Vanden Recycling Ltd v Bevin Tumulty Bolton Brothers Ltd & Anor

In this “employee competition” litigation the Third Defendant has applied for the Claim against it to be struck out, as an abuse of the court’s process or as otherwise likely to obstruct the just disposal of the proceedings; or alternatively for summary judgment to be entered in its favour, on the basis that the Claimant has no real prospect of succeeding in the claim against the Third Defendant. If that application fails there is a further application before the court for an order that the Claimant gives security for the Third Defendant’s costs. Both applications are resisted.

At a hearing before Master Gidden on 5 November last, the Third Defendant’s applications were released to be heard by this court on 26 November (with a one day time estimate). The Master also directed that his provisional trial directions (for a ten day trial fixed for June 2016), case management and costs budgeting were all to be considered and dealt with at this hearing if the strike-out application failed.

In the event the strike out/summary judgment application, which raises issues relating to joint liability and compromise, took up the whole of the court day. Judgment was reserved and the parties agreed to consider the best way forward depending on the outcome of that application.

The Claimant (Vanden) is an operating subsidiary of Vanden Global Ltd (VGL) based in Hong Kong. VGL is the holding company of a group of companies involved in plastic waste management, specialising in buying industrial and commercial plastic waste and selling it on to third party customers for a profit. The waste is sold either to companies that recycle the waste, or to companies that add value to the waste through a cleansing process, before selling it on for recycling at a higher price. Vanden is one of the largest brokers of plastic waste products operating in the United Kingdom.

As from 7 October 2013 the First Defendant, Bevin Tumulty, was employed by Vanden as a Business Development Officer. Her duties included the development of their European customer base, sourcing and developing purchaser relationships in Holland, Belgium, Germany and northern France, and establishing or maintaining supplier relationships in eastern England and Ireland.

The Second Defendant, Bolton Brothers Ltd (Bolton) is a waste management company based in Ipswich, which collects and disposes of both recyclable and non-recyclable waste, including plastic waste. Vanden had, on occasion, purchased plastic recyclable waste from Bolton.

The Third Defendant, Kras Recycling BV (Kras), is a Netherlands company which conducts a range of waste management services, including the purchase, cleaning and onward sale of plastic waste.

Before joining Vanden Ms Tumulty had been employed by Leinster Environmentals, a recycling business based in Ireland, where one of her key customer relationships was with Kras, one of the largest processors of plastic waste in the regions she was going to be targeting for Vanden.

Vanden and Kras then established a commercial relationship of mutual benefit, Vanden both purchasing plastic waste from Kras and selling it on to them. On 13 December 2013, VGL entered into a non-disclosure and non-competition agreement with Kras, the benefit of which applied to any of VGL’s subsidiaries and the aim of which was the protection of Vanden’s confidential information.

The circumstances surrounding the unlawful activity alleged against all three Defendants, during late 2014 and 2015, appear from the detailed second statement of Damien Van Leuven, a director of Vanden and VGL, dated 6 July 2015. It is clear from the detailed statements of Henk Kras, Commercial Manager, in response, that there is extensive factual dispute between these parties and that, so far as Kras is concerned, liability is very much in dispute. However, for the purposes of determining the application to strike out or for summary judgment, it is sufficient to record the following.

In mid March 2015 it was agreed that Ms Tumulty would in future focus solely on the purchase of plastic waste, rather than on its sale. However, on 8 April 2015, shortly after this agreed change of role, she gave notice of her resignation. Vanden became suspicious of the reasons for and timing of her resignation, which appeared to be designed to cause maximum disruption to their business, and were suspicious in addition of her conduct over the previous six months. They instructed FTI Consulting LLP, a specialist computer forensic company, to carry out an investigation and analysis of her work laptop and mobile phone.

Mr Van Leuven states that FTI’s findings produced significant evidence of unlawful conduct, in that Ms Tumulty was providing confidential and commercially sensitive information to both Bolton and Kras, and that the three Defendants had all conspired to divert business away from Vanden and to set up Ms Tumulty in some sort of business arrangement to compete with Vanden.

