Richmond v Selecta Systems Ltd

This is my judgment on claims made at trial by the claimant against his former employer, the defendant company. The primary claim is in respect of an alleged breach of a contract said to have been made between the parties when the claimant left the defendant's employment. A secondary claim concerns interference with and damage to the claimant’s online accounts with internet service companies. Both claims arise out of events which took place in January and February 2016. There is also a counterclaim by the company.

In the briefest summary, the claimant says that an agreement was reached between the parties as to the terms upon which the claimant was to give up his employment, but that the defendant has not honoured the agreement in large part. The defendant denies that any such agreement was reached. In addition, the claimant says that the defendant interfered with the claimant's personal internet accounts, that is, his personal AOL email account, his Apple iTunes account, his LinkedIn account and his WhatsApp account, so that these are no longer accessible to him (though he has since set up a new Apple ID). The defendant accepts some (though not all) the interference alleged, but says that this was authorised by the claimant or was otherwise justified. Finally, the defendant makes a counterclaim for the return of a Mercedes motor car of which the claimant had been allowed the use during his employment, but which he has retained. The defendant says that this car became his pursuant to the agreement he alleges.

The claim form was issued on 22 September 2016, and the amended particulars of claim were finally served on 17 May 2017. An amended defence and counterclaim were served on 1 June 2017. The amended reply and defence to counterclaim was served on 14 June 2017. Directions were given by District Judge Rowe on 6 March 2017. In particular, her order included a direction that no permission was given for expert evidence, and another that the trial time estimate was 4 days, including half a day for judgment, but not including reading time. After having read the papers before the trial began, I said at the beginning that I thought that this timetable was optimistic. In an effort to make the case fit the allotted time, I limited the time available for cross-examination of the two principal witnesses (one on either side) to approximately one day each. I am satisfied that this was sufficient to allow the important differences in their evidence to be explored. In the event, however, the trial still took five days rather then four, having to be adjourned after the fourth day to a final day in May 2018, and judgment was reserved rather than given there and then. I do not criticise anyone for the underestimate of time, but it is nevertheless unfortunate. At the trial the claimant was represented by Charlie Newington-Bridges and the defendant by Stewart Chirnside. I am grateful to them both for their submissions.

At the outset, two matters were raised for my ruling. One was in relation to the timing of a hearsay notice concerning the evidence of one of the witnesses for the claimant, Mr Scot Starkey. It was argued that this had been served out of time and that the claimant needed relief from sanctions. The other was in relation to the admissibility of evidence of another of the claimant’s witnesses, Mr Peter Creber, which was objected to on the basis that it was expert evidence for which no permission had been obtained. At convenient moments in the trial, I gave rulings in relation to each of these matters, with reasons for these rulings. In relation to the hearsay notice I considered that there was no need to extend time for the service of the hearsay notice but that if this was a case where relief from sanctions was required, then it should be given. Obviously the court can give less weight to hearsay evidence than to live evidence. In relation to Mr Creber, I ruled that most of the evidence which he proposed to give in his witness statement was evidence of fact rather than of opinion, and that no permission was needed to adduce it. However, there were a few sentences in his witness statement which I ruled inadmissible as opinion evidence.

This is a case where there is a very sharp conflict of evidence about certain events that are alleged to have taken place. Sometimes a conflict of evidence is due simply to a mistake, or a memory failure, by one or both parties. To a certain extent, this may also be the case here. But in other respects it is more difficult, and it may be that on certain points either one witness or another is not telling the truth. It is therefore of some interest to the parties (being laypeople rather than lawyers) to set out in brief summary form how the court decides civil cases of this kind.

Judges do not have super-human powers. On the contrary, they are human, and fallible, like any others. That is one reason why there are courts of appeal. So judges decide what are the facts in a particular case in accordance with certain principles. I am not going to set out all the rules here. The lawyers involved in this case will be well aware of them. But there are three general points which the parties may not know and which I should draw to their attention. The first is that, in our system, it is for the parties to seek out and place before the court the material which they consider will assist the court and promote their case. It is not for the court to investigate of its own motion. Other relevant witnesses or material may possibly exist somewhere else, but it is not the duty of the court to look for them or it. In general terms (and subject to the third general point to which I shall come), the court makes a decision only on the material put before it by the parties. This makes the process fair, in that in that way each side can see, evaluate and criticise the other’s evidence.

The second point is that, in English civil procedure law, one party or the other bears the burden of proving any particular matter in issue between them. If the person bearing that burden satisfies the finder of fact (in this case the judge), after considering the material before the court, that on the balance of probabilities a thing happened, then, for the purposes of deciding the case, it did happen. If that person does not so satisfy the fact finder, then that thing did not happen. The system is binary, and the judge decides on the basis of the burden of proof. There is thus no room for maybe: see Re B (Children) [2009] 1 AC 11, [2], per Lord Hoffmann. It is of course the judge’s job to assess the credibility of the witnesses, and to choose between conflicting evidence, if he or she is able to do so. But if, after having attempted to resolve the issue, the court is unable to make a positive finding on the evidence, that issue can be resolved by reference to the burden of proof: Constandas v Lysandrou [2018] EWCA Civ 613, [22]-[27].

The third point is that, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the Court to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing: see Wisniewski v Central Manchester Health Authority [1998] PIQR 324, CA; Jaffray v Society of Lloyds [2002] EWCA Civ 1101, [406]-[407]; Thames Valley Housing Association v Elegant Homes (Guernsey) Ltd [2011] EWHC 1288 (Ch), [19].

Added together, these points mean that the decision of the court as to what happened is not necessarily the objective truth of the matter or matters in issue. Instead it is the most likely view of what happened, based on the assessment by the court of the witnesses and the other evidential material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to.

Finally, although judges must take into consideration all the evidence presented and weigh all the arguments made, they are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered: Weymont v Place [2015] EWCA Civ 289, [6]. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence: see eg Biogen Inc v Medeva plc [1997] RPC 1, 45.The conclusions to which I have come below must be seen in that light.

I heard from the following witnesses. For the claimant I heard from Mark Richmond, the claimant; Valerie Babington, his wife; Lisa Fogarty, a former work colleague at the defendant (now self-employed); and Peter Creber, a non-lawyer partner in the claimant's solicitors. For the defendant, I heard from Mark Weihe, the managing director of the defendant at the time of the events in question, and still the majority shareholder in the company; Jane Bushell, the head of human resources at the defendant; Robert Heeley, general manager at the defendant; Andrew Green, the defendant's current sales director (in succession to the claimant); and Stephen Keyte, an employee of the defendant (and formerly employed on an occasional basis by the claimant personally). In addition, and as I have said, I admitted the statement of Scot Starkey dated 28 May 2017 as hearsay, by virtue of an undated hearsay notice, which I was told was served by the claimant’s solicitors on 13 March 2018.

