indiren failed to refund this, it was to be recovered from Chiran, who was said to have "authorised this salary amount without the Boards approval". By the time of this board meeting, Indiren was deeply unhappy about his business relationship with the Standard directors, and with the questions that they were asking him about Berryland’s finances and his running of its business. In my judgment, it was the tensions and deteriorating relationship between Indiren and the Standard directors, first revealed by these email exchanges between Indiren and Chiran in March and April 2006, and thrown into sharp focus by the 12 October board meeting, which are the root cause of the events which have led to this litigation.

The third defendant (Helen), a UK national, is married to Indiren. She was appointed, as a salaried employee of Berryland, to the role of business development manager from its establishment in February 2004. Due to her child-care commitments, she always worked flexi-time, and, initially, on a part-time basis; but with effect from April 2005 she received a substantial increase in her monthly salary and worked on a full-time basis to the extent that her family commitments permitted this. Helen had some prior work experience in the field of publishing; but (although she had to be pressed to reveal this in cross-examination) her previous work experience in children's publishing was limited to some six months in Singapore about 15 years before she began working for Berryland. Helen submitted her resignation from Berryland by email dated 9 November 2006. Under the terms of the written contract Helen had signed in January 2004, her employment was terminable on 1 month’s written notice. In her email, Helen gave the contracted period of notice, but she asserted that, because she was owed a substantial amount of accrued holiday leave, she was entitled to leave immediately. However, she indicated that she was prepared to continue working until Friday 17November. In fact, because of delays on the part of Berryland in supplying her P45 and making her final salary payment, it was not until 5December 2006 that Helen purported to respond, by email, to requests she had received from Berryland for details of its accounts and supplier contacts. Helen’s written contract contained no post-termination restraints.

The fourth defendant (Sophie), a UK national, was appointed as a salaried employee of Berryland to the role of UK sales manager with effect from 18 April 2006. She had no previous experience in publishing. Due to child-care responsibilities, she worked flexi-time, and only spent part of her time in Berryland’s office. She resigned by letter dated 8 November 2006, stating that she would work her 4 weeks’ notice, less any outstanding annual leave. (As with Helen, Sophie’s written contract of employment, dated 10April 2006, required her to serve 1 month’s written notice; and it too contained no post-termination restraint.) UK sales formed only a relatively small part of Berryland’s business. International sales were the responsibility of Sean Buckley (Sean). He acted as Berryland’s Vice-President, International Sales, from 1 August 2004 under a written contract (terminable on 3 months’ notice) dated 8July 2004. He ceased to work for Berryland on 20 October 2006, having given one month’s notice on 20 September 2006.

The fifth defendant (Ramasan), a Malaysian national aged 40, is a friend of Indiren. He is a doctor of medicine, and practises as an obstetrician and gynaecologist. He has never had any involvement in publishing. The fifth defendant (BK Books) was incorporated on 8 June 2006. Initially, Ramasan was the sole director and shareholder. It is not clear precisely how many shares were issued to him. On or about 1 March 2007, for no consideration, Ramasan transferred his entire shareholding to Indiren, who was then appointed a director of BK Books. Ramasan remained as a director of BK Books until at least September 2008 (when he signed the response to a request for further information on its behalf) but he has since resigned as a director (according to the defendants on 2 October 2008). Ramasan accepted, and I find as a fact, that he has never played any management or directing role in BK Books, he has never made any financial contribution to the company (except, possibly, for the initial costs of incorporation), and he has never received any financial benefit or return from it.

It is Berryland’s case that in or before the beginning of June 2006 Indiren conceived of an unlawful enterprise to divert Berryland’s business into another corporate vehicle, which was to become BK Books. This was conceived as including, or came to include, the use of Berryland’s confidential information, corporate opportunities, staff and customers. Indiren’s unlawful enterprise developed into a conspiracy that drew in the other defendants (and also Sean). In order to conceal what he was up to, Indiren caused his friend, Ramasan, to establish BK Books; but it was Indiren who exercised management and control of BK Books from the start, and it is said that it was he was he who was the true beneficial owner of the company. From the time of BK Books’ establishment, Indiren, Helen, Sophie, and Sean were actively engaged in either working for BK Books, and diverting business to it from Berryland, or in pursuing unlawful preparatory activities. As a result of these unlawful activities, it is said that immediately after their serial resignations from Berryland, between 8 and 13 November 2006, if not before, they were able to commence working for BK Books as a going (and competing) concern, and without the usual lead-in time required to start up and to establish a new publishing venture. In furtherance of this conspiracy, it is alleged that, before leaving its employment, all Berryland's records, whether in electronic or hard copy form, were removed, destroyed or deleted. At the very least, it is said that Indiren, Helen and Sophie were very reluctant to provide necessary computer passwords and other important commercial information. It is said that this has damaged Berryland's business, and has impacted upon the conduct of this litigation. The present claim therefore arises from alleged breaches of the second to fourth defendants’ contractual duties of fidelity as employees (and, in the case of Indiren, of his fiduciary duties as a director of Berryland) both in promoting BK Books as a competing company and in deliberately sabotaging Berryland's business. It is said that the first and fifth defendants were complicit in these breaches of duty by facilitating or dishonestly assisting in, or benefiting from, them. Collateral to, and supporting, these claims of conspiracy and sabotage, there are also secondary claims that the second to fourth defendants have breached their equitable obligations not to use or to divulge confidential information and trade secrets, and that they have infringed Berryland's copyright in its database and in certain Sudoku books that Berryland had been in the course of publishing and marketing.

