Dorma UK Ltd v Bateman & Ors

As pleaded, this is an application by the claimant ("Dorma") for a springboard injunction against the first four defendants to restrain them from working for or with the fifth defendant ("Arrow") or anyone else in the business of commercial and industrial doors in the UK market, from soliciting specified customers, from poaching and employing specified employees and from competing with the claimant in relation to specified businesses. The claimant also seeks injunctions against all five defendants for the return and protection of the claimants' confidential information, including the provision of affidavit evidence in relation to the misuse of such information.

The claimant seeks an injunction against the first defendant to prevent breaches of his restrictive covenants and an injunction to prevent the fifth defendant, Arrow, from inducing the first four defendants to breach any orders made against any of them.

The application notice for this interim relief was issued on 28 September 2015 with a time estimate of one hour. This proved to be grossly inadequate. The application was listed before me on Wednesday 7 October with a revised time estimate of half a day. In the event it lasted a full day. I have had the benefit of skeleton arguments and full oral argument from Mr Adam Solomon and Ms Charlotte Davies on behalf of the claimant and from Mr Simon Devonshire QC on behalf of all five defendants. I am grateful to all counsel for the clarity of their submissions.

Because of the urgency of the matter, I indicated that I would give this extempore judgment today, Friday 9 October.

It is important at the outset to explain that the parties have agreed on directions for a speedy trial to be heard in December 2015 and this application must be viewed against that background. This is not the occasion for a minute analysis of all the evidence and arguments. I shall therefore concentrate in this judgment on t he main issues. However, I make it clear that, although I will not necessarily refer to each and every argument that has been advanced, I have taken into account and considered all the submissions that have been made.

The evidence before me on behalf of the claimant is a witness statement from Dorma's regional director for the United Kingdom and Ireland, Mr Craig Gilmour, dated 28 September, producing many documentary exhibits. On 6 October, the day before the hearing, witness statements from all five defendants were served. The statement on behalf of the fifth defendant, Arrow, was made by its managing director Mr Oliver.

In short summary, the factual background is as follows. D orma's business is the manufacture, repair, maintenance and installation of automatic commercial and industrial doors for the UK market. T he company has a branch in Bridgwater, Somerset, which covers the south west region. In October 2013, Dorma had taken over a company called Ascot Doors Ltd, including the team at Bridgwater. T he first defendant had been the regional service manager. He became Dorma's branch manager.

In January 2015, his terms of employment were enhanced. He received a substantial pay increase. His terms and conditions were also revised to include various restrictive covenants, including, to adopt the shorthand used during the hearing, a six month noncompete clause and nine month non-solicit, non-poach and non-deal clauses. I shall describe those clauses more fully later in this judgment. A s branch manager in Bridgwater, the first defendant had overall responsibility for all aspects of the branch's performance, including managing the team.

The second defendant was employed as a service surveyor responsible for generating sales through marketing and business development. The third and fourth defendants

It seems that in late 2014 or early 2015 t he first defendant approached the fifth defendant, Arrow, with a view to a possible change of employment. Arrow is a national company whose business is generically similar to the claimant’s, that is to say the manufacturer and supply of commercial doors. The precise extent to which Dorma and Arrow are in direct competition for the same business is less clear and may be one of the issues for the trial. There is a suggestion that each caters for different niches within the market.

Arrow was already a well-established company but its branch in Bridgwater, only two miles from the claimant's branch, did not open for business until the beginning of September 2015.

The claimant's case is that the first defendant, in breach of the restrictions in his contract and in breach of his fiduciary duties to the claimant, effectively engineered an unlawful "team move", by which he and the other three defendants all resigned from their employment with the claimant and took up employment instead with Arrow. It is common ground that they handed in their resignations on t he same date, 3 A ugust 2015. O n the claimant's case, at the time they tendered their resignations, the defendants were evasive and untruthful with the claimant's regional director, Mr Gilmour, not revealing that they were going to work for Arrow, a competitor. The first defendant, for example, when asked the direct question, lied in denying that he was going to work for Arrow.

On 5 August, the first defendant was placed on garden leave. He was reminded of his post termination restrictive covenants. The second, third and fourth defendants were subsequently placed on garden leave on or around 14 August.

