Spill Bidco Limited & Ors v Bruce William Wishart & Ors

Factual background

Witnesses

Six witnesses were called to give evidence. The Claimants called four witnesses, namely Mr Sean Gough (“Mr Gough”), Ms Susan Fraser (“Ms Fraser”), Mr Romuald Allais (“Mr Allais”) and Ms Claudia Joelle Picon (“Ms Picon”). Mr James McCleary was called to give evidence on behalf of Mr Wishart. Then Mr Wishart gave evidence himself.

Mr Sean Gough is the President and CEO of Delahaye Industries SA (“Delahaye”). He was appointed as such on 2 May 2024. He is also a director of Empteezy Holdings.

Mr Gough gave evidence pertaining to the management of the affairs of the Group from the time of his appointment and the circumstances in which Emtez Spain was placed in administration in December 2024. He gave evidence that the former management team in Emtez Spain subsequently set up a business – Apex Safe Solutions – trading in the same products and with the same customers as companies in the Emtez Group and, based essentially on documentation to which he was not originally a party, he alleged that Mr Wishart was – as he put in his first witness statement – a key investor in in Apex, sourcing products and providing it with additional support and assistance. He also contends that he was led to understand that Mr Wishart assisted the other Defendants, Mr Bulman, KSMB, Loxxer and Roxxal in a competitive business in the UK although, again, his evidence in respect of these matters was not first hand.

Where his evidence was second hand, it was of limited evidential value. However, from the time of his appointment, he obviously had a senior role in the management of the companies, attending board meetings – such as there were – and taking many of critical decisions, some of them unilaterally. This included the decision to place Emtez Spain in administration. His evidence in relation to these aspects provided a valuable insight in relation to the considerations which underpinned the decision-making and the basis on which such decisions were taken.

He was a measured and, at times, defensive witness. However, where his evidence was based on matters of which he had direct first hand knowledge, his evidence was generally reliable. His evidence was also valuable in showing the perceptions with which management decisions were made on behalf of the Claimant group of companies.

Ms Fraser is a chartered accountant, having qualified as such in 2011. She is now managing director of Empteezy and Romold. She joined as Group Financial Controller, in October 2022, shortly before the December 2022 transactions and was only promoted to the office of managing director two years later in October 2024.

She gave evidence pertaining to her role in the companies and the internal management of the companies. She also gave evidence in relation to the diminution of turnover at Romold, her discussions with Ms Geddes and her perceptions of wrongdoing on the part of Ms Geddes and Mr Wishart, including their attendance at the Health and Safety Show at the NEC.

In my judgment, her evidence was of mixed quality. As might be expected, where she gave factual evidence of matters directly within her own knowledge, her evidence was generally reliable. Obviously, this includes matters relating to the internal management of the companies and factual evidence pertaining to her exchanges with third parties. However, where she strayed beyond this to express her opinion or comment on documentation to which she was not a party, her evidence was less valuable. This includes, for example, her commentary about the Health and Safety Show at the NEC in Birmingham which she did not personally attend and her commentary about Mr Wishart’s role in assisting Mr Bulman and Apex in their respective businesses. Much of this was based on matters of which she did not have direct knowledge. No doubt, it was open to her to give evidence about her perceptions at the time so as to explain the way in which these matters were handled by the companies once drawn to her attention. However, at times, her evidence strayed well beyond this.

Where Ms Fraser’s evidence transcends matters of fact within her own personal knowledge, particularly where it involves the expression of her views or opinion, I have assessed her evidence with caution.

Mr Romuald Allais is the General Manager of Delahaye in France. He gave evidence about the range of activities undertaken by the company and the action taken to sell Delahaye’s products in Spain following the administration of Emptez Spain.

There is no evidence to suggest that the administrators of Emptez Spain were approached with a view to the assignment of its assets and goodwill. Nevertheless, Mr Allais openly confirmed that, following the administration, Delahaye gained access to Emtez Spain’s customer data base and email inbox and made contact with some of its customers. He confirmed that Delahaye was able to provide the Spanish customer base with a similar but not identical portfolio of products although it is only able to manufacture steel products. He also confirmed that, since 1 December 2024, Delahaye has enjoyed orders amounting to €185,000 for customers in Spain and €5,000 for customers in Portugal, each of whom were originally customers of Emtez Spain.

I am satisfied that Mr Allais gave an honest and generally reliable account.

Ms Picon’s role as the Global Quality, Health and Safety and Business Transformation Leader for the Emptez Group of companies. She gave evidence about the certification of steel containers in Emptez Spain and her observations on visits to the premises of Emptez Spain in January and September 2024.

She also stated that, when she examined the Apex website, she could see that it listed many large steel products that compete with products manufactured, certified and sold by companies in the Emptez Group. The same is true of containers for hazardous goods storage and storage for lithium batteries.

She was a careful and measured witness. I am satisfied that I can rely on her evidence.

Mr McCleary was formerly a director of Romold and the managing director of Empteezy. He is Mr Wishart’s co-director of Livi. He is also the husband of Ms Geddes, the UK Sales Manager of Romold.

He gave evidence that his role at Empteezy and Romold continued until 30 January 2024 when he was dismissed along with the Manufacturing Manager, Mr Alastair Donaldson. The Company’s managing director at the time, Mr David Byrne, advised him that he was being dismissed because he didn’t fit with the new team and was too close to Mr Wishart. This was not unusual since eight of the senior managers had lost their jobs once Chiltern acquired its 60% shareholding.

Mr McCleary also gave evidence about his subsequent role as a director of Livi, his relationship with Mr Bulman and the user of Livi’s premises for the storage of Loxxer cabinets and his attendance at the NEC Exhibition.

When his evidence was tested, in cross examination, Mr McCleary was a defensive witness. However, I have no reason to doubt that I can rely on the essential elements of his testimony.

Mr Wishart gave evidence about the circumstances in which he came to set up the original business and the evolution of the business or businesses over the full period in which he was essentially in control of the group. He also gave evidence about his business interests more generally and the sequence of events which has given rise to these proceedings following the disposal of most of his shares.

No doubt, he is a stubborn man with his own way of doing things. He is aggrieved by the way in which the Group has been managed, or mismanaged, as he sees it since the 2022 transactions. It would be inappropriate for me to make any determination, in these proceedings, as to the merits of this aspect of his dispute with companies in the Group even if I had the evidence to do so. However, there is no doubt that Mr Wishart has been actuated, at times, by a generosity of spirit and an impulse to help his friends and acquaintances. This partly explains the difficulties in which he is now in.