All of these allegations are vehemently denied by all the defendants, who dispute that they have acted unlawfully, as alleged by Berryland, or that it is entitled to any of the relief claimed. It is said that BK Books was established legitimately by Ramasan as an investment opportunity, originally for the purposes of establishing a cross-marketing venture with three French gentleman involved in the continental publishing trade with a view to marketing each other’s products in return for a commission, but also as an imprint of Berryland itself with a view to enabling it to pitch for the sales of books (including interactive CD-ROM books) at a higher, and more profitable, end of the market. (In this regard, Indiren draws a comparison with the later establishment, by Chiran and David Asir in September 2008, of a company, Red Snapper Books Ltd, in order to fulfil a similar function and role.) However, the cross marketing venture never came to fruition and, shortly thereafter, there was a general breakdown in relations between Indiren and the Standard directors. Associates of the Standard directors, notably David Asirvathan (David Asir) and Natarajan Baskaran (Mr Baskaran) were introduced into Berryland's business and management structures in the UK; and their new working practices and interference are said by the second to fourth defendants to have created an unworkable situation within the management and offices of Berryland such that, in effect, the second to fourth defendants suffered a constructive dismissal and were compelled to resign. Following this irretrievable breakdown of relations within Berryland, the second to fourth defendants took the opportunity to move to BK Books, where they set about developing its business of publishing and marketing children’s books in competition with Berryland. It is at the heart of the defendants’ case that BK Books was “started for one purpose and used for another”. The claimant asserts that these explanations are entirely inconsistent with both the documentary, and other reliable, evidence. It is said by Berryland (at paragraph 34 of its written closing submissions) that BK Books was never a simple "start-up" and was plainly a cynical attempt to "steal" Berryland's business. It was conceived and incorporated with this express goal so as to be ready and waiting for the second to fourth defendants to move into when they resigned from Berryland. They had already been working for it, and had prepared it so that it was fully operational in November 2006

Berryland issued its claim form on 5 December 2007. By an Order dated 28 May 2008 Master Teverson restricted this trial to “deciding issues of liability and entitlement to remedies other than financial remedies, with all other issues concerning the quantification of any financial remedies (whether by inquiry or account) to be stood over to after the trial”.

Until 1 December 2008, shortly before initial disclosure was given, the Defendants were all represented by the same solicitors (Bracher Rawlins LLP) and counsel (Malcolm Chapple). Thereafter, and for the purposes of disclosure, preparation of witness statements, and the conduct of the trial, they have all acted as litigants in person. On the first day of trial, and without opposition from Mr Ben Quiney of counsel (who appears for Berryland), I permitted Indiren, as its director, to represent BK Books pursuant to CPR 39.6. Indiren also took the lead part in representing the other defendants, but all were allowed to participate fully in the trial (although Sophie and Ramasan, in particular, were absent from court for substantial parts of the trial). I wish to pay tribute to the courteous and measured way in which all the individual defendants have conducted themselves in court throughout the course of this trial which, for Helen at least, has been a visibly distressing experience. I must also pay tribute to the consideration and courtesy which Mr Quiney has shown towards the individual defendants as litigants in person. This trial has been an object lesson in how serious and complicated commercial litigation against litigants in person should be conducted.

Following a day’s judicial pre-reading, the trial started at 10.30am on Thursday 2 July 2009. For the reasons given in an extemporary judgment delivered that morning, I began by rejecting an oral application by the claimant under the Civil Evidence Act 1995 for permission to rely, as hearsay evidence, upon the witness statement of Sean Buckley dated 4 April 2009, and upon an affirmation of Chiran made on 19 June 2009. In summary, my reasons for doing so were the lateness of the communication of Berryland’s intention to rely upon this evidence as hearsay, and the consequent prejudice to the defendants as a result of their inability to compel the attendance of those witnesses for cross-examination. Mr Quiney then opened Berryland’s case, emphasising that it was essentially “fact-driven”, and that the real issue in the case was whether the defendants had crossed the line beyond which preparations for the establishment of a competing business by a director or employee become unlawful. In that connection, out of the many authorities included within Mr Quiney’s two bundles of authorities, I was taken to passages from the judgments in the cases of Fassihi v Item Software (UK) Ltd [2004] EWCA Civ 1244, [2004] BCC 994, Helmet Integrated Systems Ltd v Tunnard [2006] EWCA Civ 1735, [2007] FSR 16, Shepherds Investments Ltd v Walters [2006] EWHC 836 (Ch), [2007] FSR 15, AG of Zambia v Meer Care & Desai [2007] EWHC 952 (Ch), and Revenue & Customs Commissioners v Total Network SL [2008] UKHL 18, [2008] 2 WLR 711. Mr Quiney called his first witness, David Asir, at about 2.50pm. The oral evidence continued over 9 court days, concluding at about 11.30am on Tuesday 14 July 2009. I then adjourned for written closing submissions, first from the claimant and then from the defendants. I received Mr Quiney’s final written submissions (extending to 51 pages) by email on the morning of Thursday 16 July. I received Indiren’s written closing submissions on behalf of all the defendants (extending to 79 pages) by email on the morning of Monday 20 July. On Tuesday 21 July, I heard oral closing submissions from Indiren (on behalf of all the defendants, and in the absence of Sophie and Ramasan) and from Mr Quiney (for the claimant) extending over a full court day. In the course of his submissions, Mr Quiney took me to the following additional case-law authorities: Foster Bryant Surveying Ltd v Bryant [2007] EWCA Civ 200, [2007] Bus LR 1566, Crowson Fabrics Ltd v Rider [2007] EWHC 2942 (Ch), [2008] FSR 17, Pennwell Publishing (UK) Ltd [2007] EWHC 1570 (QB) and (on copyright) Express Newspapers Plc v Liverpool Daily Post & Echo Plc [1985] 1 WLR 1089. I then adjourned for judgment until Friday 23 July 2009, the last day of my scheduled sitting in London. Because of the limited time available to me to prepare this judgment before the end of my sittings in London, it is inevitably shorter than would otherwise have been the case; but I did not want to subject the parties to any undue delay in delivering judgment.

In assessing the evidence in this case, I have had regard to the contemporary documents, to a proper appreciation of the overall probabilities, and to the possible motives of the witnesses; and I have sought to test the veracity and reliability of their evidence and recollections by reference to the objective facts proved independently of their testimony. Given that certain material documents are not before the court, I have tried to avoid placing undue reliance on those documents which are in evidence; and I have sought to give sufficient weight to evidence tending to prove or suggest that relevant matters were discussed or agreed which are not recorded in the available documents. I have borne in mind the need to evaluate a witness’s performance in the light of the entirety of his or her evidence. I have reminded myself of the need to analyse why people lie in the witness box: the mere fact that a witness has lied does not necessarily mean that the entirety of that witness’s evidence should be rejected because the witness may have lied in a stupid attempt to bolster a good case rather than because the case itself is a lie. I also bear in mind that, when assessing the probabilities, the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger should be the evidence before I conclude that the allegation is established on the balance of probabilities. With these preliminary observations in mind, I turn to my assessment of the witnesses.

