Theedom v Nourish Trading Ltd (t/a CSP Recruitment) & Anor

The summary of the facts that I have given above can be fleshed out with some further detail, most of which is not controversial.

The first defendant, CSP, was founded by Karl Purviss some 8 years ago. It specialises in recruitment for the manufacturing, food production, technical engineering, logistics, and warehouse industries. The second defendant, Colin Sewell, has worked for CSP since 2010. At the relevant times he was its Sales Director, describing himself as Managing Partner. The company has operational locations in Leicester, Coventry, Nuneaton, Milton Keynes, Durham, Bracknell and Barnsley.

CSP offers its services for the recruitment of various kinds of worker. One category is “unskilled” labour, known as “industrial” in the recruitment business. Another aspect is the recruitment of “semi-skilled” people for roles in the technical and engineering sector. This category of role is known in the business as “technical”. There is a third category of roles which has been described as “commercial”, or “white collar”. This category covers administrative staff, human resources personnel and others. Naturally, a given business may have a need for staff in more than one of these categories. A “technical” company may have a need for both “technical” staff and “industrial” labour, for instance.

Mr Theedom joined CSP in June 2013, working in its Leicester branch. At that time the other members of staff working in that branch included, in addition to Mr Purviss and Mr Sewell, Joanne Cowling, Kate Kirszak, Zoe Crutchley, Agnieszka Grzegorgzyk (“Agnieszka”), and two receptionists, Aneta and Evelina. Mr Purviss had his own office. Ms Cowling worked as his PA. The receptionists worked in the “Industrial” office, which included the reception area. All the other members of staff worked in the “Technical and Engineering” office, an open plan office area separated from, but situated between, Mr Purviss’s office and the Industrial office.

All the sales activity took place in the Technical and Engineering Office. Phone calls were made in the presence and hearing of fellow staff members. Vacancies which the company was seeking to fill would be written up on whiteboards in the office, visible to anyone in the room.

Ms Kirszak, Ms Crutchley and Agnieszka all worked for CSP’s technical division, “CSP Technical”. Agnieszka had been there the longest. Ms Crutchley joined in February 2011 as a trainee. Ms Kirszak joined in December 2012, specialising in engineering companies. The two became friends. Mr Theedom was initially engaged as a trainee in the technical division. A few weeks after that he began working in “CSP Industrial”, though still situated in the same Technical and Engineering office.

Mr Theedom reported directly to Mr Sewell. He was a consultant, which meant that his role was in sales, which is to say persuading a client employer to engage the consultancy to find staff. CSP also had a servicing function, which involved finding and providing the staff to the client. CSP had a database called Enterprise, on which the names of clients and prospects were kept, along with contact details of client personnel. There were hundreds, or a couple of thousands of names on this list, depending on whose account one accepts. It does not matter for the purposes of this case. What is agreed is that the number of businesses operating in the technical and engineering sector in the Leicestershire area was much greater, at around 13,000.

Mr Theedom’s evidence is that the fact that he was employed to sell CSP’s services did not exclude the performance by him of some “servicing work”. That is for the simple reason that it would be unprofessional, having won a client’s business, simply to pass the client on to the service personnel without some form of handover and client care. It seems to me sensible and credible that there should be no stark and rigid division of roles, although it is clear that Mr Theedom was employed to sell, and that is what he preferred.

Mr Theedom signed a contract in August 2013. It provided for one month’s notice of termination on either side (once his 6-month probationary period had ended) but made clear that no notice was required in the event of gross misconduct, or some other event justifying summary dismissal. Clause 14 contained express duties to maintain confidentiality. By that clause, Mr Theedom acknowledged that the disclosure of any confidential information to an actual or potential competitor of CSP would damage its business. The definition of confidential information in this clause included “client … lists or details”, “relationships with actual or potential clients”, and the “needs and requirements” of such persons. It is common ground that Mr Theedom had a duty of loyalty to his employer.

Clause 15 contained CSP’s standard post-employment restrictive covenants. The material parts provided as follows:

“15.2.