Mr Wishart was cross examined, rigorously and at length, on the allegations that are now advanced against him in these proceedings. Unfortunately, Mr Wishart did, at times, let himself down by evading the questions put to him, seeking to argue the case or descending into commentary. This seriously impaired the quality of his evidence. I have not discounted his evidence – fundamentally he is not a dishonest man - but I have exercised caution when considering and assessing some aspects of Mr Wishart’s testimony.

In any event, it has been possible for Mr Cohen to rely on the contemporaneous documentary evidence when advancing the Claimants’ case against Mr Wishart, much of which is self explanatory.

The case against Mr Wishart originally included claims based on unlawful means conspiracy to which Ms Geddes, Mr McLeary, Mr Bulman were parties in addition to Mr Wishart himself, KSMB, Loxxer and Roxxal. There was also a claim against Mr Wishart for wrongfully procuring Ms Geddes to commit breaches of her contract of employment with Empteezy. Ms Geddes has never been a party to these proceedings. Mr Bulman, Loxxer, KSMB and Roxxal were parties to the claim for unlawful conspiracy until the claims against them were compromised shortly before trial. However, until the parties’ closing submissions, the Claimants continued to pursue their claims against Mr Wishart for unlawful means conspiracy and wrongfully procuring Ms Geddes to commit breaches of her contract of employment.

During his closing submissions, Mr Cohen advised the court that the Claimants had elected not to pursue these parts of their case on the basis that they add little to the rest of his case. The logic of this, which I accept, is that they are largely founded on allegations which already form part of the contractual claims against Mr Wishart and the claims for breach of duty. However, I would add that, had the economic tort claims been pursued, I am by no means satisfied that the Claimants succeeded in substantiating at trial each of the required factual elements of their claims on this basis. They incorporate specific elements such as the terms of Ms Geddes’ contract of employment and her evolving relationship with her employer which were not canvassed in evidence.

This leaves the Claimants with a series of claims against Mr Wishart only for breaches of contractual obligations and his duties to Spill Topco as a non-executive director.

In recent years, the principles of contractual determination have repeatedly been revisited by courts at the highest level of authority. This includes InvestorsCompensation Scheme v West Bromwich BS [1998] 1 WLR 896, Rainy Sky SA v Kookmin [2011] UKSC 50 and Wood v Capita Insurance Services Limited [2017] AC 1173. However, Lord Neuberger’s guidance, in Arnold v Britton [2015] UKSC 36 at [15], is clear and authoritative.

The SPA and the Investment Agreement provided for the sale and purchase of the entire issued share capital of Spill Bidco and its subsidiaries, including Empteezy Holdings, with post-acquisition arrangements for regulation of the affairs of the holding companies and a series of listed individuals, including Mr Wishart himself. No doubt, they are to be construed together and in conjunction with the Letter of Appointment. Mindful of Mr Wishart’s role in the whole operation, his experience, connections and personal goodwill, the purchasers were obviously astute to the need to tie him in and secure his connections and goodwill for the benefit of the trading companies and the Group as a whole. For this reason, Mr Wishart was appointed as a director of one of the holding companies, Spill Topco, and entered into restrictive covenants to preclude him from competing with the businesses. For the avoidance of doubt, Spill Topco owns the entirety of the issued share capital of Spill Bidco which is itself a holding company for the Group.

Mindful that a substantial part of the consideration was in Loan Notes, Mr Wishart and the provisions for Exit and Refinance in the Investment Agreement over a period of up to 60 calendar months from completion, it was also in Mr Wishart’s interest for the Group to trade successfully. No doubt, he was of retirement age and he was content to take up an appointment with Spill Topco on a non-executive basis only. However, he retained some commercial interests, not least his interest as a shareholder and director of Wishco. In its accounts for the year ending on 30 November 2022, Wishco was shown to have debtors of £2,799,817 and net assets of £2038,171. No trading accounts for the company were admitted in evidence but it appears to have involved a substantial investment property business. Obviously, this was quite distinct from the business of Epteezy and other companies in the group but Mr Wishart would have had every expectation that he could continue to have a pro-active role in the management of his businesses.

With these objectives in mind, the SPA and the Investment Agreement are to be construed consistently Lord Neuberger’s guidance in Arnold v Britton (supra).

On this basis, two issues of construction arise.

The first issue of construction arises specifically in relation to the post-termination restrictions in clause 9.1 of the SPA. This was in the following form.

“The Principal Seller covenants with the Company that he shall not without the prior written consent of the Board directly or indirectly at any time prior to the Covenant Expiry Date engage or be concerned or interested in any business within the Relevant Area which competes with the Business. Nothing in this sub-clause shall prevent the Principal Seller from being or becoming a Minority Holder”.

This clause encompasses seven defined expressions. Among these expressions, “the Principal Seller” is Mr Wishart in his personal capacity. Since he is a party to the SPA in his personal capacity and as a trustee, this does not give rise to ambiguity. However, Empteezy Holdings is denoted as “the Company” and Empteezy Holdings’ board of directors is denoted as “the Board”. This gives rise to ambiguity since Empteezy Holdings is not a party to the SPA.

At trial, no point about this was taken on behalf of Mr Wishart. However, it was not formally conceded.

On balance, I am satisfied that, the reference to “the Company” can be treated as a reference to Spill Bidco. This must be taken to have been the parties’ intention since Mr Wishart was named as the covenantor in his capacity as Principal Seller and, whilst he was separately named as Trustee Seller, Spill Bidco was the only other party to the instrument. The Definitions Clause was not qualified. There was no express provision, for example, that the formal definition of Empteezy Holdings as “the Company” only applied unless the context otherwise required. However, this is the only sensible interpretation. It is not suggested Spill Bidco partly contracted as agent for Empteezy Holdings nor that it holds the benefit of the relevant covenants on trust for Empteezy Holdings.

There remains an ambiguity as to the meaning, in the clause, of “the Board”. On balance, I take the view this is to be construed consistently with the rest of the covenant and thus means the board of Spill Bidco, not Empteezy Holdings. However, this is less straightforward. Had the parties been minded to provide otherwise, there would have been nothing, in principle, to prevent them requiring the written consent of a third party.