The claimant called two witnesses. David Asir is the company secretary and a full-time director of Berryland, having been appointed to those posts on 12 October and 10 November 2006 respectively. He now looks after financial and administrative matters at Berryland. He gave evidence before me for some 6 ½ hours (of which some 5 ¾ hours was cross-examination), spread over 3 court days. He is a quiet and non-aggressive individual, and was very polite and deferential as a witness. I had been warned by Mr Quiney that David Asir was slightly deaf and, at times, I wondered whether he had actually heard and fully understood the questions that were being put to him. His background was in printing and, prior to joining Berryland, he had had limited experience of publishing in general and virtually none at all of the specialist field of publishing and marketing children’s books. I find David Asir to be an honest witness but one who was not always entirely clear or reliable in his recollection and evidence. To take two examples, by way of illustration, his evidence about Berryland’s booking of a new stand (A620) for The London Book Fair (held on 16-18 April 2007), after (as I find) Berryland’s original stand (C520) was “hi-jacked” by Helen on behalf of BK Books, was both confused and confusing. His account in cross-examination of the meeting he attended with Sean at the Millennium Hotel on 2 November 2006 was confused and was not consistent with his witness statement, according to which Sean had handed over his laptop after taking a CD backup, a copy of which was also given to the Berryland representatives. Further, David Asir was of only limited value as a witness because he has no personal knowledge of relevant events and matters before 12 October 2006; and in IT matters he was effectively dependant upon a management trainee (and IT specialist) called Ranjith who had been introduced into Berryland by the Standard directors in October 2006. Ranjith did not give evidence before me although he was present in court almost throughout the trial. I am satisfied that he had potentially relevant evidence to give which might have been of assistance to the court. I draw no inference adverse to Berryland by its failure to call him; but the absence of evidence from him does, in my judgment, mean that certain aspects of Berryland's case, namely the defendants’ alleged deliberate destruction of computer files, has not been sufficiently proved.

Berryland’s second witness was Mr Baskaran, a practising chartered accountant and an advisor to Chiran, who acted as an alternate director of Berryland. Mr Baskaran gave evidence for some 7 hours (of which some 6 hours was cross-examination), spread over 2 court days. He had apparently been involving himself in Berryland’s affairs in India since about April 2006, but his first direct personal involvement appears to have been at the time of the board meeting on 12 October 2006, which he attended as an alternate for one of the Standard directors. Mr Baskaran’s native tongue is Tamil, and, although at times he could be volatile and spirited, he spoke with a heavy Indian accent. On occasions, it seemed to me that he had difficulty in understanding the questions being put to him; and I certainly had some difficulty in following and understanding all of his answers. I found Mr Baskaran to be partial in his evidence and entirely supportive of the decisions made, and positions adopted, by Chiran, his principal. Despite my best efforts to draw him out in that regard, I found it very difficult to make any assessment of precisely what Mr Baskaran’s actual recollection was of events that were recorded in the minutes of the meetings that he attended. I find it surprising that Mr Baskaran, who claimed in his witness statement to have been “shocked” by Sean’s revelations, on 2 November 2006 at the Millenium Hotel, of Indiren’s incorporation of BK Books as a direct competitor of Berryland, and his diversion of Berryland’s business to this new company, should have failed (as he said in cross-examination) to take immediate steps to secure Sean’s company laptop, or at least to copy all of the files on it. Mr Baskaran could supply no satisfactory and convincing explanation for this surprising omission. Further, it is not easy to reconcile this revelation, on 2 November, with the evidence in Mr Baskaran’s witness statement that it was proposed to convene a board meeting 2 weeks earlier, on 17 October 2006, “to discuss about BK Books” (a matter not mentioned either in the email convening that meeting or in the relevant board minutes). Whilst I do not consider that Mr Baskaran was deliberately lying in his evidence to the court, I do find that he is not a witness on whom I can place any particular reliance.

As an advocate, Indiren came over as a highly intelligent individual who was in command of the substantial volume of documentation in the case, and, throughout, he presented the defendants’ case with considerable skill. At times, however, he seemed unable to appreciate that this case was not really about Chiran's conduct, but rather about the activities of himself and his co-defendants. Indiren gave evidence before me for some 8 ½ hours (of which over 8 hours was cross-examination), spread over two court days. He proved to be a clever and voluble witness. He is a man of considerable apparent charm, but I formed the view that he was also a man who was determined to get his own way. With regret, I find that I cannot treat his evidence as reliable, nor do I consider him to be a witness of truth. Tested against the contemporary documents, the objective facts proved independently of oral evidence, and the inherent probabilities, his evidence and explanations proved unsatisfactory. I am satisfied that Indiren was lying, not in a stupid attempt to bolster a good case, but because his case is a lie.

The defendant’s next witness was Ramasan. He gave evidence for a little over 2 hours (mainly cross-examination) with an overnight break after the first 40 minutes of cross-examination. He was visibly fatigued the following morning, having been working all night as a medical doctor. Ramasan had little idea or understanding of the original commercial purpose of the establishment of BK Books, repeatedly muttering what seemed to me to be the mantra of "cross-marketing". He seemed surprised at the proposition that the sole director of a company should be involved in its running; and I find as a fact that he had no such involvement, leaving everything to Indiren. I found Ramasan reluctant to provide direct answers to questions; and I formed the view that his real concern was to help Indiren, his friend, rather than to assist the court. The tenor of some of Ramasan’s evidence was supportive of Berryland's case, and to that extent (and to that extent only) I accept his evidence; but I cannot accept his evidence in so far as it seeks to support the defendants’ case.

The defendants’ third witness was Sophie, who gave evidence for some 1 ½ hours (of which 1 hours was cross-examination). I found her to be personable, confident and firm in her evidence; but I also find that she displayed a reluctance to admit matters which were clearly established by the documents or were either self-evident or inherently likely. For example, in the context of a company as small as Berryland, and bearing in mind the past and future relationship between them, I simply cannot accept Sophie's evidence that, when she discussed her intention to resign with Helen and Indiren shortly before she resigned, they never told her that they were also planning to resign (as they did very shortly thereafter). In cross-examination, Sophie said that she had no memory of having discussed the French venture, contrary to what she had said in response to a request for further information (settled for the defendants by counsel) on 5 September 2008 which she, and the other defendants, had verified by a statement of truth. At best, Sophie's memory was variable and unreliable; but the reality (as I find) is that she was simply, and deliberately, not prepared to admit the full extent of her knowledge of BK Books. The fact that, on 11 September 2006, Helen sent a chatty email attaching the proposed new BK logos to Sophie (and also to Sean) clearly indicates that Helen regarded Sophie is being in on whatever was being planned with regard to BK Books; yet Sophie said that she did not remember ever receiving that e-mail, and she could not venture any explanation as to why Helen should have sent it to her, asserting in terms that it was " certainly not part of an ongoing discussion. No, definitely not." I fear that I cannot treat Sophie’s evidence as reliable, or regard her as a witness of truth.