I give here my assessment of those witnesses who gave live evidence before me. The claimant was a rapid and forceful speaker who frequently overstated his case. He gave complicated explanations which were sometimes difficult to follow. Occasionally he focused on small points or small differences between one document and another, rather than on the bigger picture. Where the question put to him was difficult, he often answered a different one. He was occasionally caught in an inconsistency, and typically responded by saying that he could not answer the question. I think that most of the time he was telling the truth as he understood it, and in that respect I think he had convinced himself that he was right. However, on some important points I think he was wrong and I cannot escape the conclusion that in at least some of those cases he knew he was wrong but said it anyway.

The claimant's wife, Valerie Babington, was a calm, businesslike and intelligent witness. Her evidence was fluent and (so far as it went) complete. She did not give speculative evidence. Overall she was an impressive witness, and I think I can place reliance on what she said where her evidence was original and independent of others, even where it conflicts with other evidence. But in fact most of her original evidence was peripheral to the main matters which I must decide. And, where her evidence was more central (for example, as to the alleged agreement reached on 29 January or 11 February 2016) it could only be based on the claimant’s own evidence, since she was not present at the relevant meetings. So in that respect it adds nothing to that evidence.

Lisa Fogarty formerly worked for the defendant, assisting the claimant in his job. She is now self-employed, although she still lives in a house which belongs to the claimant. She gave her evidence in a fluent, open and transparent way. She was a calm and clear witness. But she also gave the impression of a witness who wished to do what she could to assist the claimant. For the most part, I consider that she was telling the truth. On one or two points, I am afraid that I am not so satisfied.

Peter Creber was called to give evidence about how certain internet accounts operated on an Apple iPhone. For the most part, this involved exhibiting and commenting on instruction leaflets and manuals produced by others, notably the internet service provider AOL and the iPhone manufacturer Apple. He was plainly telling the truth in what he told me. I accept his evidence without any reserve.

Mark Weihe was a logical and very exact, indeed literal witness. His first language is German but he gave his evidence in English without the need for an interpreter. He answered all the questions that were put to him in a similar way, without hesitation, whether the answers favoured his case or not. He made a number of admissions of interfering with the settings on the claimant's internet accounts with AOL and iTunes, believing himself to be authorised to do so, in defence of the defendant company's commercial and property rights and interests. When he was shown to be wrong about anything he admitted it immediately. He was an impressive witness. On one or two points I think he may have been mistaken, but as a general proposition I accept his evidence as truthful. He was heavily attacked for making a supplemental witness statement during the hearing which gave detail, especially in relation to how he had made use of the claimant’s login and password details, which he had been unable to recall earlier. I reject this criticism. It is common enough for witnesses to be prompted to recall matters which previously they could not recall by focusing on the details of the trial and hearing the evidence of others. I am satisfied that in his supplemental witness statement Mark Weihe was trying to help the court and give as much detail as he could.

Jane Bushell was a clear and straightforward witness, giving very precise evidence, neither overstated nor understated. She was quick and knowledgeable when answering questions. So far as I am aware, she has no axe to grind in this matter, beyond of course the fact that she is employed by the defendant company. In my judgment she was transparently telling the truth, and I accept her evidence without any reserve.

Robert (“Bob”) Heeley gave rather qualified evidence. Many of his answers were that he could not comment on the subject matter of the question. He was slow speaking, and perhaps rather laid-back. Some of his answers tended to be dogmatic. I accept his evidence where it does not conflict with that of others. In other cases, I exercise more caution.

Andrew Green was a clear and straightforward witness, although sometimes an uncomfortable one. He occasionally appeared to be shrinking from the questions put to him, although I do not think that this indicates that he was not telling the truth. I think rather that it indicates that he felt himself to be out of his comfort zone. On the whole, I am satisfied that he was telling the truth.

Stephen Keyte was an unsatisfactory witness. He adopted a rather uncompromising stance towards many of the questions put to him. He was occasionally obstinate in his answers, and he struggled with hypothetical questions. He was sometimes mistaken, and sometimes he changed his mind from one moment to another with no apparent qualms. It was difficult to believe some of his answers. I have treated his evidence with significant caution, although this does not mean that I do not accept any of his evidence. On the contrary, I accept much of it, especially where corroborated by other evidence.

On the basis of the live evidence tendered to me, and the other materials admitted in evidence, I find the following facts. The defendant company is based in Birmingham, and carries on the business of selling extruded PVC products. It does not sell them as finished products to retail customers, but as kits to trading companies who make up and finish the products and sell them on to their own customers. Although the company is English, the owners are German. At the time of the events described in this judgment, Mark Weihe was the managing director. He has now handed over that position to his son. Mark Weihe speaks very good English with a German accent and, although he lives most of the time in Germany, and retains his German culture, he appears to understand the English culture well. But he is first and foremost a businessman, and the company is in the business of making money. Throughout his evidence he displayed the desire to protect the business of the company even if that was difficult or involved unpleasant tasks, such as managing a long serving employee out of the company.

The claimant was a very experienced sales representative who was recruited to the company by Mark Weihe over 20 years ago. He worked hard and was good at his job. He was subsequently promoted to sales director and ran the sales team. His career in sales in this industry started at a time when the environment was very male, and before the advent of IT. He seems to have been very status conscious, needing to be seen to drive a suitably impressive motorcar, to have staff beneath him and to behave in what we might now describe as a typical alpha male way. He plainly worked very hard, and drove the length and breadth of the country in order to chase sales and close deals. Although he lived in Birmingham, he had a holiday home in Dartmouth and spent time there.

In 2006, very unfortunately, his first wife died. Mark Weihe attended the funeral. Thereafter the claimant spent more time in Dartmouth, and in substance relocated to the south-west. Although he lived in Dartmouth at the weekend, he drove off early on Monday morning either to visit customers or back to the defendant company's offices. So far as it matters, I find that the claimant did not spend Mondays at home in Devon on a regular basis. He let his house in Birmingham, and (with the company's permission) installed a caravan at the defendant company’s offices, as a place in which he could stay during the week, when he was not on the road visiting customers. On Fridays he would often leave at lunchtime to drive back to Devon where he would once again spend the weekend.

He gave evidence that he thought of Mark Weihe as a friend more than an employer. He said they got on well, and sometimes went out together. I think the claimant is rather overselling himself here. It is clear from the evidence of Mark Weihe (and I find) that this was a clear relationship of employer and employee and nothing more. But the claimant’s view may simply be consistent with the nature of a salesman's outlook, to be positive about achieving an objective. In the autumn of 2015 the claimant married Valerie Babington, a businesswoman. Mark Weihe was a guest at the wedding. Mrs Babington owned a property in Tiverton and the claimant lived with her there.