The Investment Agreement does not raise comparable or analogous issues of construction. In the Investment Agreement, Spill Topco is itself denoted as the Company. It is, by definition, the covenantee to Mr Wishart’s undertakings, in clause 11.1, having entered into the covenants “for itself and as trustee for each Group Company”. This includes Mr Wishart’s undertakings not to compete with rival businesses or solicit business from previous customers.

The second issue of construction applies to a formula which is deployed in both agreements.

By Clause 9.1 of the SPA, Mr Wishart covenanted not to “engage or be concerned or interested in any business within the Relevant Area which competes with the Business”. “Relevant Area” was defined widely so as to include “the United Kingdom and Europe and such other countries in which any Group Company carries out the Business in the Relevant Period”, itself a defined term. “Business” was defined so as mean “those parts of the business of the Group with which [Mr Wishart] was involved to a material extent in the Relevant Period”.

By Clause 11.1 (c) of the Investment Agreement, Mr Wishart covenanted, with other parties, that they would “…not, directly or indirectly…engage in; or…be concerned or interested in any business carried on in competition with any of the business of the Company or any other Group Company within which they were associated at any time during the period of 18 calendar months prior to the Relevant Date”. In this case, the Relevant Date was defined so as to mean the date on which Mr Wishart cease to be a director or shareholder.

The issue of construction is as to the extent to which these contractual expressions encompass lending. This, in turn, depends on the parameters of the word “concerned” since engagement in a business involves carrying on or transacting the business and being interested in the business generally connotes having a proprietary interest in it. Lending to a business does not involve either of these things.

Once this is appreciated, the critical question is whether a person who lends funds or other assets for application in a business is thereby concerned in the business or is, at least, capable of thereby being concerned as such within the meaning of the covenants when his activities are assessed cumulatively. In my judgment, it is necessary to extend the question in this way because loans and analogous transactions can be achieved on different terms and in a range of different ways which are capable of yielding a different answer. Moreover, the covenantor’s activities are to be assessed as a whole. A covenantor who makes a loan in one payment without otherwise making any contribution to the business is at least potentially to be assessed differently from a covenantor who makes several payments or provides assistance in addition to the loan.

To assist me in considering whether a person who lends funds or other assets for application in a business is thereby concerned in the business, I was referred to a series of authorities, including Bird v Lake (1863) 1 H + M 338, Smith v Hancock [1894] 2 Ch 377, William Corey v Harrison [1906] AC 274, Batts Combe Quarry Limited v Ford [1943] Ch 51, Universal Components Ltd v Vickery (unreported 15 April 2005), Sabmiller Africa BV v Tanzania Breweries Ltd [2009] EWHC 2140 (Comm), and WPS Enterprises Property Ltd v Radford [2009] VSCA 22.

Having reviewed each of these authorities, I am satisfied that the short answer to the question is that a person who lends funds for application in a business is capable of thereby being concerned as such within the meaning of the covenants.

Whilst of some antiquity, William Corey v Harrison (supra) was decided in the House of Lords and is thus of the highest authority. A coal merchant sold one of his businesses and, in doing so, covenanted not “solely or jointly with any other person either directly or indirectly [to] carry on or be concerned or interested in the coal trade in any part of Great Britain or the Isle of Man”. He then sold his other business - an export business - to a company and took the purchase price in shares. This company sold its business to another company which commenced business in competition with the original purchaser. No doubt this was in Great Britain. However, when the purchaser sued the original coal merchant on his covenants, the claim failed on the basis that he was “not concerned or interested in” the competing business.

It appears that, once the initial purchaser of the export business re-sold the business to another company, it was entitled to be paid out of the proceeds of sale of the successor business. This was potentially significant because the original coal merchant remained entitled to shares in the initial purchaser. However, the House of Lords determined that it mattered not. Whilst the coal merchant was to be regarded as a creditor he was not thereby concerned or interested in the business. There is no evidence that he had done anything to involve himself in the business of the final purchaser; he was to be treated as a creditor owing to the rights he had reserved when the business was sold to the original purchaser.

To understand the basis on which the House of Lords reached their conclusion, it is necessary to consider two passages from the short leading opinion of the Earl Halsbury. In the first passage, he observed that “it would be absolutely impossible, I think, to lay down with precision what is or is not comprehended in such words as ‘interested or concerned’. You must look at the facts of the particular case and look at the business meaning of the words”. Having made this observation, he stated later that “when you are dealing with the carrying on of a business and endeavouring to prevent the carrying on of that business directly or indirectly, or the (sic) having any part or concern in that business, I think every business man would quite comprehend that the mere fact of being a creditor of the firm is not being ‘concerned or interest in’ it”.

Contrary to Mr Pay’s submissions, this case is not authority for the proposition that a covenantor who lends funds or other assets for application in a business cannot thereby be concerned in the business. In interpreting the covenants and assessing whether the covenantor has committed a breach, it is necessary to identify the contractual objects of the parties and the conduct of the covenantor. This involves assessing and evaluating the facts as a whole. To be concerned in the business, it is generally not enough for the covenantor to have assumed the status of a creditor. It is necessary to examine the route by which he did so and ask whether the lending was coupled with other activities to support, assist or intervene in the business. Where the covenantor has thereby involved himself in the business, there is every prospect it will be adjudged he has become concerned in the business and thus committed a breach of covenant.

The decision of the House of Lords in William Corey v Harrison (supra) appears not to have been cited to the Court of Appeal in Batts Combe Quarry v Ford (supra). However, the decisions, in each case, are not inconsistent. In Batts Combe Quarry v Ford, the vendors of a quarry covenanted that they would not for a period of ten years “…carry on or assist in carrying on or be engaged concerned or interested or employed in the business of a quarry within 75 miles…” One of the vendors provided money to his son to fund the purchase of a rival quarry together with working capital. He also took part in negotiations on his sons’ behalf for the purchase of machinery and equipment.

At first instance, the judge was persuaded that the father’s only putative breach was providing the funds for his son to set up the business of the rival quarry and focussed narrowly on whether this amounted to assistance in carrying on such a business. Lord Greene allowed an appeal on the basis that, by funding the business, the father had assisted in carrying on the business. The appeal succeeded on this ground alone although it also amounted to a breach for the father to have assisted his son by providing him with equipment for the business.

