William Allan Jones & Anor v Andrew Simon Mallett & Anor

The first issue to consider in relation to the claimants’ entitlement to relief is whether they have established anything other than one or two isolated instances of a failure to comply with the Settlement Agreement by the defendants. If so, and if there is no realistic likelihood of there having been other failures to comply, then, particularly given that compliance with the Settlement Agreement in respect of those instances (by way of deletion of the relevant emails) is not opposed, the court would be unlikely to grant equitable relief by way of orders for specific performance of the agreement or injunctions against further breaches.

In addition to the admitted breach of the Settlement Agreement, in relation to the first email, in light of my conclusion on the construction of the Settlement Agreement, the claimants have established that the retention of the second email also constituted a breach of clause 4.2 of the Settlement Agreement. Moreover, the later dissemination of those emails constituted breaches of clause 4.3 of the Settlement Agreement. As I have noted above, the documents retained on Mrs Mallett’s laptop also constituted a breach of clause 4.2 of the Settlement Agreement.

Mr Campbell submitted that I should infer that these are not isolated instances, but that there will have been other breaches of the Settlement Agreement. I agree. The very fact that Mr Mallett has taken the position (wrongly, as I have found) that he was free to retain any documents in his possession as at the date of the Settlement Agreement that he considered belonged to CL or to its clients indicates the likelihood that there were other such documents in that category. (Notwithstanding that the claimants did not rely on any further instances contained within the voluntary disclosure provided by him in January 2022) that disclosure nevertheless showed that was the case.

Mr Campbell relied on a number of other matters to support that inference.

First, he pointed to the inadequate nature of the exercise undertaken in purported compliance with the Settlement Agreement. It appears from the contemporaneous correspondence with HJ that only Mrs Mallett’s laptop was provided to HJ. Moreover, the independent e-disclosure provider was instructed to delete only documents that were flagged for deletion by Mr Mallett and to delete emails to three specific domains/addresses. Importantly, those did not include either Mr or Mrs Mallett’s gmail accounts.

Mr Campbell pointed also to the fact that Mr and Mrs Mallett have maintained throughout these proceeding (both in correspondence from their solicitors, Acuity law – “AL” – and in their witness statements) that the deletion of their electronic documents was undertaken by reference to keywords agreed by HJ with BS, which was simply untrue. I do not find that Mr and Mrs Mallett gave deliberately false evidence in this regard, but I infer that they have maintained this position (despite it being contradicted in correspondence by BS) without having sought to check with HJ. There was no good reason not to do so. Mr Mallett’s suggestion that he did not check with HJ when providing evidence in the earlier injunction proceedings, because he was “tired and frightened” lacked credibility. That demonstrates at best a cavalier attitude towards ensuring compliance with the Settlement Agreement.

Second, Mr Campbell relied on the fact that Mr Mallett has demonstrated a propensity to help others in their disputes with Mr Jones. I was shown numerous examples of documents demonstrating Mr Mallett doing just that. The people he assisted include Mr Proctor, Mr Yorke-Smith, Barry Davies, Mr McCarthy and Richard Jones (Mr Jones’ son). Mr Mallett accepted that he was providing help, in particular, to Mr Proctor and Mr McCarthy in their disputes with Mr Jones. He said that he did so because he regarded Mr Jones as “dishonest”, “dangerous” and “litigious” and he wanted to see that justice was done.

Two other parts of Mr Mallett’s evidence are telling in this respect. First, in answer to a question whether, in emailing Mr Yorke-Smith in December 2016, he was sharing information he had learned while working for Mr Jones, in order to assist someone who was on bad terms with Mr Jones, Mr Mallett said: “the context is I was no longer tied under my employment contract, yes”. Second, he acknowledged that on leaving Mr Jones’ employment he took with him a carrier bag full of documents he had printed off. While he said this was to show to his lawyers in the context of his dispute with Mr Jones, when put in the context of the first point, it suggests that he would have felt no compunction in using documents acquired or generated while working closely with Mr Jones later to help others in dispute with him.

