Titan Wealth Holdings Limited & Ors v Marian Atinuke Okunola (Order of proceedings)

This is a claim for breach of confidence, breach of contract and harassment brought by Titan Wealth Holdings Limited and related Claimants against Marian Okunola, a former employee of theirs. It has been listed for trial starting today with a time estimate of three days. That time estimate allows for consideration of certain post-trial issues in relation to, for example, a potential committal of the Defendant for contempt and an application for a civil restraint order.

On 10th July 2024, the Defendant brought an application to strike out the claim or for summary judgment to be granted in her favour. The arguments she wished to make were set out in summary form at box 10 of her application notice. She also provided a skeleton argument, dated 19th July 2024, that runs to some 30 pages.

On 15th May 2024, Collins Rice J ordered that the strike out / summary judgment application be listed at the outset of the trial. It is therefore regrettable that the Defendant’s skeleton argument for the application was not included in the ten lever arch files of materials that I was sent in advance of the hearing. This was particularly regrettable because it is now apparent to me that this skeleton argument in fact includes the Defendant’s submissions on the merits of the claims. This morning, the Defendant has invited me not only to hear, but also to determine, her strike out / summary judgment application before the trial begins. She quite rightly points out that if her application is granted, there will be no need for a trial.

Having considered her skeleton argument, in my judgment, that is not an appropriate course. Rather, I accede to the Claimants’ submission, which is that I should hear all of the evidence and argument in relation to both the strike out / summary judgment application and the trial before giving judgment on the application and the issues in the trial.

The reasons I have reached that conclusion are as follows.

First, it is clear from box 10 of the application notice that the Defendant herself accepts that her application involves consideration of a significant amount of evidence. She refers to two witness statements and exhibits from herself, two witness statements from Mike Fullalove, who is one of the Claimants’ witnesses, and witness statements from the Third and Fourth Claimants. She contends that I also need to consider the entirety of the documentation in relation to special measures, the responses of the Third and Fourth Claimants during cross-examination at an earlier hearing, and draft questions she has prepared for the Third and Fourth Claimants. She therefore accepts that determination of her strike out summary judgment application is highly fact-sensitive. In my judgment, it would not be consistent with the overriding objective to consider all of this evidence for the purposes of the strike out / summary judgment application and then again for the purposes of trial.

Second, it is apparent to me that the nature of the arguments on the strike out / summary judgment application overlap very closely with those for trial. Simply by way of example, the Defendant puts her strike out / summary judgment application on the basis that the conduct she has engaged in that is said to amount to harassment of the Third and Fourth Claimants does not meet the necessary standard for harassment and can be defended by her showing that the conduct was reasonable, therefore invoking one of the statutory defences to harassment. She also argues that the information she received was not such that it was confidential and that any duty of confidence she owes is to the Second Claimant and not the First. These are all issues in the trial. It is apparent to me these are highly fact-sensitive matters that might in themselves render a strike out or summary judgment inappropriate, but certainly render it inconsistent with the overriding objective to proceed to deal with that application ahead of the trial.

Third, a particular practical problem is that the extensive page references in the Defendant’s skeleton argument have not been updated to match the trial bundles I have. Rather, they refer to previous bundles in relation to special measures and a different strike out application bundle, neither of which I have. This makes it impossible for me to work meaningfully from the Defendant’s skeleton. It also means that some effort is going to be required (and I hope the parties can liaise together to do this) to provide me with a version of the Defendant’s skeleton which contains the correct page references, cross-referring to the current trial bundles.

Fourth, there are a range of preliminary pre-trial issues that need to be resolved before the evidence in the trial can commence. These include whether to grant special measures for the Third and Fourth Claimants, whether or not to admit the fourth witness statement from Mr Fullalove and whether to grant a protective injunction protecting the Claimants’ legal representatives.

In my judgment, those issues are likely to take up the entirety of the first day of this listing. It is therefore unrealistic to expect the strike out / summary judgment application to be determined before the trial, as the three-day listing will otherwise be at risk.

For all of those reasons, I do not propose to hear the strike out / summary judgment application at the outset of the trial. In my judgment, it is preferable to proceed to deal with the pre-trial matters and then for the evidence and arguments on the strike out / summary judgment application to be rolled up with the substantive evidence and arguments at trial, such that I can determine the application and the issues on the trial at the same time.