Quite apart from this, Lord Greene said the case was covered by the restriction prohibiting the vendors from being concerned in the rival business. At 53, he said he could “see no more effective way of being concerned in a business than by providing the capital necessary to establish it, and the word ‘concerned’ seems also to cover the assistance given by the father in the course of the negotiations”.

Lord Green’s analysis in Batts Combe Quarry v Ford (supra) was followed by HHJ Havelock Allen QC in Universal Components Ltd v Vickery (supra). This involved an application for an interim injunction restraining the vendors of shares from lending funds for application in a rival business. The relevant covenant prohibited them from being “concerned or interested, either directly or indirectly, in any business which directly competes with the business” of one of the claimants. The Judge concluded that, since the defendant in William Cory v Harrison (supra) had only become interested as a creditor, “by accident” – as he put it - the case before him was distinguishable. Whether it was necessary for him to distinguish William Cory in this way is a moot point. In William Cory, Lord Halsbury was astute to observe that each covenant was to be construed according to its factual context. He also considered that the issue boiled down to whether the status of a person as a creditor sufficed to make him concerned or interested in the business. The answer to this was that it did not; it remained necessary to ask how he became a creditor and examine his conduct more generally.

For a different perspective, Mr Pay relied on Bird v Lake (supra), Smith v Hancock (supra), Sabmiller Africa BV v Tanzania Breweries Ltd (supra) and WPS Enterprises Property Ltd v Radford (supra). However, in my judgment, none of these cases afford him significant support.

In Bird v Lake (supra), the covenantor covenanted “not to carry on or be engaged in the trade or business of an eating house keeper or any matter or thing whatsoever in anywise relating thereto…”. The Vice-Chancellor concluded that there was nothing in the covenant to prevent the covenantor from lending money to a borrower who intended to carry on such a business. However, the covenant did not prohibit the covenantor from being concerned in such a business and no guidance was provided as to the ambit of such a prohibition.

Again, in Smith v Hancock (supra), the relevant covenant did not prohibit the covenantor from being concerned in a business. It provided that the vendor of a business would not “carry on or otherwise be interested in a business”. Following the disposal of the business, he assisted his wife in setting up a rival shop. He also induced a bank to give his wife’s nephew credit in connection with the business. However, he did not carry on the business himself nor did he have an interest in the business himself. On this basis, the Court of Appeal were satisfied that there had been no breach of covenant. It was unnecessary for them to provide guidance on a wider covenant, such as the one in the present case, and they didn’t do so.

Sambiller Africa BV v Tanzania Breweries Ltd (supra) involved an application for interim injunctive relief following the sale of shares in a brewery and an agreement governing the sale and distribution of beer. One of the parties, East African Breweries - denoted as EABL - had undertaken not to be interested or engaged in a company “which directly or indirectly carries on the business of brewing and/or handling and/or importing any Specified Beverages…”. Christopher Clarke J made an interim order restraining EABL from implementing agreements providing for the secured advance of funds in connection with such a business on the basis – he said – that “the greater risk of potentially irremediable injustice lies in refusing relief”.

This judgment obviously commands respect but it was only made on an interim application guided by American Cyanamid principles. At [130], the judge referred to Smith v Hancock (supra), Bird v Lake (supra) and Cory v Harrison (supra). Having done so, he surmised that, since it was envisaged EABL would only be a creditor with a right of recovery not dependant on profit, there were difficulties regarding this aspect as a breach. Injunctive relief was then awarded by a different route.

However, the covenants in the Sambiller case were materially different from the covenants in the present case. They did not prohibit EABL from being concerned in the rival business rather than simply carrying on the business or handling or importing specific products. Moreover, the judge’s analysis on this aspect was obiter. It was not essential to his conclusion.

Finally, I was referred to WPS Enterprises Property Limited v Radford [2009] VSCA 22, a judgment of the Court of Appeal of the Supreme Court of Victoria. In this case, the relevant restrictions were again imposed on the sale of a business. The covenantors covenanted not to “…be employed, carry on or be financially or otherwise engaged in any undertaking which in any capacity whatsoever carried on a business which is competitive with the business”.

Carrying on or being financially or otherwise engaged in an activity itself carried an extended definition. Somewhat confusingly, the words “concerned with” did not appear in the covenant itself but the interpretation clause treated the covenant as if it had contained such words. No doubt, this was down to an error of drafting perhaps following inconsistent amendments to a standard precedent. However, counsel conceded that the words “concerned with” in the interpretation clause did not have the effect of extending the restrictive covenant itself. On this basis, it formed no part of the restriction that the covenantors would not be concerned in a rival business.

At first instance, the trial judge concluded that letting business premises and advancing funds, by way of loan, to a rival business did not amount to a breach of covenant. The Court of Appeal dismissed the covenantee’s appeal. In doing so, Justice John Robson took the opportunity, in a scholarly analysis, to review Bird v Lake, Smith v Hancock, William Corty v Harrison and Batts Combe Quarry v Ford together with a series of other authorities including a judgment of the full court of the Supreme Court of Victoria and a judgment of the Federal Court of Australia in which the judgment of the Court of Appeal in Batts Combe Quarry was distinguished. Having done so, he concluded, at [74(3)], that “the mere loaning of money or leasing of premises will usually not by itself constitute being interested in a business, but the relationship of landlord and tenant and lender and borrower does not necessarily preclude the landlord or lender having an interest. The terms of a lease or the terms of a loan may be such as to constitute the landlord or lender having an interest in a business”.

However, the critical point of distinction with the present case is again as to the ambit of the prohibition. Unlike the present case, the covenants in WPS only prohibited the covenantors from being employed, carrying on or engaged in the competing business. They did not prohibit them from being concerned in the business. This is, of course, the critical distinction with Batts Combe Quarry.

In his submissions for the Claimants, Mr Cohen submitted that the doctrine does not apply to the relevant covenants once the judgments of the Supreme Court in Penninsula Securities v Dunnes Stores (Bangor) Ltd [2021] AC 1014 are applied.

As the law currently is, I am not persuaded Mr Cohen is correct. I shall explain why.

The doctrine itself is historically well established. In certain contracts, covenants in restraint of trade are prima facie unenforceable at common law and only enforceable only if they are reasonable with reference to the interests of the parties concerned and of the public. This is how it is described in Chittyon the Law ofContracts (35^th edn) Para 19-203 in a passage adopted by Carr LJ (as she was) in Quantum Acturial LLP v Quantum Advisory Ltd [2022] 1 AER (Comm) 473.