The defendants’ final witness was Helen. She gave evidence for some 6 hours (with some 4 ½ hours’ cross-examination) extending into a second court day. She was visibly, and genuinely, distressed, and occasionally tearful, and she seemed uncomfortable in the witness box. This case had evidently been a great strain upon her. I found Helen to be intelligent and superficially plausible, but she became less convincing when pressed in cross-examination. I found aspects of her evidence to be strained, unsatisfactory, and entirely lacking in conviction. Examples were her evidence about the circumstances surrounding the email to Sophie and Sean attaching the new BK Books logos; the registration of the bkbooks.co.uk domain name on 2 November 2006; and the circumstances surrounding what (as I find) was her deliberate diversion of the booking of stand C520 at the 2007 London Book Fair from Berryland to BK Books, an incident which seriously enures to her discredit, and about which I am sure that she lied to the court. (I should however add that I am not satisfied that this action on Helen’s part caused any loss to Berryland since it was subsequently able to secure its own stand, in good time, for the London Book Fair.) I am satisfied that Helen was not frank and honest in her evidence, deliberately downplaying her knowledge of, and involvement in, the business of BK Books, and the acts preparatory to getting it up and running. Her evidence about Berryland’s ownership of the copyright in the CD-Rom books was inconsistent with itself and with the documents, and was intended to mislead. As in the case of Indiren, I am satisfied that Helen was not lying in order to bolster a good case, but rather because the defendants’ case itself is a lie.

In the light of my observations on the reliability, and the credibility, of the various witnesses, I do not consider that I would be assisted by making any finding of fact as to the minor, and peripheral, issue of whether, as asserted by Berryland’s witnesses, but denied by the defendants, who were supported on this point by an email from the landlord of the office premises dated 7 July 2009 (admitted as hearsay evidence without opposition, save as to its weight, from Mr Quiney), the door to Indiren’s office at 127 Chiltern Drive, Surbiton, was capable of being locked.

Making all due allowances (as I do) for the difficulties experienced by the defendants, as litigants in person, in defending complex, and serious, allegations of commercial wrong-doing, advanced by a financially sound and well-advised opponent, I accept the validity of Mr Quiney's criticisms (at paragraphs 12 through to 19 of his written closing submissions) of the extreme economy, and partiality, of the defendants’ disclosure; of the economy, and opacity, of their witness statements; and of their performance in the witness box. Disclosure by the defendants of clearly material documents took place in dribs and drabs during the course of the trial, with the products being added to bundle 7 at divider 8 (pp 195-222) on the morning of 6 July, divider 10 (pp 232-253) on the morning of 7 July, divider 11 (pp 253-326) on the morning of 8 July, and divider 12 (pp 327-342) on the morning of 10 July 2009. It is worthy of note that, initially, the defendants sought to withhold, expressly on the grounds of commercial sensitivity, details of the amounts and payees of the first 7 cheques drawn on the bank account of BK Books. When I overruled the defendants’ claim to withhold this information, it was immediately supplied: contrast pages 251 and 251A of bundle 7, divider 10. However, I accept Mr Quiney’s submission that the assertion of commercial sensitivity was groundless: I am satisfied that the reality was that this was documentation which was embarrassing to the defendants (because it tended to reveal the level of their early claims for expenses, and thus of their activities on behalf of BK Books) and which they therefore wished to withhold. I also accept Mr Quiney’s invitation to infer, as being consistent with the overwhelming probabilities, that the defendants have deliberately withheld other documents adverse to their case, or supportive of the claimant’s case; but I am unable to draw any inferences as to the nature or contents of these documents, and I make my findings of fact independently of this inference as to the existence of such documents.

The reality is that, despite deficiencies in both parties’ disclosure, there are just too many contemporary documents that the defendants cannot properly explain away or justify. Thus, they cannot give any satisfactory or lawful explanation for Sean’s sales pitch of BK Book products to the US mass-market, low value retailer, Dollar Tree, at the defendants’ behest, in September 2006, and (as I find) Indiren’s later appropriation, immediately after his resignation on 13 November 2006, of that maturing business opportunity; the registration of the BK Books domain name on 2 November 2006, which was later used to provide email addresses for the defendants at BK Books; and Helen’s deliberate diversion of the booking of a stand at the 2007 London Book Fair from Berryland to BK Books. Indiren’s clearly deteriorating business relationship with the Standard directors, which impacted upon both Helen and Sophie (the latter of whom certainly entertained justifiable fears about her future with Berryland), provided a plain motive for all three defendants to embark upon a course of conduct calculated to divert its business opportunities from Berryland to BK Books. Indiren’s failure to disclose his involvement in BK Books to the board of Berryland, even (as I find from his acceptance of the board minutes signed by him, although he protested their accuracy in his oral, but not his written, evidence) at the board meeting on 13 November 2006, when the subject of BK Books was raised directly; and Helen’s clear reticence (in her emails of 5 December 2006) in supplying contact details to Berryland’s new management about those involved in the production of BK Books’ products, and her lie that the BK Books deal was “cancelled due to management change”, both speak volumes. There are simply far too many coincidences, too many unexplained and unusual incidents, that all point to the conclusion that the defendants’ case is a lie; and I so find.