At a certain point Mark Weihe offered the claimant the opportunity to buy a small shareholding in the company at a discount to the real value. His intention, as I find, was to bind the claimant more closely into the company, and stop him from thinking about leaving. The claimant seems to have misunderstood the nature of this transaction, and thought that he was actually being given shares in the company for nothing. In fact, it was his wife, Mrs Babington, who put him right about this. The claimant also gave evidence that he received a bonus in cash in two instalments every year, January and July. Mark Weihe in giving evidence denied this. Apart from their witness statements, the evidence before me was very thin. The documentary evidence was inconsistent with such bonuses being paid. I see no good reason why Mark Weihe should pay cash bonuses to the claimant, avoiding tax and national insurance, when in other respects the defendant company appears to have complied with all its obligations. In case it matters, I hold that the claimant has not proved that he received any such cash bonuses.

Although the defendant company had originally been happy with the work done by the claimant, by 2015 matters had changed. A number of aspects of the claimant’s conduct were causing concern. A file was maintained by the human resources department of the defendant which recorded in file notes a number of alleged incidents. These included allegations by other employees against the claimant of bullying and intimidation, and also sexual harassment, but also of taking company property without authorisation for personal use, telling the customers that the products were no good and telling customers that the company did not need their business. For present purposes, it is not necessary to determine whether any of these allegations is actually true, and I do not do so. It is only necessary for me to find (as I do) that Mark Weihe knew of them, at least in a general way.

In December 2015 Mark Weihe was made aware that the claimant had asked for copies of client information to be made for him to keep at home. This included copies of customer contact information but also of discounted price lists. The latter were commercially sensitive. In evidence, Mark Weihe said that there was no reason for the claimant to need the discounted price lists for his work, even if he needed the contact details. The claimant disagreed. I accept the evidence of Mark Weihe on this point.

By early January 2016, because of the various problems which Mark Weihe considered that the claimant was creating for the defendant company, Mark Weihe had made the decision to manage the claimant out of the company. The claimant was due to go away for a week's holiday at the end of January. Mark Weihe was determined to get back the price lists at least before he went away. He did not want the claimant to leave, and then perhaps to join a rival company, whilst having these price lists in his possession. So he summoned the claimant to a meeting on 29 January 2016. But before the meeting began he passed by the claimant's office and saw his (defendant company-provided) iPhone 6. On the spur of the moment he took it away and hid it in his own office. He was concerned that if the meeting ended with the claimant leaving the company immediately, there might be some important company information on the phone, which the claimant might then take away with him.

There is an acute conflict of evidence as to what happened at the meeting on Friday, 29 January 2016. It took place in the claimant's caravan. It lasted between 1 and 2 hours. I find that what happened was that Mark Weihe was determined to retrieve the files including the price lists and asked the claimant where they were. So the first part of the meeting (and the longest) concentrated on the whereabouts of these files. The claimant first of all denied having them and after a long discussion (in which he had first said that he had had them but destroyed them) he admitted that they were at his home in Devon. Mark Weihe said that he would drive down behind the claimant later that day in order to retrieve the files and bring them back. I find that there was then a general discussion about the claimant leaving the defendant, but in outline only. The claimant, as was usual in negotiations, would have said what he was looking for. In my judgment, at this meeting it was accepted in principle between them that the claimant would leave the company, and that the claimant would receive a compensation package, but there was as yet no agreement as to the terms of that package. Primarily this was because Mark Weihe was unwilling to reach any kind of binding agreement until he knew that he had the files back.

After the meeting was over, the claimant reported that his iPhone 6 was missing, and he was issued with a further company phone, a model iPhone 4. Meanwhile Mark Weihe asked the general manager, Bob Heeley, to look out a draft agreement for dealing with the termination of the claimant's employment with the defendant.

The claimant and Mark Weihe left the defendant's premises and drove down (in separate cars) to Devon in order to retrieve the files of customer information. When they arrived at the claimant's home in Tiverton (which belongs to his wife) his wife was not present. When his wife returned home she found them both there with the files. She detected an awkward atmosphere. Eventually Mark Weihe left with the files, and drove back to the Midlands. On being challenged by his wife, the claimant told her that he was leaving the company. They then went away on holiday together for a week. During that time he was unable to use the company iPhone 4 at all, as it appeared not to have been activated. As a St Valentine’s day present, his wife arranged with her own office to acquire a new iPhone 6 for him. However, on 7 February 2016, after his return from holiday but before the iPhone 6 arrived, the claimant acquired a cheap pay-as-you-go phone in order to be able to make and receive telephone calls and to stay in touch. In fact, his new iPhone 6 arrived the next day at his wife’s office. Mrs Babington set it up for him that evening, as the claimant was not very good with IT systems. The new phone made use of his Apple ID and account and linked to his AOL email account. He was thereafter able to use the new iPhone 6 for the purpose of accessing email and iTunes, although, as we shall see, only for a brief period.

There was then a further meeting between the claimant and Mark Weihe, on Thursday, 11 February 2016. This was a much shorter meeting than the first one. Before it took place, Mark Weihe made some notes on a sheet of paper (4/826). On the left-hand side he listed a number of matters which he wished to deal with. These include the return of the replacement phone, his keys and his fuel card, an outstanding cash float of £400, the Mercedes company car, the two iPads (both now destroyed) that he had had during his time with the company, a trailer belonging to the company, which he had kept in Devon, and invoices for goods which he had taken from the warehouse with a value totalling £5000. At top right he wrote down the claimant's annual salary, £65,000. During the meeting he made further notes on the same piece of paper, which are found at the right hand side and towards the bottom. By the time of this meeting, Bob Heeley had produced a draft settlement agreement for Mark Weihe's consideration. It had a lot of blanks in it, for example as to the amount of any compensation that was to be paid to the claimant. It was merely a draft.

A discussion took place at the meeting as to the terms on which the claimant would leave the defendant. There was an element of negotiation, in that an offer was put forward by one and a counter offer was made by the other. Mark Weihe offered one year’s salary to the claimant on the basis that he stayed out of the industry for a year. The claimant suggested that he agree not to work in the industry for two years, that he received two years’ salary, and that the company should write off the cash float and leave him with the Mercedes, the trailer and the items which he had taken from the company. He also then asked for various further items for his house. The effect of this negotiation was to establish the general outlines of an agreement, rather than its precise terms. But Mark Weihe made clear to the claimant that any agreement between them would be conditional on the claimant’s agreeing not to “bad mouth” the defendant, and on a suitable confidentiality clause. This is supported by the two draft settlement agreements that were produced and also the claimant’s own letter of 28 February 2016.

It is clear on the evidence that Mark Weihe only envisaged an agreement being reached in a written form containing all the terms which he wished to see included. He knew that this was important from an employment law point of view. And, as a German, his culture sought the security of signed writing. I bear in mind also the evidence of Jane Bushell in her witness statement that she had never known an employee to leave the defendant company with a compensation package and yet not have an agreement in writing that waived potential employment claims. So I find that Mark Weihe told the claimant that he would put something in writing and send him a draft agreement to look at, and that this would need to include a confidentiality agreement and an obligation not to “badmouth” the company. Nor was anything agreed as to what were the precise terms of the two-year restriction.