Ms Tumulty was immediately placed on garden leave and her employment eventually terminated on 8 July 2015. Letters before action were sent to all the Defendants seeking immediate undertakings. The detailed letter before action to Kras was dated 8 May, with a deadline set of 13 May for undertakings to be given. A chaser letter was sent on 11 May, no response having been received. Complaint is made by Vanden as to the failure by Kras to offer any undertakings and respond to or engage with the allegations, and as to the adoption of what they regard as deliberately delaying tactics. A firm of Dutch advocates, Diepen van der Kroef, wrote to Vanden’s solicitors, Dentons, on 13 May indicating that they were acting for Kras, that they needed time to consider the allegations and that they would respond “in the middle of next week.” On Dentons seeking confirmation that Diepen had instructions to accept service of proceedings, Diepen replied in the negative.

Unwilling to wait any longer for a response from Kras, Vanden initially applied on notice, dated 18 May, for urgent interim relief only against Ms Tumulty and Bolton. They commenced their claim against all three Defendants by way of Claim Form dated 18 May with Particulars of Claim dated 19 May 2015. Vanden arranged service on Kras pursuant to Article 14 of the EC Service Regulation (Council Regulation 1393/2007) and there was a delay before service was eventually effected on that Defendant on 4 June.

The Claim was limited to £100,000. In relation to remedies, Vanden sought, in relation to each of the Defendants, an injunction and an account of profits, or alternatively damages, in relation to Ms Tumulty’s breach of contract and the procurement of that breach, and/or for breach of confidence and/or for conspiracy to harm Vanden by unlawful means. Vanden pleaded, at paragraph 28, that they would particularise the account of profits claim “following adequate disclosure by the Defendants.” In relation to the alternative claim in damages they pleaded, at paragraph 29, that “quantum of such losses is not presently capable of particularisation and the Claimant will provide particulars of the same at the earliest practicable opportunity.”

At an inter partes hearing on 22 May HHJ Seymour QC, sitting as a judge of the High Court, granted the orders for interim relief sought against Ms Tumulty and Bolton, all parties having given appropriate undertakings, including undertakings by both Defendants as to disclosure and delivery up of documents the property of Vanden and VGL. The judge also ordered a speedy trial of the claim against them, with permission to Vanden to apply in respect of its claim against Kras, the trial to be limited to the issues of liability and injunctive relief, with all other remedies to be dealt with at a separate hearing if required. The trial was set down to commence on Monday 6 July 2015, with a time estimate of 3 days, and appropriate case management directions were given to ensure that the trial date was adhered to.

However, after disclosure was given by the first two Defendants, and while correspondence with Diepen was continuing as to the undertakings being sought from Kras, negotiations with Ms Tumulty and Bolton resulted in a Consent Order being made in the case of each of those Defendants.

The first Order before Master Cook, dated 25 June, contained terms of settlement agreed by Vanden and the Second Defendant, Bolton. This provided, so far as is relevant:

After consequential orders as to the use of Vanden’s information and springboard relief (with provision having been made at paragraph 4 for enforcement in relation to them and to the terms of settlement), paragraphs 14 – 17 provided, so far is as relevant, as follows:

The balance of £75,000….must be paid by 31 August 2015.

….

The Settlement Sum comprises:

a contribution to the Claimant’s costs in the sum of £99,000.

The second Consent Order is dated the following day, 26 June, before Master McCloud. This Order contained the terms agreed between Vanden and Ms Tumulty. Significantly, paragraphs 1 – 5 recorded Ms Tumulty’s full admissions to all the allegations of misconduct made against her: that she had acted in breach of the express terms of her contract of employment, of the implied term that she would serve Vanden with good faith and fidelity, and of her implied duty of confidence to Vanden; that she was induced by Bolton and Kras to act in breach of her duties to Vanden; that she provided Bolton and Kras with confidential and commercially sensitive information for the purposes of a business which the three Defendants intended to operate in competition with Vanden; that she conspired with Bolton and Kras to injure Vanden by unlawful means; and that such conspiracy was to use Vanden’s confidential information and to set up a competing business.