Happily, the law itself (as distinct from its application to the facts of this case) is largely non-controversial. In opening, I was referred by Mr Quiney to passages from the judgments in the following cases: Fassihi v Item Software (UK) Ltd [2004] EWCA Civ 1244, [2004] BCC 994 at paragraphs 41-3 and 65 per Arden LJ; Helmet Integrated Systems Ltd v Tunnard [2006] EWCA Civ 1735, [2007] FSR 16 at paragraphs 25-7 (and, in closing, paragraphs 30-1) per Moses LJ; Shepherds Investments Ltd v Walters [2006] EWHC 836 (Ch), [2007] FSR 15 at paragraphs 82, 89-90, and 105-127 (and especially 108) per Etherton J; AG of Zambia v Meer Care & Desai [2007] EWHC 952 (Ch) at paragraphs 314 and 317, 332-371 (and especially 357) per Peter Smith J; and Revenue & Customs Commissioners v Total Network SL [2008] UKHL 18, [2008] 2 WLR 711 at paragraphs 123-5 per Lord Mance. In closing, I was taken by Mr Quiney to the following additional authorities: Foster Bryant Surveying Ltd v Bryant [2007] EWCA Civ 200, [2007] Bus LR 1565 at holding (4) in the headnote (1566F), and at paragraphs 8 (citing the synthesis of principles expounded by Mr Bernard Livesey QC, sitting as a deputy judge of the High Court, in Hunter Kane Ltd v Watkins [2003] EWHC 186 (Ch) at paragraph 25, of which number 7 was said to be “key”), 49-78 (and especially 49-54 and 76-7) and 92-3 per Rix LJ; the head-note to Crowson Fabrics Ltd v Rider [2007] EWHC 2942 (Ch), [2008] FSR 17 (Peter Smith J); (on database right) Pennwell Publishing (UK) Ltd v Ornstien [2007] EWHC 1570 (QB) at paragraphs 101-111 per Mr Justin Fenwick QC sitting as a deputy judge of the Queen’s Bench Division; and (on copyright) Express Newspapers Plc v Liverpool Daily Post & Echo Plc [1985] 1 WLR 11089 at 1092F- 1093C, 1093G and 1094F-1095C per Whitford J.

A director, such as Indiren, is subject to a fundamental duty of loyalty, which requires him to act in what he in good faith considers to be the best interests of his company. He should not undermine the company of which is a director by competing with it. It is contrary to his duty of loyalty for a director to (1) act contrary to the best interests of his company; (2) seek to make a profit for himself through the use of his company's corporate assets, information, or maturing business opportunities; or (3) solicit or procure his existing company's staff to work for his new company. Employees, such as Helen and Sophie, are subject to a duty of fidelity, which requires them, as employees, to be loyal to their employer, and to act with good faith in its best interests, devoting their time and talents to their employer's business. But whilst an employee must not compete with her employer during the course of her employment, the duty of fidelity imposes no inhibition on her competing against her former employer once she has left. She is entitled to take the skill she has acquired and developed during the course of her employment and to apply it for her own benefit once she has left, even if that involves competing against her former employer. She may also take with her, and use, knowledge and information which she has acquired, provided she does not use or disclose information properly described as a trade secret. I am satisfied that no “trade secrets” are involved in the present case.

I am satisfied from the authorities cited to me that, when drawing the line between legitimate preparation for future competition and undertaking illegitimate competitive activity before an employee has left his employment, the law regards it as unlawful to undertake the following: (1) working for a competitor while still employed; (2) personally competing while still employed; (3) concealing or diverting matured or maturing business opportunities; (4) misusing the employer's property, including confidential information and assets; and (5) taking the steps necessary to establish a competing business so that it is "up and running" or "ready to go" as soon as the employee leaves his employment.

The Defendants expressly accept (in sub-paragraph 11 (i) of their closing submissions) that “both employees and directors act unlawfully if whilst still an employee or director (including during any notice period, even if such is during a period of holiday entitlement), they commit acts which are more then mere preparatory acts, in competition with the relevant company”. In his oral closing submissions, Indiren emphasised, in particular, holding (4) in the head-note to Foster Bryant, and numbers 4, 6, 8, 10 and 11 of the Hunter Kane principles (especially 10). The Defendants also emphasise the point made by Moses LJ at paragraph 26 of his judgment in Helmet that, whilst an employee must not compete with his employer during the course of his employment, the duty of fidelity imposes no inhibition on an employee competing against his former employer once he has left.

I bear the principles established by all of the authorities cited above (and the others to which I was referred in the written submissions) firmly in mind. I am conscious that none of the second to fourth defendants were subject to any form of post-termination restraint, and that they were free to use their own gathered expertise, skills and knowledge, acquired over the course of (and before) their employment, in competition with Berryland once they had left its employment. I accept that those defendants were perfectly entitled to organise a state of affairs in anticipation of setting up a business, and to operate that business in competition with Berryland's business, provided that, before the termination of their relationship as a director or as employees of Berryland, they did not cross over the line between (on the one hand) legitimate steps for the future and (on the other) breach of their duties of fidelity (in the case of Helen and Sophie) and (in Indiren’s case) of his fiduciary duty towards Berryland. I also acknowledge that the court has to be astute to ensure that litigation is not used as an illegitimate trade protection exercise so as to stifle legitimate competition. Equally however, the court has to be satisfied that former employees and directors do not go beyond using their own accumulated personal skills and knowledge by deciding, whilst still subject to duties of fidelity or (in the case of a director) of a fiduciary character, to help themselves illegitimately to their former employer’s or company’s confidential information, or to divert to themselves its maturing business opportunities so as to mount a classic springboard operation. I am conscious that neither Helen nor Sophie had a role or position within Berryland beyond that of a mere employee, and that neither therefore owed it any fiduciary duties in addition to their normal duties as an employee. I acknowledge that it is easier for a claimant to establish that activities in preparation for competition were themselves in breach of a fiduciary obligation rather than an employee's more limited duty of fidelity. Ultimately, the question to be considered is whether or not such activities as I find were undertaken by the second to fourth defendants, considered individually, were a breach of Indiren’s fiduciary duties as a director and Helen and Sophie's duties of fidelity, or whether they were legitimate actions taken with a view to setting up a legitimate business after the termination of their directorial or employment relationships with Berryland. The resolution of that issue is highly fact sensitive; and it is necessary for me to apply the principles established by the authorities with care and sensitivity, having regard to other important principles such as that of personal freedom to compete where that does not intrude on the misuse of Berryland's property in the form of maturing business opportunities.

I reject both aspects of the defendants’ explanation for the original establishment of BK Books: that it was intended to be a cross-marketing venture with three individual French publishers, and an imprint of Berryland enabling it to pitch for book sales at a higher (and more lucrative) end of the market. I do so because, notwithstanding the defendants’ evidence and explanations, I find it to be inconsistent both with the contemporary documents, and with objective facts proved independently of challenged testimony, and to be contrary to the overall probabilities. The "French venture" explanation is extremely difficult to reconcile with the available e-mails; and is unsupported by other e-mails and documents which one would have expected to have existed, some, at least, of which should have been available to the defendants. It is uncorroborated by any independent testimony. It is inconsistent with the language of the books which were under consideration, or which were sought to be promoted, by BK Books. The "imprint” explanation is inconsistent with the nature and value of the products being considered and “pitched” by BK Books, and with the fact that, on the defendants’ evidence, Sean was pitching them to Dollar Tree with other Berryland titles. Both suggested explanations afford no satisfactory explanation for the creation of a new company by an independent third party, and friend of Indiren, with no prior knowledge of, or involvement in, the field of publishing, and with no connection to Berryland. In this respect, the creation of BK Books is not a true analogy with the incorporation of Red Snapper Books Ltd. The suggested unpremeditated, but seamless, transformation, in the middle of November 2006, of BK Books from a corporate vehicle created for one purpose into a corporate vehicle fulfilling a very different function stretches judicial credibility beyond any acceptable limit. Indiren's attempts to paper over the cracks of the defendants’ case effectively amounted to an endeavour to fill enormous chasms in that case with tissue paper.