I have no doubt that Mark Weihe came away from that meeting thinking that he had the broad outlines of a deal which was not yet complete but would be further refined before being signed up to and any money paid. It is possible that the claimant saw things in a much more salesman-orientated way than Mark Weihe. Perhaps to him the only things that mattered were the product and the price and he was concerned simply to get the “customer” (here Mark Weihe) to Yes. That was his job, after all. The claimant may therefore have come away from that meeting thinking that he had closed a deal, even though, as he himself recognised, there were terms still to be agreed, and it had not been finalised. It is telling that Andrew Green’s evidence in his witness statement was that on 11 February 2016 the claimant told him that he did not yet have a deal. Either way, I do not accept the claimant thought a deal had been finalised on 11 February 2016. There was a further stage to come, when the defendant’s written draft settlement agreement would be put in front of him for consideration.

In addition, I find that there was some confusion between the parties as to the amount of the compensation which the defendant company was prepared to pay. It arose in tandem with an uncertainty as to how much money could be paid on termination of employment tax free under UK law, and how much would be subject to tax. Both the claimant and Mark Weihe appear to have been under the impression originally that the tax-free maximum was £40,000. But, before the meeting on 11 February, Mark Weihe discovered that the limit was in fact £30,000. The claimant says that this was to be a sum in addition to two years’ salary. Mark Weihe says that it was to be part of the sum amounting to two years’ salary.

In my judgment, the claimant's view is wishful thinking on his part. He has convinced himself that that was what was being discussed. But it makes no commercial sense. Those negotiating terms of settlement of claims arising on a cessation of employment invariably negotiate the amount of compensation, and then the first £30,000 is paid tax-free. The relevant term in the draft agreements put before the court is put in conventionally careful terms, to the effect that the parties believe the effect in UK tax law is so, but the employer does not guarantee it. I do not accept that Mark Weihe was willing to agree to pay two years’ salary and an extra £40,000 (or £30,000) on top. This view is consistent with the contemporaneous documents in the bundle, in particular Mark Weihe’s handwritten note of the meeting (4/826), the second version of the draft settlement agreement (4/806), an email from Bob Heeley to Mark Weihe of 12 February 2016 (4/830), and an email from Steve Lilleyman to the claimant of 18 February 2016 (3/533). Nor do I accept that Mark Weihe did anything to encourage the claimant to believe that he was willing to pay £40,000 or £30,000 in addition. If the claimant believed that he was, then he has deceived himself. There was no “agreement” (even provisional) between the parties on this point.

The claimant's evidence to me at trial was that he regarded the final figure of £30,000 tax-free as representing a reduction of £10,000 in his compensation and that he therefore agreed other things to make up the difference. These included the company Astra motorcar, a trailer, various items taken from the stores which the claimant intended to use in refurbishing his property in Dartmouth and so on. These were not worth anything like £10,000, as the claimant accepted in evidence. In my judgment the true position is that Mark Weihe really did not care about these. I am not sure that the claimant did either. He was negotiating, as every good salesman always is. The practical reality is that, if the claimant seriously thought that he was losing £10,000 but was willing to take these (not very valuable) things in exchange, Mark Weihe was not going to argue about it. He wanted the claimant out of the company as soon as possible.

It is accepted between the parties that the claimant handed back his iPhone 4 at this meeting. It is also accepted that Mark Weihe asked for and was given at least the password for unlocking this phone. Mark Weihe says further that he asked for the passwords to the claimant's Apple account and his AOL email account, and that the claimant gave them to him willingly, as he had nothing to hide. The claimant denies that he gave them. Now, it is clear that Mark Weihe was able a day or two later to access both the Apple account and the AOL account, and that therefore he had those details by then. The dispute is as to how he knew. The claimant says that Mark Weihe knew because Mark Weihe asked Lisa Fogarty (who assisted the claimant, especially with IT matters, at which he was not good) and Lisa had told him.

Lisa Fogarty's own evidence originally was that she had logged into those accounts in the presence of Mark Weihe, and Mark Weihe must have seen what the passwords were. Mark Weihe in his statement says that he turned his back when that was happening. However, at the trial, Lisa Fogarty produced copies of text messages showing that on 31 January 2016 Mark Weihe asked her for the passwords and that she supplied them to him by return, although he then told her in another text that he had decided not to use them at that stage, because he had realised that the system would alert the claimant by email to the fact that someone else had used them (according to Lisa Fogarty’s witness statement, Mark Weihe confirmed this to her on 11 February 2016). So Lisa Fogarty’s original story was not correct. It may have been caused by fear that she would lose her home (which she rented from the claimant).

But the further question is whether, at the end of the meeting on 11 February, in addition to obtaining the four digit entry code to unlock the iPhone 4, Mark Weihe asked for and the claimant gave the further passwords for both the Apple and AOL accounts. As I have said, Mark Weihe’s evidence was that he asked the claimant for these details, for the purpose of checking the phone for company information, and was given them willingly by the claimant. The claimant denies this. His evidence was that the only thing he was asked for, and gave, was the 4 digit entry code to unlock the phone. Now, as I have held above, Lisa Fogarty had in fact already told Mark Weihe what the further details were, on 31 January 2016, but Mark Weihe did not want to use these details at that stage because the system would inform the claimant that someone had them, and the claimant would have known that Ms Fogarty would have been the only source. Hence he had every reason to try to obtain them from the claimant himself.

I therefore find that, contrary to the claimant’s evidence, Mark Weihe did ask the claimant at the end of the meeting for the further details. I further find that the claimant did indeed supply them. He had no reason not to trust Mark Weihe at that stage and, as Mark Weihe himself said in evidence that there was no sensitive company information to be found on the phone, indeed he had nothing to hide.

Lisa Fogarty gave evidence at the trial that, probably on 11 February 2016, Mark Weihe asked her to change the password for the claimant’s AOL account. She said she changed it to something like MontyXXX. The defendant suggests that this evidence is mistaken because the problems which subsequently arose for the claimant in accessing iTunes arose only on 13 February 2016. In my judgment this is not a sufficient reason for disbelieving Ms Fogarty on this point. The claimant would not know until he tried to download his iTunes library that he could not do so, and the first time that he attempted to do so (according to his evidence, and to that of Mrs Babington) was 13 February 2016.

Also on 11 February, the vehicle registration document for the Astra was made over to the claimant and the trailer was loaded up with claimant's possessions and the additional property which he was taking with him. The claimant handed over his company credit card and keys. It was agreed that on the claimant leaving the defendant's employment the caravan would belong to the defendant. The claimant said goodbye to some of the staff at the defendant. The personalised company number plates (“P70 PVC”) on the Mercedes motorcar were changed to standard plates, so that the claimant could drive it away. But, unlike the case with the Astra, no change was made to the vehicle registration of the Mercedes, of which the defendant therefore remained the registered keeper.