Upon the basis of these admissions, the trial date of 6 July was ordered to be vacated as between Vanden and Ms Tumulty in addition, and the mutual undertakings of the parties were discharged. Paragraph 3 of the Order provided that:

“3.

There be judgment in favour of the Claimant in respect of its claim against the First Defendant in relation to the Admissions at paragraphs 1 – 5 above with damages to be assessed in due course.”

There were also consequential orders as to springboard relief and compliance with the restrictive covenants in Ms Tumulty’s contract of employment. The Order provided for payment of the Claimant’s costs of the application dated 18 May, summarily assessed at £45,000, by 31 August and for payment of the Claimant’s costs relating to the speedy trial, to be assessed if not agreed. Costs from the date of the Order were reserved.

Copies of both Consent Orders were sent to Diepen, the Dutch lawyers understood still to be acting for Kras. Certainly it was Diepen who returned the Acknowledgment of Service on 26 June. And Kras then served its own Defence on 9 July, verified by Henk Kras and signed by counsel then instructed, in which all the allegations of unlawful conduct were denied. Dentons became aware, meanwhile, that Kras may have engaged UK solicitors to act for them. The correspondence shows that Diepen did not acknowledge this initially, despite requests for them to do so, and Notice of Change of Legal Representative was not in fact filed until 17 July, when Sintons Law, based in Newcastle, went on the record as acting for Kras in this litigation.

No agreement was reached as to undertakings to be given by Kras, and Vanden’s application for interim relief against Kras came in front of HHJ Seymour on Monday 20 July. By that stage, faced with lengthy witness statements and documentary evidence revealing extensive factual and legal dispute, the parties accepted more limited undertakings than were sought on both sides and the judge made no order on Vanden’s application.

It is correct, as Mr Quinn points out on behalf of Vanden, that as at the end of July 2015 no complaint had been raised by Kras about the Particulars of Claim; and no indication had been given that there was going to be an application to strike out the Claim as against Kras, whose Defence was filed after the two Consent Orders had been made. It is also correct that there has not yet been full disclosure given by Kras in this litigation. Directions for a speedy trial were proposed by Dentons and were being discussed in correspondence. The applications before the court now were not in fact made until 23 October despite Sintons stating, in their letter of 2 September, that the claim against Kras was now “…the subject of accord and satisfaction” and liable to be struck out if not discontinued; or that the claim was liable to be struck out on the alternative ground that the loss already recovered from Bolton now rendered the claim against Kras “pointless and wasteful.”

Mr Quinn submits that there is no merit in the present applications, which he suggests are a further delaying tactic adopted by Kras, who have failed from the outset to engage with the pre-action correspondence and with the litigation, and who have failed throughout to cooperate and to assist the court. On behalf of Vanden he submits that the combination of the forensic examination carried out by FTI, Ms Tumulty’s full admissions and the disclosure given by both her and Bolton has led Vanden to believe: (a) that Kras was the instigator of the plan to use Vanden’s confidential information and establish a business in competition with Vanden; (b) that it is likely that further documentation in Kras’ possession would reveal the degree of their involvement and the nature and extent of the loss caused to Vanden as a result; and (c) that Kras is still in a position to exploit Vanden’s confidential information through alternative commercial arrangements with brokers or directly with suppliers or customers. Vanden therefore wish to proceed with the claim against Kras, who should now give disclosure in the normal way.

On behalf of Kras Mr Cohen submits that, notwithstanding some delay in making these applications, due to the long vacation and the fact that he was not instructed in the case until late July, the claim against Kras should now be struck out or summary judgment entered for Kras. He advances three grounds in support of this submission, success on any one of which means that the claim against Kras cannot proceed.