The Employee will not without the prior written consent of the Employer (such consent only to be withheld so far as may reasonably be necessary to protect the legitimate business interests of the Employer) during the Employment or for a period of six months from the Termination Date whether alone or jointly with or as a shareholder, adviser, principle, partner, agent, director, employee, consultant or otherwise of the Competing Business, directly or indirectly:

15.2.1.

Solicit or canvass, or attempt to solicit or canvass, business from any Applicant with whom the Employee dealt;

…

15.2.3.

Solicit or canvass, or attempt to solicit or canvass, business from any client with whom the Employee dealt;

15.2.4.

Deal with or accept instructions from any Client with whom the Employee dealt.”

The key terms “Client” and “Competing Business” were defined:

“15.1.2.

“Client” means a person, firm or corporate body in contact with the Employer (or any Group Company) within a period of six months ending with the Termination Date or for the period of the Employment if shorter, for the purpose of obtaining permanent, temporary or contract staff and whose name is recorded in the Employer’s (or any Group Company’s) records which the client has not also been registered with the Competing Business during the said period and was not a client known to the Employee prior to the Employment who he/she introduced to the Employer.

15.1.3.

“The Competing Business” means any person, firm or corporate body providing services directly or indirectly in competition with the Employer.”

Mr Theedom’s starting salary was £14,000 per annum, payable monthly in arrears. The contract provided for an entirely discretionary “incentive bonus”. As a matter of fact, there were two bonus structures in place. One was based on the number of people recruited by the consultant. It yielded a pound per person per shift, for the first three months of the individual’s employment. The second scheme was a branch bonus paid annually to those branches that beat their profit targets. The excess profit would be shared out between the branch staff.

Over the first few months Mr Theedom was successful at his job, and brought in a good deal of business. In his evidence at the trial Mr Purviss described Mr Theedom as a good salesman. He appears to have been something of a favourite of Mr Purviss. Mr Theedom’s basic pay was increased to £16,000 after three months. Later it was increased to £18,000. In October 2013 he was able to move into a flat for which he paid £625 a month. Shortly after this, Gavin Avis joined the company as a consultant, working on technical and engineering sector jobs with Zoe Crutchley and Kate Kirszak. Mr Avis sat in the Technical and Engineering Office, opposite Mr Theedom.

Mr Theedom’s daily routine involved a large number of cold calls soliciting business from employers. His aim would be to set up a meeting with a decision-maker at the target company in order to pitch CSP’s business to them. He estimates that he would make between 30 and 50 calls a day, or a couple of hundred a week. CSP’s Enterprise database had at least 500 company names on it. Mr Theedom told me that he took the view this was out of date, and created his own list by taking information from the internet.

When a call leads to a customer engaging CSP the process is known as “conversion”. A high percentage of calls lead nowhere, as is illustrated by the relatively small number of conversions achieved by Mr Theedom over the year in which he worked for CSP. He must have made many thousands of calls in that time, but the highest figure he gave for the number of conversions he achieved was 19. Shown a CV he prepared in late June 2014, he accepted that the figure was not more than 16. He also accepted that although some of those 16 clients were converted by him phoning the client, several were converted after meetings attended not only by him but also by the much more experienced and senior Mr Sewell and/or Mr Purviss.

Mr Theedom confirmed in cross-examination that the hardest part of the consultant’s job is getting past the switchboard or receptionist at the potential client. Direct contact with the decision-maker is what the consultant is looking for. A direct line phone number would be of great value, but hard to obtain. A personal email address is the best alternative.

It is relevant to what follows to note that the 16 companies converted by Mr Theedom, with or without the assistance of his seniors, included companies named BI (Europe) Limited (“BI”), Pallex Group (“Pallex”), and Simtom Foods (“Simtom”). Other companies which were clients of CSP during Mr Theedom’s period as a consultant for the company included Shield Engineering Limited (“Shield”), F1 Manufacturing (“F1”), Summit Engineering (“Summit”), Biffa Group (“Biffa”), Armstrong Logistics (“Armstrong”), Carter Design, Midland Metal Products and a company named Brands2Hands.