On the following day, Friday 12 February 2016, the defendant company put out press releases saying that the claimant had left the defendant. The defendant's evidence was that this was a mistake and that subsequently the defendant tried to recall these statements. The claimant says that they are additional evidence tending to suggest that the agreement had been reached between the parties. I do not agree. I accept the evidence on behalf of the defendant that they were issued prematurely by mistake. (The approval of them by Mark Weihe by the single word “okay” in an email dated 11 February 2016 and timed at 17:53 does not make clear to Mark Walker, the marketing and design manager, that they were not to be made public immediately.) The fact that the defendant attempted to recall the press releases once they realised that they had gone out supports this. It is also to be noted that the claimant was paid by the defendant up to the end of March 2016, as his payslip dated 31 March 2016 shows (3/555). As I have already said, Mark Weihe had already decided that the claimant would be leaving and that it made sense to get him off the premises sooner rather than later, together with his possessions. But that did not mean that they had reached a concluded agreement. That was a different question.

The defendant company sent letters to its customers announcing the retirement of the claimant (see the draft at 3/524). The draft did not specify an actual date for the claimant’s retirement. It merely stated that the claimant “has announced his early retirement from” the defendant. This does not demonstrate that an agreement must have been reached between the parties, much less that it took effect on any particular date.

On the same day, the claimant drove over to Dartmouth, where Stephen Keyte was working on the claimant’s holiday home. But the claimant knew that Mr Keyte would be driving up to the Midlands (where he lived) later that day. The claimant reviewed progress on the work being done, and asked Stephen Keyte if he would follow him in his car back to Tiverton, and then give the claimant a lift up to the defendant company’s premises, so that the claimant could collect the Astra motorcar. Mr Keyte agreed to do so. There was an issue raised at trial as to whether during the journey up to the Midlands the claimant made phone calls to customers of the defendant and made damaging statements about the business. Mr Keyte says that he did. The claimant says that he did not.

The claimant says that he had only his new (personal) iPhone 6 Plus with him, and no other mobile phone. He has put in evidence a call log for the duration of the journey with Stephen Keyte, which he has annotated to show who he accepts that he called during that time. Mr Keyte says that the claimant had with him not one, but two mobile phones, the second being a pay-as-you-go phone. Stephen Keyte says that, of the calls which the claimant made, he remembers one to ‘Richard’, apparently a reference to a Richard from Morvern Windows, another to ‘Jason’, apparently a reference to a former colleague at the defendant called Jason Scrivens, and a third to ‘Scot’, apparently a reference to Scot Starkey of Victorian Sliders, a company in the same industry as the defendant. The call log adduced by the claimant shows two calls to Morven Windows, but none to Jason Scrivens or Scot Starkey, or any company with which they are connected.

The claimant’s witness statement exhibits two short statements from Jason Scrivens, the first dated 16 March 2016 and the second dated 28 April 2016. The first denies making or receiving a telephone call to or from the claimant on the afternoon of Friday, 12 February 2016 (mistakenly stated as 11 February). This statement was plainly drafted for Mr Scrivens by someone else, who was not aware of his current employer, because in the second paragraph a statement that he was “currently employed by…” was left blank. The second statement is stated to have been prepared by Jane Bushell. Although it is signed and dated 28 April 2016, it is stated to have been made by Mr Scrivens on 15 February 2016 “by way of a counteraction of a statement prepared by Mark Richmond and signed by Jason on 14 April 2016”. This does not make sense. The most likely explanation is that one or more of the dates referred to is simply wrong. Mr Keyte gave evidence in his statement of having attended the company’s offices on 15 February to give a statement to Jane Bushell, which Jane Bushell confirms. Jane Bushell also says that Jason Scrivens was contacted about giving a statement and attended for this purpose, although she does not give the date on which this occurred. I am satisfied that both events occurred.

In this statement Mr Scrivens says that he was at a tradeshow, speaking to a customer, when the claimant came up to him and said that he had not signed “the statement”, presumably a reference to the (first) statement which had been prepared for him. Mr Scrivens then says that he signed the statement, without properly reading it, in order to get rid of the claimant. He then goes on to say that, despite what is stated in that first statement, the claimant did telephone him on Friday, 12 February 2016, and asked Mr Scrivens to call him back, “as he was on his pay-as-you-go phone”. Mr Scrivens therefore retracted his earlier statement to the opposite effect, signed on 16 March 2016. However, Mr Scrivens was not called by either side to give evidence before me, and neither was any hearsay notice served in respect of either of his two witness statements. They are not therefore formally in evidence before me.

The position is different in relation to the witness statement of Mr Starkey, for which a hearsay notice was in fact served. His statement is dated 28 May 2017. In that statement he says that on Friday, 12 February 2016 he left the UK to travel to China on business. He says he has a clear recollection of this particular date and that he did not make or receive a telephone call to or from the claimant on the afternoon of that day. This is evidence properly before me, although, since Mr Starkey was not available to be cross examined upon it and I could not see his demeanour, it is obviously of less weight than it would have been if he had attended for cross-examination.

Interesting as all this is, I am not satisfied that I need to determine where the truth on this point lies for the purposes of deciding the claims in this action. Whether the claimant did or did not speak to Jason Scrivens or Scot Starkey does not affect whether a contract was entered into between the claimant and the defendant under which the claimant would be entitled to payment of compensation and other benefits. Nor does it affect whether the defendant, by Mark Weihe, actionably interfered with the claimant’s internet accounts, or whether the claimant had become the owner or was otherwise entitled to possession of the Mercedes motorcar.

Mark Weihe took the iPhone 4 handed back to him by the claimant to Germany when he left. Once in Germany, he used the passwords he had been given to go into it and into the claimant's AOL and iCloud accounts, to check for company information on the phone. He found none. However, he found some company customer contact information in the iCloud. Trying to delete this information in the iCloud, he found that he had to reset the password for the AOL account, and then those for the iCloud. This was to prevent the claimant from accessing this information from another device. But it also had the effect of locking out the claimant from his accounts. I accept the evidence of Mark Weihe that he tried to return the AOL password to the original one which the claimant knew, but he failed.

On the following day, 13 February 2016, the claimant attempted to download his iTunes music library to his new iPhone 6, but his Apple ID was not recognised. Despite numerous communications with Apple, the claimant has been unable to restore access to his Apple account and to his iTunes library. He attempted to follow the password reset procedure for the Apple ID, which requires answers to three memorable questions previously registered with Apple. But this screen now loaded in the German language (which the claimant and his wife do not speak). The Apple team advised the claimant that the password reset pages had been accessed from Germany and the three memorable questions had also been re-entered in German. The claimant found that his own answers to these questions were not recognised. With the assistance of his wife (who had greater understanding and experience of IT than he did) he made a number of attempts to retrieve his old Apple ID. These included having to enter correctly the postcode of the place he lived in at the time of setting up the account. Unfortunately he could not remember this correctly, and so this did not succeed either.