His primary submission is that since the judgment by consent against Bolton has been satisfied, a satisfied judgment against either joint or concurrent tortfeasors discharges the tort, so there is no claim left to bring against Kras. In the alternative, he submits that the Consent Order in relation to Ms Tumulty, as one of three joint tortfeasors, was one of judgment with damages to be assessed. The parties reached agreement in the terms of the order and that agreement was one of release, with a mechanism for the determination of the figure that Ms Tumulty should pay. There was no reservation of the right to continue against Kras and in the circumstances of this case he submits that Vanden released the claim against all the Defendants. Finally, Mr Cohen submits that this is a claim without any remaining value. The Claim Form gave the sum of £100,000 as the maximum figure for Vanden’s loss; the Particulars of Claim, which have not been amended, are inadequate and fail to identify what loss is claimed; and the loss that can be identified appears to be minor. Since Vanden has already obtained £176,000 from Bolton, the costs of continuing are out of all proportion to any value that could be left, if indeed there is any loss remaining.

It is accepted that, for the purposes of determining the application to strike out or for summary judgment, the facts alleged in the Particulars of Claim should be assumed to be true. There is some merit in Mr Quinn’s submission that, notwithstanding apparent recognition of this “convention” there are several instances in the evidence where Kras have ignored it. Mr Cohen made his submissions, however on the basis of the contents of the Claim as pleaded, and I shall approach the matter on that basis.

Much time was devoted in argument to the question whether the three Defendants are sued as joint tortfeasors in this action. Mr Cohen submits that they are, but it is unnecessary to determine that issue for the purposes of this primary ground, because his argument does not depend on a finding that they are joint tortfeasors.

After identifying the parties, the first part of the Particulars of Claim deals with Ms Tumulty, as Vanden’s employee, and sets out her relevant express and implied contractual obligations. In relation to Bolton and Kras, the obligations of each of them, in relation to those contractual obligations and to Vanden’s confidential information, are pleaded in the same terms at paragraphs 14 – 19 (Mr Quinn accepts that the reference there to an equitable obligation adds nothing).

The alleged breaches of those obligations are pleaded from paragraph 20 onwards, commencing with Ms Tumulty’s breaches of contract and of her duty of confidence. At paragraphs 21 and 22, it is alleged that both Bolton and Kras “…induced the First Defendant to act in breach of her duties to the Claimant; and/or acted in breach of the duty of confidence that it owed to the Claimant, inter alia by failing to destroy the Claimant’s confidential information and also by making use of the same upon receipt from the First Defendant.”

The particulars of those breaches appear from paragraph 23 onwards and are said to be (as at 19 May 2015) “…the best information currently known to the Claimant in respect of the Defendants’ breaches.”

In my judgment the essence of these pleaded particulars is that the three Defendants are alleged to have acted in concert throughout. After identifying the information said to have been provided to Bolton and Kras by Ms Tumulty, paragraph 23.2 states:

“The First Defendant sent this information to the Second Defendant and/or Third Defendant and they retained and/or misused the same and/or failed to disclose to the Claimant that they had received the same for the purposes of a business which the three Defendants intended to operate together in competition with the Claimant.”

Paragraph 24 pleads, under the heading of “Conspiracy” the following allegation:

“Further or in the alternative, the Defendants (or any two of them together) wrongfully and with intent to injure the Claimant by unlawful means conspired and combined together to breach the First Defendant’s contract of employment. The Claimant is entitled to and will rely on the facts and matters pleaded above.”

Mr Quinn submits that, apart from the allegation of conspiracy, the claim against Ms Tumulty consists primarily of an allegation of breach by her of contractual obligations and duties of confidence owed to Vanden as her employer, whereas Bolton and Kras are alleged tortiously to have procured that breach. However, in Lumley v Gye (1853) 2 E&B 216, where liability for inducing breach of contract was first established, the court based its decision on the general principle that the person who induces another to commit a wrong incurs liability as an accessory. In the words of Erle J. at p 232 “….he who procures the wrong is a joint wrongdoer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of.”

I accept Mr Cohen’s submission that in reality every allegation in these Particulars of Claim is of joint wrongdoing by all three Defendants, acting in concert to use the Claimant’s confidential, commercial information to compete with and cause loss to the Claimant. In this sense, the individual allegations of wrongdoing all constitute the unlawful means which underpin the alleged conspiracy.