At the start of his garden leave, the first defendant returned his company mobile phone and company laptop. All information on the devices had been wiped. He was not asked to do t his by his employers. T he claimant suggests that he must have been covering his tracks. The first defendant, in his witness statement, denies this. He does not remember wiping emails from his laptop or phone and, if he did, he says it would only have been in order to clear a few private emails which would have taken a long time to weed out individually; he did this as a matter of politeness and etiquette when returning the company's property.

Before starting her garden leave, but after giving notice, the third defendant, Chloe Power, contacted Mr Gilmour on 10 August asking for a printed version of all service clients. The request was refused. It was not the first such request. On 11 June, she had contacted the claimant's head office, asking for lists of all the company’s five star clients, ie those who pay an annual service fee. There would have been 800 or so clients and the information would have run to hundreds of pages. That request had been declined as well.

The claimant's case is that these requests must have been made so that the third defendant could take and misuse confidential information in the form of customer lists. During her notice period, before she went on garden leave, it is said that she and the fourth defendant, Holly Morton, were seen carrying out a high volume of photocopy. In her witness statement, the third defendant, Chloe Power, denies that there was anything sinister in her request for customer lists. The June request was so that she could have a list on paper, which she found easier to work with, and although this request came a f ew days after she had been offered an interview with the fifth defendant, there was no intention of misusing the information. S he says that the request on 10 August was for much the same reason. She was trying to get on top of

On 13 August, the fourth defendant, Holly Morton, approached the claimant's north west branch coordinator requesting that she be sent the reports showing all the contracts for the Bridgwater branch. This time the reports were sent. They included hundreds of customer names, contract start and end dates and the like. The claimant's case is that this was another attempt, now successful, to obtain confidential information for improper use in their new employment.

In her witness statement, the fourth defendant denies this. She explains at length the problems there were with the new computer system, exacerbated by the introduction of a call centre at Hitchin rather than personal contact with customers. She points that, when the covering email was sent, it is stated that Ricky Heere, the business process manager, had requested the same information as her, confirming that they both thought it was the best way to update their service maps system. She spoke to Mr Heere, who asked her to print off the reports and suggested that she and another employee should work through the information. S he and another employee, Claire Barrett, worked through the document and, when she finished, she handed the document back to Claire Barrett. She denies that she took any confidential information with her.

The case for the defendants is that, although the first four defendants all resigned from their employment on the same date, 3 August, and had been offered employment by Arrow on the same day, 15 July, this was not an unlawful team move.

The first defendant, Mr Bateman, says in his witness statement that he had been unhappy for some time with the changes in Dorma's business when they took over Ascot. The call centre at Hitchin was one of the problems. He had met with Mr Oliver of Arrow as along as February 2015 at a hotel in Leeds to discuss the possibility of joining Arrow. He said he had not discussed this with the second, third or fourth, defendants until a few days before he actually resigned.

The second defendant, Paul Bailey, says in his witness statement that he left Dorma's employment because he was dissatisfied with the way the company was working. He felt that his competence as a surveyor was being impugned and he had mentioned it to the first defendant, his manager, in June or July, saying he wanted to leave the business. He did not feel he was valued any longer. He says that he emailed a number of companies, including Arrow, but he did not tell the first defendant that Arrow was one of them. He had conversations with the third and fourth defendants about the negative feelings in the Bridgwater office resulting from changes to working practices. Both women confided in him that they were unhappy as well and were thinking of leaving. The second defendant accepts that he told both of them that he had considered applying to Arrow and that they might wish to do the same. He did not try to persuade them to leave the claimant.

The third defendant, Chloe Power, says in her witness statement that she too had been unhappy at Dorma. T he second defendant, Mr Bailey, gave her and the fourth defendant, Holly Morton, the email address of Mr Oliver at Arrow and she made contact with Arrow to register her interest in working for them. She says she did not discuss this with the first defendant, Mr Bateman, at that point. It was only a few days before she planned to resign that Mr Bateman said that he intended to resign as well.

The fourth defendant, Holly Morton, gives much the same explanation for her to decision to leave Dorma and join Arrow. She was unhappy in the job with all the changes, especially the new call centre. She discussed the situation with the second defendant, Mr Bailey, and discovered that he was thinking of joining Arrow. This prompted her to make the same enquiry. S he never discussed it with the first defendant, Mr Bateman.