I accept Berryland's submission, and find as a fact, that BK Books was incorporated by Ramasan, at Indiren’s behest, on the footing that it would, at an appropriate moment of Indiren’s choosing, become his company, although it is possible that Ramasan would have been afforded the opportunity of investing in it as a silent "partner". In the meantime, it was clearly understood between the two of them that Ramasan would play no active part in the control, management, or business operation of BK Books, and that these would be the exclusive role and responsibility of Indiren. This was how matters were played out; and Ramasan did in fact play no part in BK Books’ affairs at any time. It was Ramasan’s evidence that even the name, “BK Books”, was nothing to do with him, and probably originated with either Indiren or Helen. In my judgment, Indiren's original motivation for establishing BK Books was (as I find) less single-minded than Berryland seeks to portray. Indiren was effectively seeking to hedge his bets. By the beginning of June 2006, he perceived that his business relationship with the Standard directors had irretrievably broken down. Berryland had reached the point at which it no longer needed Standard’s ongoing financial support, and Indiren considered that its continuing involvement in Berryland was more of a hindrance than a help. He wanted either to take over Berryland for himself or, if this did not prove possible, to cut loose from Berryland and to set up on his own in competition with it. To this end, he conceived the idea of establishing BK Books, effectively as an insurance policy against an unfavourable outcome to his hopes of acquiring ownership and control of Berryland. Both as his wife, and as someone who was perceived by Indiren to be a necessary and willing participant in any new, and competing, children’s book publishing and marketing venture, I am satisfied that Helen was “in on” Indiren's plans from their inception. I am satisfied (and I find) that from early June 2006 until they resigned in the following November, both Indiren and Helen knowingly participated in a joint enterprise to establish BK Books as a potential competitor to Berryland. This enterprise extended to the development and marketing of interactive CD-ROM books such as "The Three Little Pigs" and other related titles under the BK Books’ logo rather than as Berryland products. It is clear from the approved minutes of the board meeting on 12 October 2006 that, by that time, Indiren was aware that the Standard directors were not interested either in buying him out or in selling their own shares in Berryland to him. In a supplemental witness statement, produced at the start of his oral evidence, Indiren referred to a meeting with Chiran at the Millennium Hotel between 17 October and 10 November 2006 at which he said that he was "still clinging on to the hope that the best interest of Berryland Books can be protected by us having an amicable solution which may include Chiran agreeing for me to buy out Berryland Books". By reference to Mr Baskaran’s note-book (7/2/56), it is possible that this meeting in fact took place on 13 October 2006; but, in view of the clear terms of the minutes of the board meeting on 12 October, I am satisfied (and I find) that thereafter Indiren could have harboured little hope of securing ownership and control of Berryland. Therefore, from this point in time (if not before) Indiren effectively looked to BK Books as the vehicle for his (and Helen’s) future involvement in the field of publishing children’s books.

It is less clear to me to what extent Sean, Sophie, and particularly Ramasan knew precisely what Indiren was up to. But I am satisfied (and find as a fact) that all three consciously assisted Indiren in setting up or promoting BK Books on his behalf. Ramasan did so by assisting in its incorporation at the instigation of Indiren. He must have appreciated, and I find that he did appreciate, that he had been approached to lend his assistance to the creation of BK Books because Indiren did not want the other directors and members of Berryland to know about, or to become involved in, this new company. He thereby assumed the risk that he was involving himself in some malpractice on the part of Indiren directed against the company, Berryland, of which he knew Indiren to be a director, and the person in effective control of its business operations. Sean assisted Indiren by involving himself in the promotion, and pitching for sales, of what it was hoped would become products of BK Books. As early as 13 June 2006, Sean was already e-mailing the three French gentlemen and expressing his view that "BK Books is going somewhere BIG!!!" I have no doubt that Sean’s involvement was with a view to his benefiting from BK Books in whatever form that venture ultimately assumed. From the disclosed e-mail exchanges, and also the overall probabilities (derived from the scale of Berryland's business and operations, her resignation from Berryland in advance of the resignations of Helen and Indiren, and the speed with which thereafter she began working for BK Books), it is clear (as I find) that by September 2006 Sophie was aware that new products were being created by Berryland with a view to their promotion by BK Books; and that by early November 2006 (if not before) she was aware that Indiren and Helen were intending to utilise BK Books, and those products, in competition with Berryland unless Indiren succeeded in securing ownership and control of Berryland (as must have seemed most unlikely to Sophie in view of events after the board meeting of 12 October).

I am satisfied (and find as a fact) that between June and November 2006 Indiren and Helen, and to a much lesser extent Sophie, knowingly, and acting in concert, undertook activities preparatory to the establishment of BK Books as a competitor to Berryland. These activities extended to: (1) in the case of Indiren, establishing BK Books and running it; (2) in the case of Indiren and Helen, and to the knowledge of Sophie, developing CD Rom books such as "The Three Little Pigs" (and other related titles) and the " Foam Buddies” as potential products for BK Books with a view to promoting them to customers as such, rather than on behalf of Berryland, and then actually set about promoting them (principally through Sean, as Berryland’s international sales person) as BK Book products to Dollar Tree and other customers of Berryland; (3) in the case of Helen, and with the active connivance of Indiren who must, as I find, have authorised the expenditure of over £6,000 (plus VAT) involved, actively taking steps, before their resignations, to ensure that the contract issued for Berryland's stand at the 2007 London Book Fair could be transferred over to BK Books by falsely representing that they were the same company and then (immediately after Helen’s, but before Indiren’s, resignation) procuring such transfer by the same false representation; (4) in the case of Helen, and with (as I find) the active connivance of Indiren, securing the registration of the bkbooks.co.uk domain name on 2 November 2006, with a view (at the very least) to using it to provide email facilities for BK Books; (5) in the case of Indiren, and with the knowledge of Helen and probably also Sophie, on or before 31 October 2006 booking a plane ticket to fly to the United States on 14 November 2006 with the express object of pitching BK Books products to Dollar Tree (and other existing customers of Berryland); (6) in the case of Indiren and Helen and possibly also Sophie, taking steps to ensure that BK Books would be in a position to pitch to supply “Sudoku” books to Dollar Tree and other customers in competition with Berryland's own “Sudoku” titles during Indiren's visit to the United States, thereby enabling BK books to place an order for some 300,000 titles on 30 November 2006; and (7) in the case of Indiren, Helen and Sophie, discussing and co-ordinating their respective resignations from Berryland with a view to their immediately starting to work for, or undertake activities on behalf of, BK Books. It is of some interest to note that in their Defence (pleaded on their behalf by counsel, and verified by statements of truth signed by each defendant) it is alleged (at paragraph 7(s)) that "BK books did not trade to any significant extent prior to about 15 November 2006" (my emphasis). I accept Berryland’s submissions that this suggests some trading before that date, and that there was no real start-up period.