Ms Kirszak and the five Clients. On 17 January 2014 Ms Kirszak left CSP to join a rival recruitment company, Malloy & Flynn, where she has been employed ever since, as a consultant recruiting for positions in technical and engineering companies. Shortly after starting in this new role, in about early February 2014, Ms Kirszak sent out an email to a large number of companies soliciting their business. The addressees included a number which were clients of CSP, with whom she had dealt when she worked for CSP.

CSP came to learn of these approaches, and complained by letter from Mr Sewell of 26 February 2014. Mr Purviss followed up on 14 March 2014, when he also wrote to Molloy & Flynn. Mr Purviss’s complaint alleged breaches by Ms Kirszak of the restrictions imposed by clause 15 of CSP’s standard terms by canvassing, soliciting, or having other business dealings with five Clients, as there defined. Molloy & Flynn were accused of procuring such breaches. The letters threatened legal action, claiming an injunction and damages.

Maloy & Flynn instructed solicitors, who responded asserting that any dealings with the five companies fell outside the scope of clause 15, because all five had been “registered with the Competing Business”, Molloy & Flynn. CSP itself instructed solicitors. The dispute was ultimately resolved on 1 April 2014 by written undertakings from Ms Kirszak covering the period to 17 July 2014. She undertook, among other things, that she would not solicit or canvass business from “any client and/or customer” of CSP “whom I had contact with in the course of my employment” in the 18 months prior to 17 January 2014. The undertaking provided that it was “to specifically include” the five companies the subject of CSP’s complaint. Plainly, though, it was not limited to those five companies. The undertakings did not contain any exemption for companies which had been registered with Molloy & Flynn.

Ms Kirszak accepted in cross-examination that she strongly resented CSP taking these steps against her. She resented it that CSP had caught her out doing something that she should not have been doing, and she was also resentful because it would be much harder to bring in business during her first six months at Molloy & Flynn if she could not talk to people with whom she used to deal when she was at CSP.

Armstrong. At around this time, on dates which I find were 2 and 4 April 2014, Mr Theedom had the following LinkedIn exchanges with a former CSP employee called Amie Parrish. She had worked from CSP’s Tamworth office, and had left earlier in the Spring:-

It was at around this time that Ms Crutchley left CSP. She left as a result of concerns and suspicions about her conduct, harboured by Mr Sewell. He had formed the view that Ms Kirszak was trying to get candidates from Molloy & Flynn into Shield. Mr Sewell had been concerned during the company’s investigation of Ms Kirszak’s conduct, that Ms Crutchley had covered up for Ms Kirszak by reporting, falsely, that Ms Kirszak had not approached Shield. Andrew Meacham of CSP confronted Ms Crutchley with the company’s suspicions that she had been helping Ms Kirszak to break her obligations to CSP. Ms Crutchley denied this, but decided to leave the company. In April 2014 she left to join an agency called Precision as a business development manager. She was to stay with Precision until June 2014, when she moved to Molloy & Flynn.

In May 2014, Sue Crawford joined CSP’s Leicester branch as Branch Manager. In that role she was Mr Theedom’s direct point of contact, but she sat in the Industrial office whilst he and others including Mr Sewell were in the Technical and Engineering office next door. Ms Crawford nonetheless witnessed discussions in the office about “severe problems” that Zoe and Kate had caused for CSP after they left. The discussions related to breaches by them of their restrictive covenants which it was thought were affecting CSP’s business. Gavin Avis and Agnieszka were involved in these discussions.

Mr Theedom had been friends with Ms Kirszak for some time when, at about the end of May 2014, they began an intimate relationship. They have remained in a relationship ever since, and now have a 6-month old child. The fact that they were in a relationship became known to some in the office. It was known to Mr Avis from, as I find, April or May 2014. Ms Crawford knew about it, and told me there were discussions in the office about it.

Carter Design. In May 2014 Gavin Avis was engaged in pitching to Carter Design, which was based in Market Harborough. Carter Design specialise in point-of-sales displays, using both skilled and unskilled labour. Ms Crutchley had dealt with the company before she left CSP, having established a relationship with them in January 2014. Mr Avis attended a meeting with Bill Brooker, who asked him to start looking for suitable non-skilled staff in the local area. On 15 May Mr Avis emailed Mr Brooker. On 21 May he emailed Paul Johnson of Carter Design, to explain CSP’s approach and what it could do for the business in relation to the recruitment of skilled staff.