The fifth defendant's witness statement from Mr Oliver, the managing director of Arrow, confirms that he received emails from the second, third and fourth defendants on 2 June 2015 enquiring if there were vacancies. He knew the second defendant by reputation and was keen to employ him. It was mainly because the second defendant wanted the third and fourth defendants to work with him as well that they were offered the job. They occupied comparatively unimportant junior administrator roles which could easily have been filled. Mr Oliver insists that the first defendant's approach to Arrow was independent of the approach by the other three defendants.

It is important to observe at the outset that, although the first defendant's contract of employment contained post termination covenants and restrictions, there were no such covenants and restrictions in the contracts of the second, thirdor fourth defendants.

On 14 S eptember, the claimant's solicitors wrote letters before action to the first defendant and the fifth defendant requesting undertakings. A t that stage no undertakings were forthcoming. On 22 September, the claimant's solicitors wrote preaction letters to the second, third and fourth defendants. No response had been received from them by the time this application was filed on 28 September. T he claimant's case is that evidence has recently come to light that the second defendant has been canvassing Dorma's customers since he has joined Arrow.

A day or so before the hearing, limited undertakings were offered by the first defendant but none by the second, third, fourth and fifth defendants. Between the hearing and judgment, as I shall explain later, undertakings have been put forward on behalf of the other defendants as well.

The issues I have to decide are as follows:

It is common ground that I should apply the principles in American Cyanamid vEthicon Ltd [1975] AC 396. I must be satisfied that the claim for relief in respect of each of the issues identified above is not frivolous or vexatious, in other words that there is a serious issue to be tried. If there is a serious issue to be tried, I must then consider the balance of convenience, in particular whether damages would be an adequate remedy on either side if the relief is refused or granted. In the words of Lord Diplock, at page 407H:

Mr Devonshire submits, however, that by the time the trial comes on in December a substantial period of any injunction, if granted, will have expired. He submits that I

In the present case, the claim for the injunction in relation to non-competition is based on the covenant in the first defendant's contract of employment for six months, and the period in respect of the other covenants is nine months. These periods would expire in February and May 2016 respectively. The date for the speedy trial is only some eight or nine weeks ahead. Mr Devonshire submits that at the very least I should "sift" the evidence carefully rather than simply accept that, because the claimant's case is challenged, there is necessarily a serious issue to be tried.

I do not accept that the test I should apply on this application is as high as whether the claimant is likely to succeed at trial. I do accept, however, that in relation to the application for springboard relief in particular I must analyse the evidence carefully to decide not only whether there is a serious issue to be tried but also whether there is any real prospect of success, and whether the court should in its discretion grant the springboard relief sought.

The claimant's case is that there was an unlawful team move orchestrated by the first defendant. M r Solomon described it in his submissions as a concerted attack on Dorma. It is no coincidence, he submits, that the first four defendants were all offered employment with Arrow on the same date, 15 July, or that all tendered their resignation to Dorma on 3 A ugust. A s a result, Arrow acquired a ready-made team, "up and ready" was Mr Solomon's phrase, to operate from their Bridgwater office in direct competition with Dorma, thereby gaining an unfair competitive advantage.

Mr Gilmour's evidence is that it could take up to 12 months for a new business setting up in the region to recruit a team with good experience and contacts and to build up a profitable business by legitimate means. It is said that the unlawfulness of the defendants' actions arises in several ways. The first defendant, as a senior manager with Dorma, should have reported the fact that the other defendants were planning to move to a competitor. Had he done so, there would have been the opportunity for Dorma to talk to the defendants and seek to assuage any concerns they had and try to persuade them to stay. Instead, the first defendant colluded in their actions in gross breach of his fiduciary duties to Dorma. The erasing of information from his company laptop and mobile phone, it is said, must have been done to cover his tracks.

The claimant's case is that the second defendant too was a comparatively senior employee. He encouraged the third and fourth defendants to leave Dorma and to join Arrow. He has been contacted customers of Dorma to solicit business since he has joined Arrow, making use of Dorma's confidential information. The claimant's case is that the third and fourth defendants are close working colleagues and friends. There was an improper attempt by the third defendant to obtain customer lists on 11 June and a further attempt on 10 A ugust. T he fourth defendant succeeded in obtaining a customer list on 14 August and, as a matter of inference, it is said this must have been copied and taken with them when they joined Arrow.