As Carr LJ observed elsewhere, at [60(i)] of her judgment in the same case, “the doctrine is not confined to immutable boundaries or rigid categorisation but there are certain categories of covenants to which the doctrine traditionally applies, in particular those by which an employee undertakes not to compete with his employer after leaving the employer’s service and those by which a trader who has sold his business agrees not thereafter to compete with the purchaser of the business”. This is, of course, the territory of the covenants in the present case.

The origins of the covenants in Penninsula (supra) were rather different. They were imposed in the lease of a substantial area of land for the anchor tenant of a retail development and included a restriction on the use of the neighbouring land retained by the landlord. The issue was as to the enforceability of this restriction.

The Supreme Court determined that, as historically understood, the doctrine did not apply to such a contract. In so doing, they declared that they were departing from the judgments of the majority of the House of Lords in Esso Petroleum Co Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269and adjudged that a covenant relating to the use of land was not subject to the doctrine against restraint of trade. They determined that the so-called “freedom” Test, favoured by the majority in Esso, should not be applied, rather they were content to be guided by the test suggested in the same case by Lord Wilberforce, the so-called “trading society” Test. This involves asking whether the covenants are of such a nature that they are part of “the accepted machinery” for this type of contract so that, as Lord Wilberforce himself put it, “instead of being regarded as restrictive they are accepted as part of the structure of a trading society”, ie that they accorded with standard accepted commercial practice at the time and on this basis are not considered to be unreasonable or contrary to public policy. Such covenants are enforceable if they are fairly and properly ancillary to the transaction.

If this were the test applicable for the restraints in the present case, no doubt it would be satisfied. Such restraints are commonly imposed in contracts of this kind where a vendor disposes of a business in respect of which he played an integral role and can be taken to have enjoyed significant personal goodwill.

However, unlike the Penninsula case, the Claimants in the present case are not seeking to enforce the covenants of a transaction relating to land. It involves a transaction for the disposal of a business through the sale of shares in a company. No doubt, the company’s assets included land but the covenants were not imposed, as in Penninsula, for the purpose of protecting its interest in neighbouring land nor were they imposed, as in Esso v Harpers Garage, with a view to creating a solus tie. It may be that, in due course, the so-called trading society test will be applied more generally so as to extend to case such as the present but I was not referred to a case in which this has yet been done. If it is to be done, I would anticipate this should be left to a court of higher authority.

Mr Cohen submitted that the Quantum Actuarial case can be regarded as such a case but I am not persuaded this is so. Quantum Actuarial involved a bespoke arrangement for the provision of services by a new entity for the benefit of established companies, denoted as the legacy companies. Unlike the present case, the transaction was not for the disposal of shares. Moreover, in setting out her understanding of the principles, at [60(i)], Carr LJ specifically observed that the disposal of a business – as in the present case - remains one of the categories of case to which the restraint of trade doctrine applies.

Having reached this conclusion, the next question is whether it has been demonstrated, in the present case, that the restraints are reasonable. To assist the courts in answering this question, Carr LJ provided the following guidance, at [65] of her judgment in Quantum Actuarial (supra).

“Beyond this, and again drawing the relevant threads together by way of summary:

i)

The onus of establishing that a covenant is no more than is reasonable in the interests of the parties is on the person who seeks to rely on it (see in particular Attwood v Lamont [1920] 3 KB 571 (at 587-588 per Younger LJ). If he/she establishes that it is no more than reasonable in the interests of the parties, the onus of proving that it is contrary to the public interest lies on the party attacking it (see in particular Saxelby (at 716 per Lord Shaw));

ii)

The time for considering reasonableness is again the time of the making of the contract (see in particular Gledhow Autoparts Ltd v Delaney [1965] 1 WLR 1366 (at 1377 per Diplock LJ) ; Shell v Lostock Garage Ltd [1976] 1 WLR 1187 (at 1197-1198 per Lord Denning MR) and Schroeder (at 1309H per Lord Reid));

iii)

It is no answer on the question of reasonableness to say that there have been substantial financial rewards on all sides. The question of reasonableness has to be considered by reference to the terms of the contract (see in particular PSM (at [104] per Arden LJ));

v)

For a restraint to be reasonable between the parties it must be no more than what was reasonably required by the party in whose favour it was imposed to protect his legitimate interests (see in particular Saxelby (at 701 per Lord Atkinson) and Schroeder (at 1310B per Lord Reid and 1315H per Lord Diplock));

v)

The court is entitled to consider whether or not a covenant of a narrower nature would have sufficed for the covenantee's protection (see in particular Office Angels Ltd v Rainer Thomas and O'Connor [1991] IRLR 214 (at 220 per Sir Christopher Slade));

vi)

What is reasonable may alter with the changing nature of commerce and society (see in particular Nordenfelt (at 547 per Lord Herschell));

vii)

Factors to be considered when assessing reasonableness between the parties include the character of the business (see in particular Nordenfelt (at 550 per Lord Herschell)) and also:

a)

The relevance of the consideration for the restraint;

b)

Inequality of bargaining power;

c)

Standard forms of contract;

d)

Whether the restraints operate during or post-contract;

e)

The surrounding circumstances, including the factual and contractual background;

(see in particular Panayiotou (at 329-336 per Jonathan Parker J));

viii)

The duration of an agreement in restraint of trade is a factor of great importance in determining whether the restrictions in an agreement can be justified (see in particular Schroeder (at 1312F-G per Lord Reid));

ix)

The level of compensation may be relevant to the question of reasonableness (see Esso (at 300B-C per Lord Reid) and Panayiotou (at 329-330 per Jonathan Parker J));

x)

The motives of the party challenging the contract are immaterial to the question of whether the terms of the contract are reasonable as between the parties (see in particular Schroeder (at 1309H per Lord Reid) and Panayiotou (at 336 per Jonathan Parker J)).”

Applying this guidance, I am satisfied that it was reasonable, in principle, for the restraints to be imposed and they were and are reasonable in concept, form and extent. I have reached this bearing in mind that the covenantees to the SPA and the Investment Agreement seeking to enforce the restraints are different holding companies. Spill Bidco was covenantee to the SPA and Spill Topco was one of the covenantees to the Investment Agreement. Spill Topco holds the entirety of the share capital of Spill Bidco under arrangements that were fully envisaged at the time the parties entered into the 2022 agreements.