Berryland also relies on a signed invoice dated 1 September 2006 which purports to record the sale by Berryland to BK Books (with an address in Paris which, according to Indiren, was that of one of the three French gentlemen) of Berryland's international rights to 16 Treasured Tales CD book titles and 12 Treasured Tales early readers for a total sum of US $15,000. It is common ground that this sum was never paid. I reject Indiren's evidence that this was associated with the (non-existent) French venture; but since the invoice was never paid, I find it difficult to appreciate what (if any) significance should be attached to this alleged preparatory act.

In summary, the defendants combined to establish a company which was intended to compete with Berryland without informing the other board members, and without any commercial agreement or justification, or any cross-ownership; and then they used it actually to compete with Berryland.

In addition, I am satisfied (and I find as a fact) that Indiren, with the knowledge of Helen and Sophie, appropriated to BK Books maturing business opportunities which were properly the property of Berryland. These were the CD Rom books such as “The Three Little Pigs” (and other related titles), and also the “Sudoku” books which formed part of Berryland's library of products. As to the former, these had been presented to Helen whilst she was an employee of Berryland; and in my judgment they represented a business opportunity which, in her hands, properly belonged to her employer. I am satisfied that Sean pitched to sell these products (and the “Sudoku” books) to Dollar Tree in September 2006; and that Indiren took them with him to the United States immediately after his resignation as a director of Berryland and used them to pitch for sales to Dollar Tree, and other customers, on behalf of BK Books, and in competition with Berryland. In my judgment, this amounted to a classic instance of the misappropriation of a maturing business opportunity from the company of which Indiren was, effectively, the only executive director.

I am satisfied (and find as a fact) that each of Indiren, Helen, and Sophie (and also Sean) knew and appreciated that the activities I have outlined above would, or might, cause harm to Berryland. I find that Indiren, as a director, of Berryland was in breach of his duty to that company by failing to disclose his own wrongdoing, and that of Helen and Sophie, to the other members of the board of Berryland. I find that Helen and Sophie, as employees of Berryland, were each in breach of their duties of fidelity in failing to disclose the wrongdoing of the other, and of Indiren.

As a director of Berryland, and the effective controller of its operations in the UK, Indiren owed duties of a fiduciary character to Berryland until he resigned on 13 November 2006, but not thereafter. As employees of Berryland, both Sophie and Helen owed it duties of fidelity until after the expiry of their one month’s notice period, and thus until 8 and 9 December 2006 respectively. I reject, as unsupported by the evidence, any submission that Berryland ever agreed to release either Sophie or Helen from their duty of fidelity during their respective notice periods. Although, because they asserted their entitlement to accrued holiday leave, Berryland accepted that Helen and Sophie were not obliged to continue working full-time for Berryland during their respective notice periods, Berryland never did anything which would have amounted to an acceptance of a notice period less than that to which it was contractually entitled. In this regard, their positions can be contrasted with that of Sean, who was contractually obliged to give 3 months’ notice but was allowed to leave after only 1 month. I should add that Sean apparently made it clear that he was leaving Berryland in order to work for a competitor. Neither Sophie nor Helen made it clear that (as I find) they were resigning in order to go to work for BK Books. In working for BK Books during their respective one-month notice periods, Sophie (until 8 December 2006) and Helen (until 9 December 2006) breached the duty of fidelity which they each owed as employees of Berryland.

I accept, on the basis of the paucity of the material that was available to Berryland relating to the overlapping claims founded upon the commission of unlawful preparatory acts and the unlawful exploitation of maturing business opportunities, that the second to fourth defendants deleted and removed electronic and hard copy emails, files and other documents with a view to covering their tracks. This is consistent both with the overwhelming probabilities, and with the contents of Helen's e-mails of 5 December 2006 in which she effectively declined to provide contact details for the individuals who had been engaged in producing material for the CD-ROM books appropriated by BK Books. However, I am not satisfied on the evidence, nor am I prepared to find, that any of the second to fourth defendants deliberately engaged in any more comprehensive destruction, deletion or removal of electronic and hard copy documents and records from Berryland’s computers and premises with a view to sabotaging its ongoing business. Berryland accepts that there is no direct evidence that customer and supplier lists ever existed, or that these were taken by the second to fourth defendants. Berryland also acknowledges that there is simply conflicting oral evidence as to whether the second to fourth defendants deleted all the computer files from the Berryland computers prior to their resignations in November 2006: it is simply the word of David Asir and of Mr Baskaran against that of the second to fourth defendants. This aspect of the claimant's case is wholly unsupported either by any expert evidence of any forensic examination of Berryland’s relevant computers, or even by any factual evidence from Ranjith. It was Helen's evidence, which I think went unchallenged by Berryland, that her e-mails of 5 December 2006 were composite e-mails, embodying her responses to queries raised by Ranjith. There was no evidence as to the source or provenance of his queries. Given the serious nature of the allegations made against them, and notwithstanding my other findings of wrongdoing against the second to fourth defendants, I am not satisfied, on the evidence, that the claimant has made out its case that they acted so as deliberately to sabotage Berryland's business. Nor, save to the extent previously identified, am I satisfied that the claimant has made out a case that the second to fourth defendants have unlawfully used any confidential information belonging to Berryland. Contact details of many of Berryland's customers and suppliers were readily available within the public domain in directories such as that published for various book fairs; and, given the size and nature of Berryland's business, in my judgment all such contact details are likely to have formed part of the general fund of skill, knowledge and expertise acquired in the course of their work which it is plainly in the public interest that the second to fourth defendants should be free to exploit in any new position, in the absence of any express contractual restraint.