Although springboard relief is not sought against Arrow as such, the claimant's case is that Arrow has been a very willing beneficiary of the unlawful conduct of the other defendants. There was an obligation, it is said, on the first defendant at paragraph 2.5 of his terms and conditions of employment to inform any new employer of the post- termination restrictions by which he was bound. On the assumption that he did not inform Arrow, it was nevertheless incumbent on Arrow to satisfy themselves that their new regional manager was not subject to such restrictions. It is said that the unfair competitive advantage gained by Arrow is underlined by the fact that they obtained a complete team from Dorma without advertising any vacancies and without any formal interviews, ready to start the new operation on 1 September.

The case on behalf of the defendants is in effect that what may on the face of it look suspiciously like a co-ordinated team move is in fact fully explained in the defendants’ witness statements and was entirely innocent. F or the reasons each defendant separately explains, he or she had become dissatisfied with Dorma. The second, third and fourth defendants were quite entitled to go and work for Arrow, even if it is a competitor. It is submitted that the claimant's case amounts to no more than assertion based on suspicion, which is not sufficient to establish that there is a serious issue to be tried, still less to establish that the claim for a springboard injunction is likely to succeed at trial.

Counsel helpfully referred me to a number of authorities in the developing jurisprudence in relation to springboard injunctions. I do not propose to rehearse them at length because, as both counsel acknowledged, every case in the end turns on its own facts. I shall however refer to some passages from these authorities which are helpful in clarifying the principles.

First, I gratefully adopt the analysis of Haddon-Cave J in QBE Management ServicesUK Ltd v Dymoke [2012] EWHC 80; [2012] IRLR 458, where he draws together the principles from the authorities to date at paragraphs 240 to 247 of judgment. I quote from that analysis, omitting the case references:

Against this framework, it is necessary to analyse in more detail the evidence on which the claimant relies to support the inference of an unlawful team move. As ever, the chronology is instructive.

In my judgment, these individual pieces of evidence plainly give rise to a strong inference that this was an unlawful team move in the sense that I have outlined. They amount to a powerful circumstantial case. The coincidence of timing in relation to the registering an interest with Arrow (2 June), the offer of employment by Arrow (15 July) and tendering of resignations to Dorma (3 August) is particularly striking. It was not a matter which Mr Devonshire addressed discretely in his submissions and there

The defendants all deny the allegations against them. In my judgment, it is plain that there is a serious issue to be tried in relation to the question: was this an unlawful team move? Mr Devonshire submits that the evidence amounts to no more than suspicion and suspicion is not enough. He relies on dicta to that effect in CEF v Mundey (supra) at page 255D and in Re Lord Cable; Garret v Walters [1977] 1 WLR at 19F to 20B. In Caterpillar Logistics Services (UK) Ltd v de Crean [2011] EWHC 2154, Tugendhat J said at first instance that a case based only on suspicion does not raise a triable issue. He refused to make an interim confidentiality injunction in the absence of proper evidence to support the charge that the employee had improperly removed and retained confidential information. His decision was upheld by the Court of Appeal: see [2012] EWCA Civ 156. The facts of that case were, however, very different, and I do not consider that it provides more than general assistance in the task I have to perform.

Mr Devonshire submits that the explanations given by defendants in their witness statements for what may seem suspicious actions are entirely plausible. He submits that, when the evidence is sifted, the suspicion of impropriety is dispelled. I have considered very carefully and reflected upon the content of the defendants' witness statements. I have already rehearsed the gist of their explanations in my earlier summary of the factual background. It is to be noted, however, that the second defendant in his witness statement does not even address the issue of the email he sent to Westway, a customer of Dorma, soliciting their business. Mr Devonshire makes the point that there is no e vidence that any search was made for the product of the downloading of the customer list on 13 August to establish whether or not physically the list had been removed from Dorma's premises. H e also makes the point that, although the letters before action sent a month ago refer to an impending forensic analysis of the computer and phone to establish what precisely the first defendant had deleted, there is no evidence of any such examination. I was told, however, that this is neutral in that no independent forensic analysis has yet been undertaken.

I am acutely conscious of the need to sift and assess the evidence as a whole and I have done so. I am firmly of the view that there is not only plainly a serious issue to be tried on the question of an unlawful team move but also, if I am required to express a provisional view, that the evidence is strong. It will of course be a matter for crossexamination of the defendants in due course. Suffice it to say that I am sceptical of the explanations which have been put forward by the defendants, looking at all the evidence as a whole.

Nevertheless, the mere fact that there has been on the face of it an unlawful team move does not automatically entitle the claimant to springboard relief and certainly not to relief which would effectively prevent Arrow from employing the first four defendants at the Bridgwater office irrespective of whether they are likely to act unlawfully until trial.