Further, the damage alleged to have been caused as a result of the First Defendant’s contractual breaches and the inducement of them by both the other Defendants is clearly subsumed in the overall conspiracy, which Mr Cohen realistically described as the “mothership” of the claims made against all the Defendants in these Particulars of Claim. None of the consequential loss and damage claimed at paragraphs 28 – 32 is said to arise by virtue of one unlawful act or by virtue of one particular Defendant. The damages sought are sought for the entirety of the unlawful conduct committed by all the Defendants.

On the case as pleaded the three Defendants are in my judgment joint wrongdoers, who are said to have inflicted common damage upon Vanden. Significantly the Consent Order made by Master Cook on 25 June, between Vanden and the Second Defendant, Bolton, was made on the basis of that pleaded case.

It seems clear to me that this was a final order, by consent, against Bolton which the court was invited to make, the parties having agreed terms of settlement, which terms were therefore part of the court order. It took effect from the day it was made (CPR 40.7). The parties did not choose the alternative “Tomlin” form of order to dispose of the claim, with the proceedings stayed on agreed terms scheduled to the order, which terms are not part of the order and cannot be directly enforced as an order of the court, or at any rate not without a further order.

What then is the effect of that Consent Order so far as Kras is concerned? In Mr Cohen’s submission the correct analysis is a simple one, namely that one of the joint wrongdoers, Bolton, was ordered to pay £176,000 in damages plus costs on a claim brought against three joint wrongdoers for the same damage; that this was a consent judgment which has now been satisfied; and that since there is no separate claim for damages against Kras or Ms Tumulty, there is nothing left to recover from Kras. The claim against Kras cannot therefore continue.

In resisting this challenge Mr Quinn makes a number of general submissions as well as submissions specific to this ground. In general terms he is severely critical of the lack of compliance by Kras with pre-action enquiries, the delay in making this application and the unsuitability of CPR 3.4 for a case of this kind, where admissions of serious misconduct involving Kras have been made by the First Defendant and disclosure is still to be given by Kras. He points out that there is no decided case in the field of employee competition litigation where settlement on terms with one defendant has led to the claim against another being struck out in this way.

On the specific issue of the Consent Order of 25 June, he submits that there is no reference in the order to a ‘judgment’, and that it is not therefore conceded that a ‘judgment’ has been satisfied. The fact that Bolton has complied with its obligations to pay the sums agreed is not the same thing and does not have the same effect. Further, he submits that it is clear from paragraph 5 of that Order that the claim is continuing against Kras and that the parties, including Kras, understood it to be continuing, which is why Kras filed its Defence on 9 July.

I have considered Mr Quinn’s submissions carefully, but I cannot accept them. There is no basis, first, for the suggestion that the Consent Order of 25 June is not to be regarded as a consent judgment. Mr Quinn described it in argument as ‘an agreement by the Claimant not to continue to sue the Second Defendant, which is incorporated in the order of the court staying the action,’ but this somewhat strained interpretation of a straightforward court order cannot in my view remove or reduce its status as a judgment of the court containing the terms agreed by the parties. Consent judgments and orders are referred to interchangeably at CPR 40.6 and what matters is its substance rather than its form. It is therefore correct to refer to this consent judgment as having been satisfied, it being accepted that Bolton has paid the sums it was ordered to pay.

Nor can I accept the submission that paragraph 5 of the Order assists the Claimant. While it reflects s.3 of the 1978 Act, that paragraph does not and could not permit continuance of the claim against Kras after the judgment is satisfied, having regard to the authorities referred to below.

It is correct that this point has not so far arisen in the specific context of employee litigation, or at least that is currently understood to be the case. But there is no basis for suggesting that the principle should not apply in such litigation, and the principle is both clear and long-standing. Mr Cohen accepted that, if the terms of settlement with Bolton had appeared in a Tomlin order, he could not now be making this application. And I accept Mr Cohen’s submission that, if the principle does apply and the claim cannot continue, the fact that there was some delay in making the application, while regrettable, can make no difference to the outcome.