In the light of my findings of fact, I hold that Indiren was in breach of the fiduciary duties he owed to Berryland, and that Helen and (to a much lesser extent) Sophie were in breach of the duties of fidelity they owed to Berryland by unlawfully committing preparatory acts, by unlawfully exploiting maturing business opportunities which were the property of Berryland, and by failing to blow the whistle on the activities of the others and, in Indiren's case, on his own activities. I also hold that they were parties to an unlawful conspiracy to damage Berryland's business by these unlawful means.

Ramasan's involvement in the conspiracy was almost entirely passive, his only active role being to lend his name to the incorporation of BK Books and, apparently, to pay the costs of its establishment (although he did not dissent from Indiren’s suggestion that he may have been reimbursed for at least part of these costs after Indiren had taken over BK Books). I have anxiously considered whether that limited involvement is sufficient to render him liable as a party to the conspiracy to injure Berryland by the use of unlawful means. Not without some hesitation, and on the basis of my findings, and for the reasons, set out in relation to Ramasan at paragraph 28 above, I hold that Ramasan’s conduct is sufficient to render him liable in the tort of conspiracy.

Were it necessary to do so, I would hold that each of the defendants knowingly assisted the breaches of duty of the second to fourth defendants (as appropriate). However, I do not consider that a knowing assistance claim adds anything to the other causes of action on which Berryland has succeeded in this litigation. The same applies to the claim that Indiren (at least) induced Helen and Sophie to breach various of the contractual duties that they owed to Berryland. I should, however, record my doubts as to whether inducing them to resign from Berryland is capable of amounting to a tortious act because it does not, of itself, amount to any breach of contract. Performing work for BK Books during their respective notice periods is, of course, an entirely different matter.

It follows from my findings of fact that, in my judgment, BK Books was, and is, to be treated as Indiren’s alter ego. As such, his knowledge is to be attributed to BK Books; and it should be treated as a party to the conspiracy to injure, as under a liability for knowing assistance, and as jointly liable with Indiren for the tort of inducing breach of contract.

In the claimant’s final written submissions it was acknowledged that Berryland no longer alleged that the BK Books’ products generally infringed Berryland’s copyright, but that the claims arising from the “Sudoku” books remained. I make no finding as to whether the defendants infringed any copyright enjoyed by Berryland in the “Sudoku” books because it is neither necessary nor appropriate for me to do so. I am satisfied that, as a matter of law, copyright is capable of subsisting in the “Sudoku” books: see the Copyright, Design & Patents Act 1988 section 9 (3); Copinger & Skone James on Copyright, 15^th ed (2005) paras 3-26, 3-147 and 4-17 and Express Newspapers Plc v Liverpool Daily Post & Echo Plc [1985] 1 WLR 1089 at 1092F-1093C, 1093G and 1094F-1095C per Whitford J. However, Berryland has produced in evidence a deed dated 5 June 2006 purporting to assign its copyright in (among other works) the “Sudoku” books to Standard. The defendants dispute that this is a genuine document. However, Standard is not a party to these proceedings; there is no expert evidence on this issue; and, whilst the single person who executed this document for both Berryland and Standard has not been identified, it is common ground that it is neither of Berryland’s witnesses, and thus resolution of the issue of whether this document is indeed a forgery cannot impact upon the credibility of their evidence. In these circumstances, I do not consider that I should venture upon the difficult task of deciding, on incomplete evidence, and in the absence of all relevant parties, whether (contrary to the claimant’s case) this document is a forgery. On the claimant’s own evidence and case, Berryland has no claim to copyright in the “Sudoku” books. It is therefore unnecessary for me to decide whether Berryland ever enjoyed copyright in the “Sudoku” books. An email from Helen to Book Matrix dated 1 December 2005 purports to record Helen’s appreciation (in my view mistaken) that “Sudoku puzzles are just mathematical puzzles and as such cannot be copyrighted”. Berryland asserted, in closing, that this email was a fabricated document, produced as part of a wider stratagem on the part of the defendants falsely to deny Berryland’s ownership of copyright in other of its works. It is strictly unnecessary for me to decide this issue; but, in fairness to Helen, I should say that Berryland has not satisfied me, on the evidence, that she deliberately manufactured this document with a view to deceive.

Berryland claims that the second to fourth defendants have wrongfully retained a computer database containing details of suppliers and customers of Berryland’s products and other contact details; and that this amounts to an infringement of its copyright under the CDPA 1988 and also the Copyright and Rights in Databases Regulations 1997. Berryland accepts that there is no direct or documentary evidence that such a database ever existed, but it submits that its existence should be inferred on the balance of probabilities. This is denied by the defendants, who say that it was unnecessary for there to have been any such database, given the modest size of Berryland and the scale of its commercial operation up to November 2006. The defendants also point to the failure to give full and proper disclosure of all the material downloaded from Sean’s laptop, which might tend either to support, or to refute, the existence of any such database. Absent any evidence, from Ranjith or otherwise, as to precisely what was found on Sean’s laptop, and on Berryland’s own computers, in November 2006, I am not satisfied that the claimant has made out its case that any database capable of attracting protection under the 1997 Regulations, still less the 1988 Act, ever existed. Clearly the second to fourth defendants’ several email accounts would have been capable of automatically generating the email addresses of the recipients of earlier emails; but I understand it to be accepted by Mr Quiney, and in any event I hold, that this does not satisfy the requirement, in regulation 13, of “a substantial investment in obtaining, verifying or presenting the contents of the database” which must be present before a relevant property right may subsist in a database under the 1997 Regulations, or for a database to qualify as an original work under the 1988 Act. Berryland has not made out this aspect of its claim against any of the defendants.

I shall order an enquiry as to damages. I shall hear submissions as to the terms of, and directions for, that enquiry. I also invite submissions as to costs.

I record my appreciation for the considerable assistance, and the consideration, that I have received from Mr Quiney, from Indiren, and from Helen. Sophie and Ramasan (and to a lesser extent Helen) have left it to Indiren to conduct the defence of this case on their behalf. Whilst the outcome has not been that for which they would have wished, they have reason, nevertheless, to feel grateful for his efforts on their behalf.