In this regard, I bear in mind the helpful guidance given by Simler J in De VereHolding Company Ltd v Belgravia Wealth Management Europe KFT [2014] EWHC 3189. At paragraph 39, she said:

Mr Devonshire submits correctly that, even if the claimant has raised an arguable case in relation to the unlawfulness of the defendant's conduct, the court must also be satisfied that the relief sought does no more than proportionally negate the springboard advantage improperly obtained in consequence.

Mr Solomon accepts that the first paragraph of the draft order to which I alluded in the very first paragraph of this judgment is too widely drawn. That paragraph provided: "The First, Second, Third and Fourth Defendants must not by themselves, their servants, agents or otherwise howsoever carry on with, be employed or otherwise engaged by or concerned or interested in any capacity (whether for reward or otherwise) or provide any commercial, professional or technical advice to, or in any way assist, any other Defendant in the business of the manufacturing, repair, maintenance and installation of automatic, commercial and industrial doors for the UK market.”

Those four subparagraphs follow the wording of the post termination restrictions imposed upon t he first defendant by his contract of employment. The effect of subparagraphs (a), (b) and (c) is to prevent any improper soliciting of Dorma's customers or the enticing away of any of Dorma's staff. Paragraph (d) is different in that it would prevent the first four defendants from working for Arrow at the Bridgwater office, although it would not prevent Arrow from employing them at some other branch. Bearing in mind the location of the office in rural Somerset, it is doubtful whether any of the first four defendants could conveniently be employed at any other branch of Arrow elsewhere in the country. It would, however, be open to Arrow to continue their contracts of employment pending trial even if they could not continue to perform their duties at the Bridgwater office.

For practical purposes, an order in these terms would compel Arrow to engage a new team, at least until trial, building up the customer base from scratch. That is the position they would have been in but for the unfair advantage which, on the face of it, they gained in the presumed unlawful team move. I accept Mr Devonshire's submission that the claimant must show "the precise nature and period of any competitive advantage". I am satisfied that the period of the competitive advantage is still running and, on the evidence at present, it is likely to run for a considerable further period beyond the proposed date for a speedy trial. Mr Gilmour's estimate is that it would have taken 12 months for Arrow to build up the business to this level. It is certainly not an ephemeral or short term advantage such as to disentitle the claimant to springboard relief.

I have considered carefully whether it would be sufficient to make an injunction in the terms simply of subparagraphs (a), (b) and (c) of paragraph 2 of the draft order. However, I am persuaded that the evidence does justify making the order in the terms of paragraph (d) as well. For reasons which I shall give later in this judgment, I am satisfied that the restrictive covenant in paragraph (d) is likely to be held to be enforceable and justifies the making of an injunction against the first defendant in any event. It is only paragraph (d) that will have the effect of providing fair and just protection from unlawful harm on an interim basis by preventing further loss from the unfair competitive advantage which is assumed in the order I make.

In reaching that conclusion, I also bear in mind the following matters.

On the assumption that the defendants are unlawfully in possession of Dorma's customer lists, on which I am satisfied there is a serious issue to be tried and a real prospect of success, it will be very difficult to police the obligations in the proposed order without the inclusion of paragraph (d).

If an injunction in these terms is not granted and the alleged unlawful action is established at trial with substantial damages awarded, it is unlikely that the first four defendants will be able to pay such damages.

If, on the other hand, an injunction in these terms is granted and the defendant succeeds at trial, the claimant's cross-undertaking as to damages will afford the defendants the necessary protection.

If an injunction in these terms is not granted, the assessment of the claimant's loss is likely to be very difficult, although I accept that the same could be said of the defendant's’position should they ultimately succeed.

In the course of submissions, Mr Solomon explained that the approach of framing the springboard injunction against the second, third and fourth defendants in terms which mirror the first defendant's post termination restrictions is one which found favour with Simler J in the De Vere case. I accept that it is appropriate here as well. On that discrete point, Mr Devonshire made no s ubmission to the contrary. A ccordingly, subject to any further refinement counsel may suggest at the conclusion of this judgment, I will grant the springboard relief in the terms of paragraph 2 of the draft order. There are some minor adjustments to the definitions of "restricted customer"

The next issue is whether Dorma should be granted injunctive relief against all five defendants restraining them from using any of Dorma confidential information. As one would expect, the written terms and conditions of employment for each of the first four defendants contained restrictions on the use of confidential information both during employment and following termination. The precise terms of the restrictions differed as between the defendants.