Bill Brooker provided Mr Avis with information on the kinds of candidate that Carter Design was looking for, dates on which they would be required, and the pay rates. This was talked about openly in the office and “would have been” written up on the whiteboard, said Mr Avis in his statement. But “soon after this” Mr Brooker cancelled the bookings. Mr Avis recalls seeing an advert by Maloy & Flynn seeking to recruit for similar work for a Market Harborough company, which aroused his suspicions. Later, after this case began, Mr Avis found that on 27 May 2014 his email to Mr Johnson of Carter Design had been forwarded from his, Mr Avis’s, CSP email address to that of Mr Theedom.

Biffa. This company had been a client of Ms Crutchley’s when she was at CSP. She dealt with Chris Smith. It seems, however, that they had not had dealings since about August 2013. At any rate, Mr Smith had evidently not learned of Ms Crutchley’s departure from CSP, because at 10:42 on 23 June he sent an email to Ms Crutchley’s CSP email address, recording that Biffa was looking for a couple of temporary mechanical engineers/fitters to work at its Wanlip depot for a couple of weeks. “We are looking for an immediate start”, he said. The email was auto-forwarded to the inboxes of Mr Sewell and Agnieszka. CSP responded within the hour. When it did so, it was told that Ms Crutchley had already contacted Biffa and was looking to fill this vacancy. This is said by Mr Theedom and Ms Crutchley to be a coincidence.

Summit. Shortly after this, Ms Kirszak had dealings with Summit. They had been a client of CSP when she joined the company, and had been part of her portfolio. She had dealt with Sean Frankham. On 24 June 2014 Summit contacted CSP seeking help in recruiting a press brake operator. This recruitment need was discussed in CSP’s office. An arrangement to meet the client was made. Agnieszka attended the meeting, which was on 26 June. At that meeting she was told by Summit that Ms Kirszak was due to meet them later the same day. Ms Kirszac accepts that she made contact with Summit at around this point in time and that as a result, in due course, she arranged and attended a meeting with Mr Frankham. This was at some time towards the end of June 2014. This conduct was clearly in breach of Ms Kirszak’s undertakings of 1 April 2014. She maintains, however, that the meeting resulted from an initiative of her own. The fact that she and Agnieszka had arranged to meet Summit on the same day is said to be a coincidence.

F1. At some point in about late June 2014 Ms Kirszak contacted F1. This was a long-standing client of CSP, with whom Ms Kirszak had dealt when employed at CSP. She had spoken approximately every week to someone called Lisa at F1, who was on CSP’s database as the main point of contact. Her calls had been to find out F1’s requirements and to discuss potential candidates. On this occasion, Ms Kirszak spoke to the managing director, Scott Kirkpatrick. This was probably around 23-25 June because at 13:05 on 25 June, Ms Kirszak emailed Mr Kirkpatrick, thanking him for taking her call. She recorded their agreement that she would start looking for MIG and TIG welders as well as sheet metal workers. She reminded him that she had mentioned she had previously recruited for engineering staff at F1. Her email set out Molloy & Flynn’s rates and terms of business.

All of this, as Ms Kirszak accepted in cross-examination, was in breach of the undertakings she gave on 1 April 2014. It happened at a time when CSP had just learned that F1 had a need for welders. CSP’s Enterprise database records a reported need for two welders in late June.

CSP did not at that stage find out about Ms Kirszak’s contact with F1. But it did know that Ms Crutchley had been in contact with Biffa soon after Mr Smith’s email arrived in her CSP inbox, and that Ms Kirszak had contacted and arranged a meeting with Summit soon after that company had notified CSP of its need for a press brake operator. These facts aroused strong suspicion at CSP. Mr Sewell in particular was very suspicious. He reasoned that these contacts appeared to result from leaks; the vacancies were for technical posts, so nobody on CSP’s technical team had any motive to leak such information; but Mr Theedom had both the opportunity and the motive: he sat in the same office as those who were dealing with and discussing these vacancies, and he was close to both Ms Kirszak and Ms Crutchley and likely to want to impress or curry favour with them. No doubt the background of apparent breaches of covenant by each of the two ex-employees played its part in fuelling these suspicions.