I have reached this conclusion for the following reasons.

Firstly, it is by no means uncommon in a set of transactions of this kind for restrictions of this nature to be imposed given the nature and extent of Mr Wishart’s role in the businesses.

Secondly, the consideration for the transactions – in particular the SPA - was, on any analysis, substantial and, given that Mr Wishart was integral to the whole business and no doubt enjoyed significant personal good will with customers and staff alike, it was reasonable for the Claimants to seek to tie him into the business and prevent him exploiting his connections for the benefit of others. This is not, of course, a free-standing consideration but, in the context of the transactions as a whole and the whole structure of the post termination provisions, it is obviously significant.

Consistently with this, Mr Wishart was willing to take office as a non-executive director of Spill Topco. It was reasonable for the Claimants to seek to impose restrictions during the currency of his appointment and afterwards.

Thirdly, both sets of parties instructed solicitors in connection with the transaction. There is no evidence of a significant inequality of bargaining power.

Fourthly, bearing in mind the countries in respect of which the Group had a presence at the time of the transactions and the specialist nature of the markets and products, the covenants were not and are not unreasonable in their geographical reach given the limitations on the restrictions as a whole.

In the SPA, the Relevant Area was defined so as to encompass the UK and Europe and such other countries in which any Group Company carried out the Business. However, “Business” was then defined so as to mean those parts of the business of the Group within which Mr Wishart had himself been involved in the Relevant Period, ie the 12 month period prior to the agreement itself.

In the Investment Agreement, the Restricted Area was defined so as to mean within the territories of England, Scotland, Wales, Northern Ireland, the Channel Islands, the Isle of Man, France, Germany, Spain, Italy, Belgium and any other territory that the Target Group operated in. Again, it was limited to areas within which Mr Wishart is associated for a period of 18 months up to the date on which he ceases to be a director or shareholder.

Fifthly, the defined periods of the restrictions were not unreasonable. In the case of the SPA, the restriction is timed to continue until the Covenant Expiry Date, on the third anniversary of the Completion Date, as it happens 14 December 2025, ie in less than three months’ time.

In the Investment Agreement, it is timed longer so as to continue for 24 months from the future date on which Mr Wishart ceases as a director or shareholder. Obviously, this was and is scheduled to continue for longer given that Mr Wishart had every expectation that he would remain as a director for up to three years. It is also notable that once Mr Wishart’s office was limited to that of a non-executive director of one of the holding companies, it could be envisaged that Mr Wishart’s day to day connection with the business and its customers would diminish over time. However, in the overall context, I am not persuaded that this was unreasonable or disproportionate.

Since Spill Topco is a company registered in Jersey, Article 74(1)(a) of the Companies (Jersey) Law 1991 applies. This specifically provides as follows:

“(1)     A director, in exercising the director’s powers and discharging the director’s duties, shall –

(a)     act honestly and in good faith with a view to the best interests of the company; and

(b)     exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

As a director of the company, Mr Wishart owes it a duty to act in good faith in its best interests. Consistently with his duty of loyalty, he owes the company a duty to avoid putting himself in a position where there is a conflict between his personal interests and his duty to the company.

The duties of a fiduciary were described in the following well known passage from the judgment of Millet LJ in Bristol and West Building Society v Mothew [1998] Ch 1 at 18, on which Mr Cohen specifically relied in his submissions.

“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal.”

Having considered Mr Wishart’s contractual obligations and his duties as a director, I shall now turn to the issue of whether he is in breach. I shall do so bearing in mind that he is not alleged to have set up or carried on his own business in competition with the Group companies nor is it alleged that he was engaged as an employee in such a business. The case against him is more subtle. The Claimants’ grievance is that he has provided assistance and support to third parties contrary to the interests of the Group companies and this amounts to a breach of his obligations and duties to the company.

In the case of some of the allegations, Mr Wishart does not dispute the underlying facts but maintains, not without reason, that to large extent he was actuated by a sense of sympathy or generosity of spirit rather than to enrich himself. This is part of the overall context. However, in considering whether he is in breach, I must apply the law according to objective standards. It is conceivable that, subject to this judgement, Mr Wishart will seek to be relieved from liability under the provisions of Article 212 of the Companies Jersey Law 1991 or section 1157 of the Companies At 2006. However, the parties are in agreement that, if this becomes an issue, it should be resolved at a future hearing.

Conversely, the Claimants must be held to their pleaded case. For the most part, heir factual allegations are set out in Paragraphs 7 and 8 of the Particulars of Claim since they no longer pursue their claims for unlawful means conspiracy and wrongful procurement of breach. Whilst they would not ordinarily be entitled to rely on their Reply to furnish themselves with an additional cause of action, Mr Wishart accepts that the Claimants are entitled to advance their case on this basis by relying on the facts alleged in Paragraphs 5.1(a) - (f) of the Reply. This arises from a concession first made in pre-trial correspondence on his behalf.

I shall deal first with the allegations against Mr Wishart in relation to his support for Ms Sandor and Mr Serrano before and after Emptez Spain was placed in administration.

In substance, there are four allegations in this part of the Claimants’ case, namely that (1) he has advanced funds that were applied for the benefit of Apex in the knowledge they would be deployed for its rival business (Para 8.3 of Re-Am P Cl) (“Allegation One”); (2) he advanced funds to Ms Sandor to fund litigation against Emptez Spain (Para 8.4A)(“Allegation Two”); (3) he provided Apex with support and assistance in sourcing their products (Para 8.4) (“Allegation Three”); and (4) he failed to draw the attention of Group companies to business opportunities (Para 8.5(d)) (“Allegation Four”).

On balance, I am persuaded that each of these allegations has been established.

I am also persuaded that, by advancing funds for the benefit of Apex and providing it with assistance in sourcing products, Mr Wishart has committed a breach of clause 9.1 of the SPA and clause 11.1(c) of the Investment Agreement. This is because, in doing so, he has caused or allowed himself to become “concerned” in the business within the meaning of each such clause. For the avoidance of doubt, he has plainly done so within the Relevant Area, as defined, in the SPA and his activities relate to a business which, albeit to a limited extent only, competes with the business of Group Companies within the meaning of the Investment Agreement.