In the case of the first defendant, under the heading restrictive covenants, there was a recital, page 40, of the need to protect the confidentiality of information with which he would be entrusted and that to protect the confidentiality of this information he agreed "not at any time whether during or after the end of your employment with the company to disclose to any person or to make use of any such confidential information".

In the case of the second defendant, there was an obligation at paragraph 20.11 of his terms and conditions, which included the following:

It follows that it would have been a serious breach of the third and fourth defendants’ duty of confidentiality to remove and/or make use of any confidential information which they took with them to Arrow whether they left the employment of Dorma. That proposition is not disputed. I have already concluded, for the reasons that I have explained, that there is a serious issue to be tried as to whether, as part of the unlawful team move, the second, third and fourth defendants were responsible for misappropriation of confidential information, particularly in the form of lists of Dorma's customers. It follows that there is a proper basis also to grant an injunction restraining the first four defendants from misuse of Dorma's confidential information until the trial.

The proposed injunction in paragraphs 3 and 4 of the draft order was in these terms: "3. Until the earliest of trial or further Order, the First, Second, Third, Fourth and Fifth Defendants must not:

At the end of the hearing on 7 October, I invited Mr Devonshire to put in writing the form of any undertaking which the first defendant was prepared to give as there had been some considerable discussion of this during submissions. As I recall, there had been no suggestion during the hearing that the second, third or fourth defendants would be prepared to give any undertakings. Taking up my invitation, Mr Devonshire helpfully forwarded by email yesterday, 8 O ctober, proposed confidentiality undertakings which the first, second, third and fourth defendants were now prepared to give.

The proposed undertaking will be in this form:

During the hearing, there had been debate in relation to the breadth of that definition of confidential information in paragraph 8 of the draft order, which in turn was taken from the first defendant's terms and conditions. I shall read the definition in paragraph 8: ""Confidential Information" means information (whether or not recorded in documentary form, or stored on a ny magnetic or optical disk or memory) which is not in the public domain relating to the business, products, affairs and finances of the Company or

Mr Devonshire submitted that this was far too wide a definition because it would include information which a employee had retained in his or her head. He relied by way of comparison upon the criticism of a wide definition of confidential information by the Court of Appeal in the Caterpillar case (supra) at paragraph 68. There Stanley Burnton LJ described the relief sought by the claimant as "hopelessly wide and vague" in that it did not specify the confidential information with any certainty but simply described it as "all or any confidential information acquired by the respondent during her employment with the claimant in whatever form". It seems to me, as a starting point, that that is far from the position here.

This morning there was a further exchange of emails between counsel, and sent to me, containing further submissions as to the extent to which information about a customer which is retained only in the employee's head should or should not be regarded as confidential information which the employee should not be permitted to use. T hat arose from the fact that the proposed undertaking which I have read seemed to confine the definition to confidential information contained in any documents or records.

In this regard, Mr Solomon relies upon the observations of Staughton LJ in LansingLinde Ltd v Kerr (supra) at page 425J:

My attention has been drawn by counsel to a recent decision of the High Court in Halcyon House Ltd v Baines [2014] EWHC 2216. There the judge, HHJ Seymour QC, sitting as a j udge of the High Court, was concerned with the issue of whether a customer's name in itself was or was not properly to be regarded as a "trade secret". The judge was referred to the passage I have just quoted from Lansing Linde v Kerr but (at paragraph 185) expressed his preference for what might be termed the traditional approach in Robb v Green, quoting the judgment of Hawkins J in that case at pages 12 to 13:

In reply to Mr Devonshire's submission based upon t hat authority, Mr Solomon acknowledges that customer names in themselves are not confidential but the combination of a customer's name and contact details would or certainly could be confidential. Here the concern was that there has been a misuse of information by the second defendant on the face of it in contacting the customer Westway which shows a degree of precision in the contact details. Moreover, Mr Solomon submits that the second defendant in particular may be in a position to know the requirements a customer of Dorma may have for goods or services and the price that he has paid before.