In Bryanston Finance Ltd v de Vries [1975] 1 QB 703 the Court of Appeal considered whether the judgment by consent obtained against one defendant for damages for defamation (Lord Carbery) barred any further proceedings against another defendant (Mr de Vries) in respect of that cause of action. The court held that before the Law Reform (Married Women and Tortfeasors) Act 1935 was passed, that consent judgment would have been a bar to the continuance of the same action against Mr de Vries. However, s. 6 (1)(a) of that Act (subsequently re-enacted and extended by s. 3 of the Civil Liability (Contribution) Act 1978) abolished the former common law rule that judgment against one joint tortfeasor barred proceedings against the others. The consent judgment in this case had not been satisfied, but both Diplock and Lawton L.JJ held that, if it had been satisfied, there would have been a good defence to the claim against Mr de Vries (see page 733G-H, 739F-740B).

The editors of Halsbury’s Laws, Vol 97 at paragraph 449 express the principle in this way, referring to s. 3 of the 1978 Act:

“Judgment recovered against any person liable in respect of any debt or damage is not a bar to an action, or to the continuance of an action, against any other person who is (apart from any such bar) jointly liable with him in respect of the same debt or damage. However, a satisfied judgment (except in the case of a foreign judgment) is a bar to a claim against other tortfeasors, whether joint or several, who are liable for the same damage.”

Mr Quinn suggests that the editors are wrong in relation to that second sentence, but the principle was clearly stated by the House of Lords in Jameson v CEGB [1998] 1 AC 455, Lord Hope stating as follows at 473 E:

“….a claim of damages in tort is a claim for unliquidated damages. It remains unliquidated until the amount has been fixed either by the judgment of the court or by an agreement as to the amount which must be paid to satisfy the claim. It cannot be doubted that, once the amount of the damages has been fixed by a judgment against any one of several concurrent tortfeasors, full satisfaction will have been achieved when the judgment is satisfied. The law used to be that the judgment against one tortfeasor was itself, without satisfaction, a sufficient bar to an action against another joint tortfeasor for the same cause….In the case of concurrent tortfeasors a judgment recovered against one of them did not put an end to the cause of action against any of the other tortfeasors until it had been satisfied….Section 6 (1)(a) of the Law Reform (Married Women and Tortfeasors) Act 1935, which was replaced and extended by section 6 of the Civil Liability (Contribution) Act 1978, altered the common law on these matters. As the law now stands, a plaintiff is barred from going on with a separate action against another tortfeasor if the judgment which he has obtained in the first action has been satisfied.”

The consent judgment against Bolton having been satisfied, in my judgment there is now in consequence a bar to the continuance of the claim against Kras as another tortfeasor who is jointly liable on the pleaded case for the same damage. Satisfaction has extinguished the claim against the concurrent tortfeasors.

It is not in my view appropriate to describe the claim as an abuse of the court’s process in these circumstances, or such as to justify an order that the claim against Kras be struck out under CPR 3.4(2)(b). However, since it is acknowledged that success on this ground means that the case against Kras cannot continue, I grant the Third Defendant’s application for summary judgment to be entered on the basis that there is now no real prospect of success for the claim against that Defendant.

In these circumstances, I consider that it is unnecessary for me to deal with the alternative two grounds relied upon by Mr Cohen in support of the application, in circumstances where the court’s decision in this matter is required as a matter of urgency and where I have concluded that the position on the first ground is clear and straightforward.

The same cannot be said of the second and third grounds. The Consent Order made on 26 June was an order for judgment by consent against Ms Tumulty with damages to be assessed, and no question of satisfaction therefore arises. The question whether the three Defendants are joint tortfeasors, whether the agreement reached between Vanden and Ms Tumulty, before the Consent Order was made, was sufficient to constitute an accord and satisfaction, releasing the other Defendants from liability, and whether a reservation was made or was to be implied, all raise difficult issues which it is now unnecessary to address in this judgment. The same applies in my view to the third ground, that the Claim is inadequately pleaded, that the pleaded loss is a generalised claim of predicted damage and that there is no prospect of Vanden recovering anything further from Kras on the pleaded case.

For the reasons I have given, however, the Third Defendant’s application must succeed on the basis set out above. The parties should now agree an appropriate order or apply to lodge written submissions, or to be heard on the form of the order on a date to be fixed when this judgment is handed down.