Mr Evans-Tovey objected that there is nothing (whether in the Settlement Agreement or otherwise) to stop Mr Mallett helping others in dispute with Mr Jones. I agree, but this was not Mr Campbell’s point. Rather, it was that the fact that Mr Mallett has a propensity to do this supports the inference that the documents so far revealed to have been retained in breach of the Settlement Agreement were not isolated incidents. That is further supported by Mr Mallett’s conduct in scanning hard copies of historic emails to email to himself or his wife. This, too, suggests a propensity to store documents away for potential future use. I do not doubt – given the clear hostility between the parties – that Mr Mallett genuinely believes that he was serving the interests of justice. His motivation, however, is irrelevant if his conduct involved him retaining Confidential Information in breach of the Settlement Agreement.

On the basis of these matters, I consider it is to be inferred that there are likely to have been a significant number of breaches of the Settlement Agreement beyond those identified in the particulars of claim.

Mr Campbell also relied in support of this inference on the disclosure process undertaken in this litigation. I describe this in more detail below in connection with the appropriate relief. I do not regard it as adding materially to the points made above in support of the inference that there are likely to be further breaches of the Settlement Agreement beyond those already identified.

In the amended particulars of claim the claimants seek orders:

As Mr Evans-Tovey submitted, the relief sought goes significantly beyond the obligations in the Settlement Agreement. First, it seeks relief in respect of “other” confidential information. That, however, was in support of the claim for breach of an equitable duty of confidence, which is not pursued. Second, the only obligation in the Settlement Agreement relating to electronic documents is that they be deleted, whereas the relief sought is that such documents be delivered up to the claimants, and then deleted, and that the Malletts provide a full account, on oath, of what they have done with the Confidential Information since the date of the Settlement Agreement.

Mr Campbell submitted that this extended relief was justified on the basis that, where it was established that there had been a breach of the obligation to delete Confidential Information, it was necessary to order delivery up of documents wrongly retained in order to enable the claimants to see what use had been made of the Confidential Information in the meantime. He submitted that it is open to the court to require an account of the retention and use of confidential information in order to assist in giving effect to the injunctive relief or to assist the claimant in undoing the harm.

In substance, as Mr Campbell accepted in closing submissions, the claimants want two things: (1) compliance with the obligation in the Settlement Agreement to delete Confidential Information; and (2) information, in light of the concern that the non-dissemination obligation has been breached, as to the extent to which Confidential Information has been provided to third parties.

I accept that, in an appropriate case, the court can require information from those found to have breached an obligation, such as that contained in cause 4.2 of the Settlement Agreement.

In support of that point, Mr Campbell referred me to City Site Solutions Ltd v Baker [2023] EWHC 2064 (KB). That case concerned an interlocutory injunction against former employees of the claimant accused of misappropriation of confidential information in breach of the terms of their employment contracts. Nigel Cooper KC, sitting as a deputy High Court Judge, made orders, including that the defendants provide details of confidential information retained by them, and the use to which it was put, and of persons to whom they had provided it. At §76, he said:

“I accept that in principle the Court has jurisdiction to grant a disclosure order of the type sought by the Claimant provided that the purpose of the order is to obtain information which is required to either to assist in giving effect to the injunctive relief or to assist a claimant in undoing the harm, which has been unlawfully done.”

On that basis, while ordering certain disclosure, he refrained from making orders that crossed the boundary into requiring the defendants to identify all that they had done which was or might be wrong.

Mr Campbell accepted that the court has a discretion in determining what, if any, of the various heads of equitable relief sought by the claimants should be granted.

Mr Evans-Tovey submitted that the court should exercise its discretion by granting none of the relief claimed, or at least very little of it. He characterised the claimants’ conduct in this action as precipitous, aggressive and unreasonable, constantly demanding action from the Malletts that goes beyond the scope of the Settlement Agreement, and – whatever the Malletts provide by way of disclosure – coming back with more complaints and queries.

There is clearly considerable hostility and lack of trust between the parties. On Mr Jones’ side that is no doubt fuelled by Mr Mallett’s willingness to help others who are in dispute with Mr Jones. As I have pointed out, there is nothing wrong, per se, in Mr Mallett doing so, provided he is not using Confidential Information.

There are a number of matters to be taken into account in considering the exercise of my discretion as to the relief to be granted.