I do not propose to express any concluded view on this issue, Suffice it to say that there is still a difference between the parties in the terms of any acceptable undertaking that

So far as the fifth defendant is concerned, no undertaking has been volunteered. However, I have already found that there is a serious issue to be tried in relation to the alleged unlawful team move with a real prospect of success. It follows that there is a serious issue to be tried as well that the fifth defendant has been the unlawful beneficiary of the breaches of confidentiality on the part of the first four defendants. That is sufficient to make it appropriate that the fifth defendant also be subject to an injunction in the same terms. So I propose to make the injunction in the terms of paragraph 3 and 4 of the draft order against all five defendants.

The next issue is whether the defendants should be required to confirm by affidavit what use, if any, has been made of Dorma's confidential information. The order sought at paragraph 5 of the draft order is in these terms:

Mr Devonshire submits that such an order is inappropriate for three reasons. First, he submits the order falls on the wrong side of the line, so to speak, by reference to the guidance given by Mackay J in Aon Ltd v JLT Reinsurance Brokers Ltd [2009] EWHC 3448;[2010] IRLR 600. He relies on the observation by Mackay J at paragraph 26 in particular:

Second, Mr Devonshire submits that there is in any event no purpose in requiring such disclosure by affidavit when the information has already been given by the defendants in each of their witness statements: each denies removing or misusing any such confidential information. T hird, Mr Devonshire submits that the timetable of directions for the speedy trial in December envisages pleadings closing within the next fortnight and the defendants would be required to serve their witness statements for the trial within the next month, but by then disclosure will have taken place so that all relevant documents which would show, for example, the names of customers who have been approached by Arrow will in any event have become apparent. He also makes the point that on the timetable the claimant will have to be pleading its case very shortly indeed before any affidavit could reasonably be expected to be filed. Mr Solomon submits that the order should nevertheless be made. He says it is perfectly standard and if, as the defendants insist, they have done nothing wrong, they would simply have to repeat in very brief terms what they have said in their witness statements.

Although I accept that the proposed request is on the right side of the line and does not fall foul of the criticisms in Aon, in the exercise of the court's discretion I do not consider that such an order is necessary or appropriate on t his occasion. T he information has already been provided in the witness statements. If it proves to be false, the remedy of contempt is available just as much for an untruth told in a witness statement as it is for an untruth told in an affidavit. It seems to me the parties will have enough to do in preparing their cases for this speedy trial without the additional burden on the defendants of preparing separate affidavits, but all the relevant documentary evidence will emerge on disclosure. Accordingly, I do not propose to make an order for disclosure by affidavit in the terms of paragraph 5 of the draft order.

The next issue is whether the first defendant should be restrained from breaching the restrictive covenants in his contract of employment, including in particular the covenant against competing with Dorma. There is a substantial measure of agreement in relation to the restrictive covenants. By the conclusion of submissions on 7 October, Mr Devonshire had conceded that all but one of the covenants should be the subject of an undertaking or an injunction, although there was some slight issue still with the wording of the related definitions of "restricted customer" and "restricted person". I deal with the covenants in turn.

Paragraph 6a of the draft order provides that the first defendant must not "solicit or endeavour to entice away from the company or any group company the business or custom of a restricted customer with a view to provide goods or services to that restricted customer in competition with any restricted business".

Mr Devonshire takes issue with the definition of restricted customer in paragraph 8 of the draft order, which is:

There is however a more fundamental dispute as to whether, for the avoidance of doubt, the claimant should provide a list of the customers in question so that the injunction can be framed by reference to that list. Mr Devonshire submits that such a list would make for clarity: everyone would know exactly where they stood. H e submits that that is particularly important for the fifth defendant, Arrow, who will be giving an undertaking or submitting to an injunction not to cause, induce, encourage or permit any breach of the order by the first defendant.

Mr Solomon submits that with the removal of the words "or about whom he became aware or informed" and the substitution of the word "dealt" for "had contact", there is perfect clarity. The first defendant knows perfectly well who the relevant customers are with whom he dealt in his last 12 months. If the fifth defendant, Arrow, permitted the first defendant to solicit such a customer unwittingly, that would not constitute a

I have considered this matter carefully. In the end, I accept Mr Solomon's submissions and I propose, subject to any further submissions there may be at the conclusion of this judgment, to make an injunction in the terms of paragraph 6a. I say immediately that it may be that it is far easier for there to be injunctions in respect of this part of the restriction rather than undertakings, commendable as it is that undertakings have been proffered at a late stage. I say that because of the differences in the wording of the various covenants and undertakings and the importance of consistency and ease of interpretation of the order. That is a matter to which we can return if necessary.