To this extent only, ie by advancing funds for the benefit of Apex and providing it with assistance in sourcing products, the contractual claims of Spill Bidco and Spill Topco under Allegations One and Three have been substantiated. Allegations Two and Four do not amount to a breach of these provisions since, whilst factually correct, Mr Wishart did not thereby concern himself in a rival business within the meaning of those provisions.

Conversely, I am satisfied Allegations One to Four each amount to a breach of Mr Wishart’s fiduciary duties to Spill Topco. Mr Wishart was only a non-executive director and Spill Topco is no more than a holding company. However, as a non-executive director, he had the same core duties to the company as he would have had as an executive director, including his duties of good faith and loyalty to the company. As a holding company, Spill Topco’s only asset was its shareholding in companies within the group. Its interests were thus aligned with its subsidiaries, including the trading companies.

Contrary to the Claimant’s primary case, I am satisfied that the advances for the benefit of Apex were personal loans to Mr Serrano and Ms Sandor, not Apex itself, but they were made on the understanding that they would be applied for the benefit of Apex. Indeed, some of the payments were made into a bank account held in the name of Apex itself. In any event, it is plain, indeed undisputed, that Mr Wishart was aware at least some of the payments would be applied for the benefit of Apex. This includes the sum of €150,000 transferred, in instalments, in January and February 2025. Notwithstanding Mr Wishart’s evidence, it includes the rent deposit. Subject to any payment made in support of the litigation with Emptez Spain and Empteezy, it does not include the payments made to Ms Sandor for her personal support and maintenance. However, the essential factual elements of Allegation One were established at trial.

Allegation Two is admitted at least in respect of Emptez Spain. In Paragraph 50A.1 of his Defence, Mr Wishart admits that “on 9 Spain 2024, [he] lent €15,000 to [Ms] Sandor” stating that “he intended that part of those monies would be used by her for legal services in connection with actions which Sean Gough had caused Emptez Spain to take against her, culminating in her dismissal as an employee of Emptez Spain”. Of course, Emptez Spain has gone into administration. When it did so, any rights that it may have had against Ms Sandor, including any claim against her, expectant or otherwise, for its costs are no doubt enforceable by the company’s administrators, not the Claimants in these proceedings. This may have a substantial bearing on the quantum of any claim Spill Topco may have against Mr Wishart. However, Spill Topco’s claim against Mr Wishart for breach of fiduciary duty is logically separate from Emptez Spain’s rights against him, if any. It stands alone.

Allegation Three was also established at trial. The evidential basis for this can be seen from the contemporaneous documentation. In any event, following the cross examination of Mr Wishart, I am satisfied he did provide Apex with a measure of support and assistance in sourcing their products. This includes providing Ms Sandor with contact details for the Indian supplier, Samridhi, and providing Ms Sandor and Mr Serrano with contact details for Magic Film, a Taiwanese supplier of absorbents. In an email timed at 20:01 on 26 March 2025, Mr Wishart sought to give Mr Sawalka, of Samridhi, the false impression that Apex was one of Emptez’s sister companies. In cross examination, he accepted that this was to accord a measure of credibility to Apex in setting out to do business with Samridhi.

Following Mr Wishart’s cross examination, Allegation Four was also established. It is doubtful whether the business opportunities identified in Para 8.5(d) of the Re-Amended Particulars of Claim would ultimately have led anywhere if they had been referred to companies within the Emptez Group. Indeed, it is unclear whether Apex was itself able to take meaningful advantage of such opportunities. However, it is apparent that, whilst aware Mr Serrano was in contact with companies or organisations such as SEAT, VW and Amazon with respect to such business opportunities, Mr Wishart chose not to advise Spill Topco or its subsidiaries.

It is by no means clear that Apex has traded on a substantial scale nor, if it has done so, this has caused significant damage to any companies within the Emptez Group. It is also true that, to an extent, the claims against Mr Wishart based on Allegations One to Four are of a limited and technical nature. However, the causes of action have been successfully established.

I shall now turn to the claims based on competitive activity in the UK. These claims are more speculative and less focused than the claims based on Mr Wishart’s support for Ms Sandor and Mr Serrano and their Spanish business. They are loosely based on allegations about his conduct in connection with a business set up by his business acquaintance, Mr Matthew Bulman, in competition with Empteezy.

Having distilled the allegations from extended passages in the Re-Amended Particulars of Claim and Reply, they appear to be as follows. (1) Mr Wishart has provided a “logistics and order fulfilment function for products which compete with those sold by Emptez and hence is engaged in competitive activity with Emtez” (Re-Am PCl Para 7.2(a) (“Allegation Five”); (2) Mr Wishart failed to report Ms Geddes’s attendance at a health and safety exhibition at the National Exhibition Centre in Birmingham (Re-Am PCl 7.2(b)) (“Allegation Six”); (3) Mr Wishart instructed Ms Geddes to provide Mr Bulman with the identity of Empeezys’ suppliers and customers (Re-Am P Cl Para 7.3(c) (“Allegation Seven”); (4) Mr Wishart sent emails to Mr Bulman with details of an Indian and Hong Kong supplier of absorbents (Re-Am PCl Para 7.2(g)) (“Allegation Eight”); (5) On 24 April 2025, Mr Wishart hosted Mr Bulman, Ms Geddes and Mr McCleary at the British Business Awards (Re-Am PCl Para 7.2(h)(“AllegationNine”); (6) More generally, in August 2024 and January-February 2025, Mr Bulman asked Mr Wishart for advice and Mr Wishart gave him advice in relation to matters pertaining to his rival business (Reply Paras 5.1(a)-(f) (“Allegation Ten”).

It is undisputed that Mr Bulman is indeed a friend and long-standing business acquaintance of Mr Wishart with a range of business interests. At trial, it was also established that his business interests have recently expanded so as to compete with some of the business activities of Empteezy and he has at times sought and obtained assistance and advice from Mr Wishart in connection with such business activities.

With this in mind, I am persuaded that the factual elements of Allegations Eight and Ten have been substantiated. They are based on exchanges of emails from which it can be seen Mr Wishart provided Mr Bulman with information and advice in relation to matters such as the pricing of absorbents which will have assisted Mr Bulman in the pursuit of the competing aspects of his business and done so to the potential disadvantage of Empteezy.