First, the inadequate nature of the initial compliance with the Settlement Agreement (see paragraph 36 above), exacerbated by the fact that the Malletts have wrongly maintained throughout these proceedings that this was a process which would have identified everything of relevance, because it was done by reference to key word searches agreed with BS.

Second, it is implicit in the defence advanced in these proceedings – that documents received by Mr Mallett from clients in his capacity as director of CL were outside the scope of the Settlement Agreement – that there are other documents within this category beyond the second email (as is confirmed by the fact that others were included in the documents voluntarily disclosed in January 2022).

Third, I find it unlikely that Mr Mallett believed, at the time of the Settlement Agreement, that documents could be excluded from the Settlement Agreement on the basis that they belonged to CL. He did not have a separate email address in his capacity as director of CL, and there was no reference in any contemporaneous communications with HJ that emails might belong to CL rather than him. When Mr Mallett was shown an email from him to HJ from January 2019, in which he referred to not wanting to “lose Ceirios’s own documents”, he suggested that this might – though he could not remember – have been referring to CL. The context (in particular an earlier reference to Ceirios in the same email) shows that this was clearly a reference to his wife. Mr Mallett’s attempt to suggest that it might mean the company was simple opportunism. The fact that he is now seeking to defend the retention of documents on a basis which was not understood to be a justification at the time of the settlement agreement increases the cause for concern.

Fourth, the extent to which there has been compliance with disclosure requirements throughout these proceedings.

Mr Evans-Tovey disputed that there was anything deficient in the Malletts’ disclosure. He pointed to the voluntary disclosure in January 2022. That is undoubtedly a point in the defendants’ favour, although I cannot be satisfied that a sufficiently rigorous search was conducted in order to identify all documents wrongfully retained by the defendants.

He pointed also to the fact that, pursuant to the order for extended disclosure (in March 2024), by reference to keyword search terms, approximately 15,000 documents had been identified, which when reviewed for relevance (to issues in the proceedings, rather than as being caught by the Settlement Agreement) reduced down to 168.

Mr Campbell objected, however, that the keywords used by the defendants were only those which they had identified, and that they had ignored the claimants’ suggested keywords. That issue was resolved at a hearing before HHJ Jarman in June 2024, at which he concluded that the defendants had failed to engage properly with the claimants over the electronic searches they were to carry out. He ordered them to carry out a further search, using the keywords suggested by the claimants. Given that this was estimated (rightly as it turns out) by the defendants to produce a further 87,000 “hits”, HHJ Jarman ordered the defendants to produce at the first stage only a list of the number of hits each keyword search produced, with a view to the parties liaising over how to narrow down the searches.

The defendants reviewed approximately 1000 of these documents, but found nothing of relevance. On this basis, they determined that there was unlikely to be anything of relevance in the remaining 86,000 documents and downed tools.

The claimants contend that this did not comply with the order of HHJ Jarman, which required the defendants to “work with their e-disclosure provider to explore and outline proposals as to how technology can be used to review the c.85,000 documents returned by the keyword searches…” Mr Campbell submitted that the defendants should have used the 178 relevant documents which were obtained from the earlier review (of the 15,000 documents returned when conducting the initial extended disclosure exercise) to assist in training the computer in searching the 86,000 documents for relevance.

In considering this issue, I start from the premise, as found by HHJ Jarman, that the defendants had, prior to the hearing before him, failed to engage properly with their disclosure obligations. Their decision not to take further action having found nothing relevant in a small portion of the 87,000 documents is, in my judgment, a continuing failure to engage with those obligations.

I bear in mind, nevertheless, that this is a debate over disclosure in the context of this action (i.e. documents relevant to the issues in this action, including the case based on the non-disparagement clause in the Settlement Agreement). If there are documents within the remaining 86,000 un-reviewed documents that fall within the scope of the Settlement Agreement, the likelihood is that there will be relatively few.

Mr Evans-Tovey took me to the large file of correspondence between the parties and their solicitors, in order to demonstrate his overall point that the claimants have acted in an overly aggressive way, and are more concerned with raising ever more questions of the defendants, rather than with the documents that have in fact been provided. There are points within that bundle of correspondence that – to some extent at least – support the defendants’ case in this regard.