As to paragraph 6b of the draft order, there is no dispute about the proposed terms. It provides that the first defendant must not "in the course of any business concern which is in competition with any restricted business offer to employ or engage or otherwise endeavour to entice away from the company or any group company any restricted person". Nor is there any dispute about the terms of paragraph 6d of the draft order, provided the definition of restricted person in paragraph 8 is amended. As drawn at present in the draft order, that definition reads as follows:

What is proposed is that the words from "and who could materially damage" through to "Restricted Business and" should be deleted and the word "dealt" in the penultimate line replaced by the word "worked". Mr Solomon was content with those proposed amendments by Mr Devonshire during the course of submissions and I am content to make the injunction in those terms.

Nor is there any dispute over the terms of paragraph 6e, although an alternative formulation has been provided by undertaking. Paragraph 6e provides that the first defendant must not "be involved with the provision of goods nor services to (or otherwise have any business dealings with) any Restricted Customer in the course of

The restrictive covenant which remains the subject of dispute is paragraph 6d of the draft order, by which the defendant must not:

This restriction is of only six months duration. A s the exceptions make clear, it restricts the first defendant only from involvement in a competing business in the geographical area served by Dorma's south west regional office. Mr Solomon accepted that proposition in the course of submissions and indeed he relies upon it as indicative of the reasonableness of the covenant. So too the exception in paragraph (iii) that there is no pr ohibition on a ctivities of the kind with which the first defendant was not concerned to a material extent in the last 12 months of his employment with Dorma.

The starting point, of course, is that any covenant in restraint of trade is presumed to be unlawful. It is for the party who seeks to rely upon it to show that it is reasonably justified. Mr Devonshire relies upon the guidance given by the Court of Appeal in Office Angels Ltd v Rainer-Thomas [1991] IRLR214. T here it was held that if a covenant between an employer and an employee designed to prevent competition by an employee after termination of the contract of employment is to be upheld as valid, it must be shown that there is an advantage or asset in the business which can properly be regarded as the employer's property and which it would be unjust to allow the employee to appropriate for his own purpose; the court must be satisfied that the restriction is no greater than is necessary in protecting the employer's legitimate interest. M r Devonshire relies in particular upon a passage in the judgment of Sir Christopher Slade at paragraph 49:

Mr Devonshire submits that in the present case the interests requiring protection are customer connection and work force stability. He suggests that this is apparent from paragraph 44 of Mr Gilmour's witness statement, which describes the risks to the business of Dorma if an injunction is not granted by reference to those interests. However, as Mr Solomon points out, that is an incomplete reading of Mr Gilmour's evidence and of the terms of the restrictive covenant as a whole. In particular, it is important to note the recital to the post termination restrictions at paragraph 2.1 of the terms and conditions, at page 42 of the bundle:

In other words a critical legitimate interest requiring protection is the employer's confidential information. T his ties in with subparagraph (d) under the heading restrictive covenants, at page 40 of the bundle, in the first defendant's contract of employment, which provides:

Mr Solomon submits that non-competition covenants are often the only practicable solution to the difficulty of policing or enforcing confidentiality provisions. He cites the approach of the Court of Appeal in Thomas v Farr Plc [2007] EWCA Civ 118. At paragraph 42, Toulson LJ said:

The court went on to identify pricing and financial information as clear examples of information to which the employee was exposed during the course of his employment and which the employer was entitled to require to be kept confidential after termination of the employment. In this context it is relevant to observe that part of the evidence relied upon by claimant is that the first defendant has recently approached one of Dorma's engineers inviting him to join Arrow and has promised to beat the pay that that engineer was receiving at Dorma. The first defendant's special knowledge of the overall details of Dorma's business in the south west makes this, in my judgment, a classic case for the enforceability of a non-competition restriction. It is on the face of it reasonable "in time and space". I stress that it is not for me at this stage to decide the issue finally but there is certainly a serious issue to be tried, with a reasonable prospect

The final issue is whether Arrow should be restrained from causing, inducing, encouraging or permitting the other defendants to act in breach of orders made against them in this application. Very properly, Arrow have indicated that they are prepared to give an undertaking in this regard and, subject to any further submissions, it seems to me that that would be an appropriate way of dealing with that particular part of the relief sought.

That concludes my judgment. I repeat my gratitude to counsel for their very considerable assistance.