By a narrow margin, I am also satisfied that Mr Wishart has thus committed a breach of clause 9.1 of the SPA and clause 11.1(c) of the Investment Agreement and breaches of his duty of loyalty to the Spill Topco. By providing such assistance and advice, Mr Wishart did enough to concern himself in a business in competition with Empteezy. He also crossed the line in respect of his core duty of loyalty. Viewed cumulatively this was more than de minimis.

However, I am not persuaded the Claimants have established a cause of action against Mr Wishart based on the remaining allegations.

Livi is in the business or providing storage facilities. Mr Wishart is a director of Livi. In the course of business, Mr Bulman has been permitted to store stock at Livi’s business premises. This includes stock for his competing business. No doubt, Mr Wishart is aware that this is so. More likely than not, he was content for Mr Bulman to store the stock at Livi’s premises. If Mr Wishart was not directly concerned in the arrangements, he can be taken to have authorised them in his capacity as director. It is also conceivable, as Mr Cohen suggests, that Mr Bulman was offered favourable terms in return for services that he has himself provided for the benefit of Mr Wishart or his companies. However, I am not persuaded that, by authorising Livi to enter into such a transaction, Mr Wishart thus became concerned in the competing business nor that he thereby committed a breach of fiduciary duty to Spill Topco. Had Mr Wishart declined to authorise the arrangements, Mr Bulman would no doubt have made arrangements to store his stock elsewhere. Allegation Five does not furnish the Claimants with a successful case.

Allegation Six also fails. Whilst there is photographic evidence showing that Ms Geddes attended the health and safety exhibition at the National Exhibition Centre in Birmingham and at one point visited Mr Bulman’s stand, there is no convincing evidence that she thereby committed a breach of her employment contract with Empteezy or, on the hypothesis she was in breach of her employment contract, that Mr Wishart was aware she had committed a breach and was thus under a duty to report her to her employer.

Allegation Seven is to the effect that Mr Wishart instructed Ms Geddes to provide Mr Bulman with the identity of Empeezys’ suppliers and customers. Mr Geddes was the director of one of Empeezy’s holding companies. However, this did not confer authority on him to give instructions to the employees of its subsidiaries. In any event, on the hypothesis Ms Geddes did provide Mr Bulman with the information alleged, there is no convincing evidence Mr Wishart had authority to instruct Ms Geddes to provide Mr Bulman with such information nor that Mr Wishart purported to give her such instructions. It is pleaded, in the alternative, that Ms Geddes provided the relevant information to Mr Bulman with Mr Wishart’s “express or at least tacit consent”. However, it is unclear on what basis his consent would have been sought or required. In any event, there is no substantial evidential foundation for this allegation.

Allegation Nine is that, on 24 April 2025, Mr Wishart hosted Mr Bulman, Ms Geddes and Mr McCleary at the British Business Awards. However, the conceptual basis for this allegation and how it amounted to a breach of Mr Wishart’s contractual obligations and duties to Spill Tripco is obscure and the supporting evidence unconvincing. This allegation was not properly established at trial.

Although no such case is generally pleaded in the Re-Amended Particulars of Claim in respect of Mr Wishart’s breaches of fiduciary duty, I am invited to determine that they involved acts of dishonesty. I am not persuaded there is a sound evidential basis for me to do so.

Following Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, the legal test for dishonesty is no longer a two-part process. It is necessary to ask only whether a party was acting dishonestly by the standards of ordinary and decent people.

No doubt, in the present case, Mr Wishart was actuated by a sense of grievance and a perception that people close to him had been shabbily dealt with by the new management. He plainly considers that the companies have been mismanaged. Whether there is room for these perceptions is not a matter on which I can reasonably make any assessment in these proceedings and, in any event, it would not preclude him from acting dishonestly. Nevertheless, Mr Wishart’s motivation is part of the overall context. He did not act out of an obvious sense of self-interest. There is also no evidence he personally set out to misappropriate assets.

In his email dated 26 March 2025, Mr Wishart referred to Apex as a “sister” company of Emptez, in order – as he put it – to add to Apex’s credibility. When doing so, he was, of course, fully aware that Apex was not a sister company of Emptez and that he was thus creating a misleading impression. This was, as he now accepts, wholly inappropriate. In this respect, his conduct was dishonest. However, it has not been shown to form part of a pattern of dishonest conduct. I am not persuaded Mr Wishart’s conduct as a whole has generally been shown to be dishonest. Nor am I persuaded that, where he has committed breaches of fiduciary duty, these could generally be characterised as dishonest.

I shall make one final observation. In providing Mr Bulman and Apex with his support and assistance so as to commit breaches of his duties as a director, he has – to an extent – utilised information which he ought to have provided to the Company or sought to apply for its benefit. He has thus misused such information and at least potentially done so to the disadvantage of Spill Topco and its group of companies. In itself, this amounts to a breach of his duties as a director.

To the extent he has thus allowed himself to be concerned in the rival businesses, he has also committed breaches of the SPA and the Investment Agreement.

However, it has not otherwise been demonstrated that Spill Topco or, indeed, anyone else has a free-standing cause of action against Mr Wishart for misuse of confidential information. Had it not been for his appointment as a director and his contractual obligations in clause 9 and 11 of the SPA and the Investment Agreement, Mr Wishart would have been entitled to make such use, as he thought fit, of his own knowledge and experience honestly acquired during the course of his career as a director and employee of Group companies. It has not been demonstrated that he has misused information in the nature of or analogous to a trade secret so as to found a logically separate cause of action.

HHJ Cawson’s order dated 28 May 2025 provided, in terms, for the determination of liability and the claim for non-pecuniary relief to be disposed of as preliminary issues. On this basis, I shall give judgment for Spill Bidco and Spill Topco on their claims against Mr Wishart under the SPA and the Investment Agreement. I shall also give judgment for Spill Topco on its claims for breach of his duties as a director. However, in each case, this is only to the extent provided in this judgment. Parts of the original claim are no longer pursued and Mr Wishart has partially succeeded on his defence of some of the disputed allegations.

It was agreed, during closing submissions, that the issue as to Mr Wishart’s rights to relief under Article 212 of the Jersey Companies Law 1991 would be disposed of following judgment and I would hear further submissions later in relation to the issue of whether I should formally award an injunction and, if so, the precise terms of the injunction.