In January 2016 the claimant registered a new company in the name of “Doorstep Doors Limited”. He says that he did this because he was considering setting up a small business to sell composite doors in his retirement. The largest composite door manufacturer is a company called “Doorstop International”. The claimant further says that he thought that he might be able to capitalise on the similar name, or alternatively sell the new company to Doorstop International. In his evidence, the claimant said that he had no intention of trying to compete with the defendant company, which manufactured doors and extruded PVC. He would be unable to do that. He would have been selling composite doors directly to the end consumer (whereas the defendant company sold them only to the trade).

Stephen Keyte in his evidence said that, during the journey from Devon to the Midlands on 12 February 2016 the claimant had mentioned to him that he had registered this company and that he intended it to trade. He also said that the claimant had asked him some weeks previously whether he would be interested in working for the claimant to fit windows and doors. Andrew Green also gave evidence that the claimant had asked him to leave the defendant company and join the claimant’s new company. In cross-examination the claimant denied saying this, or that he ever intended to trade through the new company. He said that registering the company was just a bit of fun. But he could not explain why in his witness statement he had said that he did intend to trade. I do not accept the claimant’s denials on this point.

In the event, I do not consider that Doorstep Doors Limited has much relevance to the issues which I have to decide, except that by January 2016 the claimant was already thinking of what he might do after his employment with the defendant company came to an end. And the motives he ascribes to forming the company (capitalising on a similar name to an established business, and perhaps selling the company name to that business) do him little credit. In addition it illustrates that, in some aspects at least, the claimant is prepared to chop and change his story as it seems to suit him.

On 11 February 2016 Jane Bushell emailed the claimant with details of the pension scheme adviser, Steve Lilleyman (4/973). The claimant relies on this as demonstrating that the defendant company had agreed to make a specific payment to him. I do not accept this. The idea that the company should make a payment into the claimant’s pension plan appears to have come from Mrs Babington. She suggested to the claimant after his first meeting with Mark Weihe on 29 January that it might be more tax efficient to take the payment as a contribution to pensions, assuming that his earnings/contributions to date would permit this. But the claimant could not have known without taking specialist advice whether this would be possible or sensible, and so could not have decided at that stage on 11 February as to what to do. I have no doubt that it was wise for the claimant to contact the pension scheme administrator and to obtain advice, but I cannot accept that it shows that the company had by then agreed to pay him anything.

Steve Lilleyman wrote an email to the claimant on 18 February 2016 (3/533) following a telephone discussion between them. In that email he summarised “the points to consider and confirm before agreeing to the part/all of your severance pay as a large pension contribution.” He advised the claimant to be clear on the terms of the severance and the written agreement and check with accountants and legal advisers that the payment qualified as meeting the relevant criteria. This is inconsistent with a final agreement having already been come to, as it is directed to agreeing and drafting the terms of a future agreement correctly, rather than to advising on the effect of what had already happened.

On 23 February 2016 defendant company wrote a letter to the claimant (4/979-980) accusing the claimant of badmouthing the company and withdrawing the offer. This is relied upon by the claimant as showing that the defendant company and he had concluded an agreement. I do not so read it. First of all, what the letter refers to is an “offer” by the defendant company. It does not refer to a concluded agreement. Secondly, what it says is clearly subject to conditions which (on the face of it, at least) have not been met. But thirdly and more importantly the writer of the letter (Mark Weihe) goes on to say “whilst preparing and putting the deal in black-and-white…” This plainly refers to the drafting of a suitable written agreement. The word “preparing” is not appropriate for a written agreement that merely puts into writing that which has already been agreed in binding form.

Jane Bushell, on behalf of the company, wrote a further letter the next day, 24 February 2016 (4/981), informing the claimant that he had been suspended pending investigation into an allegation of misconduct, ie attempting to solicit the company’s clients and damage its business. But it also informed him that he would be paid and receive normal contractual benefits during the suspension. It invited him to attend an investigation meeting on 3 March 2016. The claimant replied directly to Mark Weihe on 28 February 2016 (4/983). This letter was largely drafted by Mrs Babington. It gave the impression that the claimant was threatening to use the information he had copied and kept at home about the company’s clients and the prices they paid as a bargaining counter. I accept that on the part of the claimant and his wife this was not a serious threat, but an unwise negotiating tactic. It certainly did not have the desired effect. The letter went on to say that the claimant was willing to attend a meeting the following week, but not as an “employee” of the defendant, as (in the claimant’s view) his employment had ceased on 11 February 2016. There were further exchanges between the claimant and Jane Bushell on 1-3 March 2016, and the claimant also wrote a more detailed letter to Mark Weihe which, however, went unanswered. The claimant did not attend the meeting on 3 March, and on 10 March Mark Weihe wrote to the claimant informing him that he had been summarily dismissed.

On 14 March 2016, Jane Bushell emailed the claimant to inform him that a collection agent, Oasis Recovery, had been instructed to recover the Mercedes motor car from him, now that he had been summarily dismissed. The claimant’s solicitors wrote back on 15 March to say that he was retaining the car as part of his severance package. On 16 March 2016, Oasis Recovery went to the claimant's home in Devon in order to retrieve the Mercedes. By some means which is not entirely clear, but which probably involved the use of a confidential access code originally provided by the claimant and his wife in the past to Stephen Keyte and Andrew Green, the collection agent was able to enter the gated premises of the claimant's home and attempt to retrieve the Mercedes motor car. However, the defendant’s agent was unable to obtain access to the garage where the car was and to remove it. The agent contacted the police, but they were satisfied that there was an ongoing civil dispute and declined to intervene. Since then it has remained in the possession of the claimant.

Subsequently, the claimant found new employment as a sales representative with another company called Victorian Sliders. He joined that company on 1 May 2016. This company sells vertical sliding sash windows, which originally the defendant company did not do. Unlike the defendant, Victorian Sliders sells them directly to retail customers. In early April 2016 the defendant company announced that it was going to start selling vertical sliding sash windows, having taken the decision to do so some 2 or 3 months earlier, ie at around the time that the claimant left the defendant. Since no severance agreement was entered into between the parties, it is unnecessary for me to consider whether this employment constituted a breach of it.

In view of the facts which I have found, it is not necessary to spend a great deal of time on the law. A large number of cases were cited to me, but I need only make a few references to them. As to the formation of a contract in English law, in RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH [2010] 1 WLR 753, Lord Clarke, delivering the judgment of the court, said:

“45.

The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a pre-condition to a concluded and legally binding agreement.”