One example relates to the offer made by the defendants to hand over their laptops at a very early stage. There is some uncertainty – which neither side sought to explain at the hearing – about the number of laptops or other computers held by the defendants at various points. That aside, however, on 25 January 2022, AL wrote to BS offering to hand over the Malletts’ laptops. The claimants failed to give any response to that offer until 4 August 2022, when they rejected it on the basis that they wanted full compliance with the terms of relief set out in the draft particulars of claim. I have not seen the draft particulars of claim, but I infer that the relief sought reflected at least that sought in the actual particulars of claim. On that basis, as I have noted above, the relief sought went beyond that to which the claimants are entitled.

Mr Campbell submitted that the offer was a hollow one, seen in the light of the fact that when the claimants ultimately sought to take the defendants up on that offer, hurdles were put in place which were never in fact overcome. I am not, however, prepared to conclude either that those hurdles (which related to the need to protect confidential information) were improper, or that they would not have been overcome had the claimants engaged immediately with the offer. It may well be that matters were much harder to resolve later, as the relations deteriorated further. The claimants’ failure to engage at an early stage with the offer is something which I should take into account when assessing the appropriate relief to grant in this case.

A further example relates to Mrs Mallett’s insistence that arrangements should be made to protect meta data in the documents stored on her computer, before she opened those documents. She wished to preserve the proof that the documents had not been opened in many years (which would be lost once they were opened). The claimants ultimately accepted that was a good point, but only after months of objecting.

Not untypically, however, and standing back from the detail, a review of the correspondence shows that while there are some points in favour of the defendants, others favour the claimants. For example, the defendants continued to insist in the correspondence that the initial disclosure had been done on the basis of search terms agreed with BS, and that certain documents were held by CL and for that reason were outside the scope of the Settlement Agreement.

Taking account of all of the above matters, I consider that the claimants are entitled to at least some relief, but not the full relief claimed. While I am satisfied that the defendants have retained more than isolated examples of Confidential Information, and that Mr Mallett has disseminated at least some of the wrongfully retained documents to third parties, I consider the claimants have overreached themselves in some respects (insofar as they claimed, or acted on the basis that, the Settlement Agreement related to information, more broadly than documents, or to documents otherwise than in existence as at the date of the agreement) and failed to engage constructively with the defendants at an early stage.

The fairest outcome, which satisfies the two substantive matters sought by the claimants, while reflecting the points I have made above, is as follows:

I will not, therefore, grant an injunction restraining further breaches of the Settlement Agreement. The deletion of any remaining Confidential Information renders any further breach a remote possibility at best.

Nor will I order delivery up of Confidential Information to the claimants. That goes beyond specific performance of the Settlement Agreement. I accept, as noted above, that there is jurisdiction to make an order for delivery up of any Confidential Information to enable the claimants to protect their confidential information from being further disseminated or used by third parties. I consider, however, that taking into account all the circumstances of the case, it is fair and proportionate to limit the relief under this head to the witness statement from Mr Mallett to which I refer above. I accept that, without delivery up of all the Confidential Information, it will be harder for the claimants to police compliance by Mr Mallett with his obligation to disclose all instances of wrongful dissemination. As against that (in addition to the factors I have referred to above in balancing the nature of the relief to grant), I take into account the following two points.

First, this is at the less serious end of the spectrum of confidential information cases: it is not suggested that Mr Jones or his companies have suffered, or are likely to suffer, any real harm by the wrongful retention or dissemination of Confidential Information, particularly as any documents to which the Settlement Agreement relates are at least six years old, and many will be much older. Moreover, the main instances of dissemination relied on, certainly so far as Mr Proctor is concerned, relate to information which Mr Proctor already had himself.

Second, the dissemination to third parties has been, on Mr Mallett’s admission, to assist them in disputes with Mr Jones and his companies. If any such Confidential Information is ever used, there is a real risk that it could be traced back to Mr Mallett (as the experience in relation to Mr Jones’ dispute with Mr McCarthy shows). If – as the claimants would be entitled to do – the order served on Mr Mallett requiring the production of a witness statement is coupled with a penal notice, then Mr Mallett will be fully aware of the seriousness of failing to comply with his obligation in providing that witness statement.