Lord Clarke went on to refer to the judgment of Lloyd LJ (with whom O’Connor and Stocker LJJ agreed) in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd’s Rep 601. From that judgment he cited this passage at 619:

“(1)

In order to determine whether a contract has been concluded in the course of correspondence, one must first look to the correspondence as a whole...

(2)

Even if the parties have reached agreement on all the terms of the proposed contract, nevertheless they may intend that the contract shall not become binding until some further condition has been fulfilled. That is the ordinary ‘subject to contract’ case.

(3)

Alternatively, they may intend that the contract shall not become binding until some further term or terms have been agreed...

(4)

Conversely, the parties may intend to be bound forthwith even though there are further terms still to be agreed or some further formality to be fulfilled...

(5)

If the parties fail to reach agreement on such further terms, the existing contract is not invalidated unless the failure to reach agreement on such further terms renders the contract as a whole unworkable or void for uncertainty.

(6)

It is sometimes said that the parties must agree on the essential terms and it is only matters of detail which can be left over. This may be misleading, since the word ‘essential’ in that context is ambiguous. If by ‘essential’ one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by ‘essential’ one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by ‘essential’ one means only a term which the Court regards as important as opposed to a term which the Court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the Judge [at page 611] ‘the masters of their contractual fate’. Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. It happens every day when parties enter into so called ‘heads of agreement’.”

Esssentially, what all this comes down to is that, subject to specific questions of formalities that may be required by law in particular cases, and subject to the limits of public policy, the parties may agree what they like, including whether an agreement is to come into existence immediately, or only on the occurrence of a future event. The fact and terms of any agreement are however to be ascertained objectively. Whether that is because of the operation of the doctrine of estoppel, or for some other reason, I need not pause to enquire.

On the specific question of whether parties intended to be bound only when a written agreement was entered into, I was referred to Whitehead Mann Ltd v Cheverney Consulting Ltd [2006] EWCA Civ 1303, Sir Andrew Morritt C observed (at [42]) that:

“the more complicated the subject matter the more likely the parties are to want to enshrine their contract in some written document to be prepared by their solicitors. This enables them to review all the terms before being committed to any of them. The commonest way of achieving this ability is to stipulate that the negotiations are ‘subject to contract’.”

A specific statutory provision relevant to the facts of this case is contained in s 203 of the Employment Rights Act 1996, So far as material, this reads as follows:

“(1)

Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports–

(a)

to exclude or limit the operation of any provision of this Act, or

(b)

to preclude a person from bringing any proceedings under this Act before an industrial tribunal.

(2)

Subsection (1)–

[ … ]

(f)

does not apply to any agreement to refrain from instituting or continuing before an industrial tribunal any proceedings within section 18(1)(d) (proceedings under this Act where conciliation available) of the Industrial Tribunals Act 1996 if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement.

(3)

For the purposes of subsection (2)(f) the conditions regulating compromise agreements under this Act are that–

(a)

the agreement must be in writing,

(b)

the agreement must relate to the particular complaint,

(c)

the employee or worker must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an industrial tribunal,

(d)

there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,

(e)

the agreement must identify the adviser, and

(f)

the agreement must state that the conditions regulating compromise agreements under this Act are satisfied.

[ … ].”

In his Amended Particulars of Claim, paragraph 10, the claimant claims that the defendant’s actions in relation to his internet accounts amount to “a deliberate and malicious tortious interference” with his intangible property rights. In this connection, I was referred to (i) the decision of Stephen Morris QC (as he then was) in Armstrong GmbH v Winnington Networks Ltd [2013] Ch 156, [58]-[61], and also to (ii) a passage in Clerk & Lindsell on Torts, 21^st ed, [17-31], but in the 22^nd ed, unchanged, at [17-36].

As to the former, the claimant argued in his written skeleton on the law (at [31]) that the paragraphs referred to from Armstrong support the view that

“there is a cause of action in tort whether or not [a carbon emission allowance known as a European Union Allowance, or EUA] is regarded as ‘intangible property’.”

I am afraid that I do not understand the relevance of this submission. Those paragraphs in Armstrong do indeed discuss the question whether an EUA is or is not intangible property. What they do not discuss is whether there is any cause of action arising from misdealing with them. They form part of a wider discussion leading to the question whether there is something which the judge calls a “proprietary restitutionary claim” in respect of such an EUA. At [92] the judge concludes that:

“if and where legal title remains with the claimant, a proprietary restitutionary claim at common law is available in respect of receipt by the defendant of a chose in action or other intangible property.”

Even so, I do not see how this is relevant to the facts of the present case.

As to the latter, the passage in Clerk & Lindsell on Torts referred to reads:

“It would seem that there is in some cases a sui generis action, distinct from conversion, for knowing misdealings with intangible assets of value, which cause loss to those entitled to the benefit of those intangibles.”

For this proposition, the learned editors refer to the decision in Armstrong. However, in the written submissions of the claimant, nothing further is said as to how this relates to the facts of the present case. I will consider this claim further in applying the law to the facts of the case.

In relation to the tort of negligence, I was referred to Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181, where Lord Bingham said:

“The parties were agreed that the authorities disclose three tests which have been used in deciding whether a defendant sued as causing pure economic loss to a claimant owed him a duty of care in tort. The first is whether the defendant assumed responsibility for what he said and did vis-à-vis the claimant, or is to be treated by the law as having done so. The second is commonly known as the threefold test: whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant (what Kirby J in Perre v Apand Pty Ltd [1999] HCA 36, (1999) 198 CLR 180, para 259, succinctly labelled ‘policy’). Third is the incremental test, based on the observation of Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424, 481, approved by Lord Bridge of Harwich in Caparo Industries Plc v Dickman [1990] 2 AC 605, 618, that

‘It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed'."

The elements of the tort of negligence are well known. I do not consider that it is necessary to cite further authorities.

In my judgment, in the present case there was no agreement concluded between the parties. In the first place, there was no agreement on the amount of the compensation to be paid by the defendant to the claimant. The claimant says there was an agreement for £130,000 plus another £30,000 tax-free. The defendant says it offered £130,000, but subject to contract. So even if the defendant’s offer had been capable of acceptance, the claimant has not accepted it. Further, there was no agreement as to the terms of the non-disparagement clause or the confidentiality clause which were required by the defendant company. Further, the claimant had not decided whether and how much of his compensation (whatever that was) to put into his pension plan. He could not do this without technical advice, which he did not have either on 29 January 2016 or 11 February 2016. The defendant’s letter of 23 February 2016 put an end to the negotiation between the parties.

Even if there had been a complete offer by the defendant otherwise capable of being accepted by the claimant, it is clear on these facts that the intention, objectively ascertained, of the parties was to make any such offer subject to contract, in that a written form of contract was to be prepared and considered before being signed. This is clear from the context, the history of severance agreements made by the defendant company, the cultural context in which the company and its owners operated, and the requirements of section 203 of the Employment Rights Act 1996. For all these reasons therefore in my judgment there is not and never has been any binding agreement between the parties as to the terms on which the claimant should give up his employment with the defendant. That is therefore an end to the contract claim.

As to the claim in respect of the internet accounts belonging to the claimant, I hold as follows. First of all, as there was no binding contract to compromise the potential claims of the claimant, so there could be no term implied into that contract regulating damage to those internet accounts. Secondly, it is not at present clear to me how Armstrong GmbH v Winnington Networks Ltd creates a tort of deliberate and malicious tortious interference, or (if this is different) knowing misdealing. But in any event I am not persuaded that on the facts of this case any such claim would lie. Mark Weihe did not set out deliberately to injure the claimant, but instead to act so as to protect his company’s interests. There was no “knowing misdealing” with the claimant’s intangible property rights. Mark Weihe intended to delete his company’s own information and leave the internet accounts of the claimant untouched, or at any rate in no worse a condition than when he entered them. He thought that he could do this by acting as he did. As it happens, he was wrong, but that does not alter his intentions.

In relation to the tort of negligence, I consider first of all whether the defendant owed the claimant a duty of care in relation to the internet accounts. The defendant’s employees were not prohibited from using company equipment (such as mobile telephones) for personal purposes, although no doubt a term would be implied in the employment contract to prohibit uses which damaged the company (or its reputation) or the equipment itself, or which involved significant expense for the company. But in general terms, and especially in modern times when mobile telephony and data transmission is offered to corporate users on the basis of unlimited use for a fixed fee, it will not be often that use by an employee of his company telephone or laptop for personal purposes will infringe such a term. If employers are concerned to go further in relation to use made by their employees of office equipment, then they should stipulate accordingly in the contract of employment.

Looking at the elements required for a duty of care to arise I consider that (1) loss to the claimant was a reasonably foreseeable consequence of what the defendant did; (2) the relationship between the parties was one of sufficient proximity; and (3) in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant. In particular, Mark Weihe was not an expert in IT or Apple technology, and he was interfering with systems which he did not fully understand. He could easily have sought help from someone more expert, or at any rate refrained from taking steps which might impact on the claimant’s systems without being sure he could restore them afterwards. But he chose not to, and took the risk of causing a serious problem, which in fact he did.

The question then is whether by so acting the defendant breached that duty of care. In my judgment in these circumstances the defendant was entitled to protect its business and its business interests by accessing the telephone to discover whether there was any company information on it and if necessary delete it. The defendant was also entitled in the circumstances in principle to seek to find any such information in the iCloud and delete it there too. Mark Weihe may have been entitled to search the (company’s own) phone for proprietary information, and even to delete it.

The problem for the defendant company is that in his zeal to hunt down the information which belonged to the company and was not to be taken away by the claimant, Mark Weihe went further, and altered important security details of the internet accounts belonging to the claimant. In my judgment, he was not entitled to do that merely in the interests of the defendant company. Nor was he authorised to make those changes by the mere fact that (as I have held) the claimant gave his password details to Mark Weihe. If Mark Weihe was unable with the information he had to take the other steps that he thought were necessary to protect the company’s position, then he should have sought further advice or discussed the matter further with the claimant. Instead he went on and took steps which affected the claimant’s use of his personal internet accounts and ultimately could not be retrieved. In my judgment this was a breach of the duty of care owed to the claimant.

It was argued by the defendant that, even if there was such a breach, it was the claimant’s own failure to remember which postcode was associated with his account which caused any loss which he suffered. I do not accept this. It was the defendant’s own actions, by Mark Weihe, which created the situation in which the claimant found himself. The claimant should not have been put in that position. It does not lie in the defendant’s mouth to say that the claimant should have been able, as a last resort when something goes wrong, to remember details which he input to the system months or years previously. The use of passwords and similar devices for internet security is a proliferating one in our modern IT-driven society. We are constantly told not to write any of them down. We cannot therefore be blamed if on occasion we do not remember those details.

The claimant’s loss in relation to the interference with his internet accounts is the loss of access to his iTunes library and the inconvenience of being unable to access his AOL account, his LinkedIn account and his WhatsApp account. He has now obtained a new Apple ID, but his AOL account has gone. The value of the iTunes library is put at £600. No specific value has been placed on the other losses complained of. The loss of files not backed up and the inconvenience of having to find files elsewhere if possible is modest, but it is not nothing. Overall I consider that the claimant has suffered losses of £1000 in total. The claimant seeks a mandatory injunction to require the restoration of these accounts. In my judgment damages are an adequate compensation, but in any event if the claimant has been unable to restore his accounts in the meantime, there is no prospect of the defendant being able to do so either and an injunction would therefore be futile.

The claimant seeks aggravated damages. But aggravated damages are not available in claims for breach of contract or negligence: Kralj v McGrath [1986] 1 All ER 54 at 61. And I have held that there can be no claim here in “malicious tortious interference”. So there can be no award of aggravated damages. Even if there could, neither the manner in which the defendant has acted, nor the motive for so acting, nor the defendant’s subsequent conduct would justify it: cf Commissioner of Police for the Metropolis v Shaw [2012] ICR 464 at [19]-[22]. Moreover, there is no evidence of any particular distress or injury to his feelings that would justify an award of aggravated damages

I turn finally to the counterclaim for the Mercedes motor car. Unlike with the Vauxhall Astra motorcar, no registration document was ever handed over to the claimant in respect of this car. That is not a document of title, of course, but if ownership had been intended to change hands, one would have expected that document to be handed over too. In my judgment the defendant did not intend to pass ownership of the Mercedes to the claimant by allowing him to drive it away from the defendant’s offices when he left on 11 February 2018. At that stage the defendant company still considered him to be an employee of the defendant company, entitled to his contractual benefits (as made clear in the letter from Jane Bushell dated 24 February 2016). Since I have held that there was no severance agreement including the car, the company was under no contractual obligation to give it to him. The claimant’s case on ownership fails.

By sending the recovery agent for the car on 16 March 2016, the defendant made formal demand for delivery up. The claimant in effect refused. Since the claimant justifies the retention by claiming to be the owner (which claim I have held fails) and does not justify it by (eg) claiming still to be an employee of the defendant, in the light of my holdings the defendant’s cause of action against the claimant was complete on that refusal. In the circumstances I hold that the counterclaim succeeds and the claimant must pay the car’s value as at the time that he refused to return it, ie 16 March 2016. The only useful evidence before me in relation to the value of the Mercedes is an internet valuation for £20,140 in February 2016 (4/798). Whilst that is not March, it is near enough for present purposes. Accordingly, I will order the claimant to pay that value to the defendant.

In conclusion, I dismiss the claim for breach of contract but allow the claim in relation to the internet accounts, and award the claimant £1000 damages. On the counterclaim, I will order the claimant to pay the defendant the value of the Mercedes as at 16 March 2016, assessed in the sum of £20,140.