It is against this background that Mr Purviss arranged to meet Mr Theedom on 26 June 2014, to discuss with him the suspicions that were entertained. It is common ground that there was a meeting between the two that afternoon, in Mr Purviss’s office, and that the company’s suspicions of disloyalty and passing information to Ms Crutchley and Ms Kirszak were discussed. Otherwise, the parties have significantly differing versions of what took place that day, to which I shall return. It is common ground also that the two men met the following morning at CSP’s offices, but again there are significant differences between their accounts of what took place.

The differences between the parties about the meetings of 26 and 27 June include a dispute about the length of each meeting. Mr Theedom describes the first one as a long meeting of some three hours. Mr Purviss’s account is of a short preliminary meeting lasting only some 10 minutes. Mr Purviss describes the 27 June meeting as a disciplinary one. Mr Theedom says they met in the corridor. It is common ground however that at one or other of the two meetings (the longer one) Mr Purviss demanded that Mr Theedom hand over his phone, so that he could check it. Another matter that is not in dispute is that on the morning of 27 June Mr Theedom signed undertakings in the following form:

“FORM OF UNDERTAKING

I, Mr Sam Theedom having signed a contract of employment with Nourish Training Ltd t/a CSP Recruitment on 13^th August 2013 and having commenced employment on 16^th June 2013 as a Recruitment Consultant and having ceased employment on 27^th June 2014

HEREBY UNDERTAKE to Nourish Training Ltd as follows:

For a period of 6 months from the date of this undertaking to not do any of the following

1.

Solicit or canvass, or attempt to solicit or canvass, or encourage others to solicit or canvass business from any employee and/or temporary worker of Nourish Training Ltd with whom I had contact with in the course of my employment in the 18 months prior to my employment with Nourish Training Ltd ceasing;

2.

Solicit or canvass, or attempt to solicit or canvass business, or encourage others to solicit or canvass business from any client and/or customer of Nourish Trading Ltd with whom I had contact with in the course of my employment in the 18 months prior to my employment with Nourish Training Ltd ceasing. This is to specifically include the following companies:”

The list that followed named 17 companies, being the 16 that Mr Theedom says he converted, and one other, added by hand by Mr Theedom.

Immediately on leaving CSP’s offices Mr Theedom visited the offices of “Regional Recruitment”, where he sought alternative employment. In the meantime, Mr Sewell drafted and sent out the first of the emails complained of. It was sent at 10:37 on 27 June to Shield, in the following terms:

“Dismisall for gross misconduct

Morning Chris

I am writing to all my customers to make them aware that we have had a very serious incident occur with one of our staff.

Following an investigation, we have discovered that one of our recruitment consultants, Sam Theedom, has been passing sensitive and confidential company information to his girlfriend, Kate Kirszak, who works for Maloy & Flynn, and Zoe Crutchley, who moved to Precision Recruitment two months ago, but who has now also joined Maloy & Flynn.

As you will remember, Chris, Kate is one of our ex-employees, who left earlier in the year year and who we were forced to take legal action against to try to prevent her from attacking our business. We have also been forced to take the same action against Zoe Crutchley.

It now appears that, over the past three months he has been regularly passing both women details of our business, customers and our leads, and as a result he has today been dismissed for Gross Misconduct. He has been passing both of them details of the conversations and proposals we have been working on with our customers, including the Shield Group, and has undoubtedly seriously undermined us. We are also considering whether to take criminal action against him.

We are not aware whether the owners and directors of Maloy & Flynn are aware of what has been going on, but we will be contacting them to raise the matter with them. Whilst extremely unusual, this is the type of unprofessional behaviour which I believe my proposal will prevent from happening in the future. I will make you aware of further developments.

Kind Regards,

Colin Sewell

Managing Partner.”

(The emphasis is mine).

Mr Sewell sent one other email in similar terms 7 minutes later. He sent a further 112 on Sunday and Monday 29 and 30 June. Most of these were sent on the Sunday evening between 20:50 and 22:26. Some of these emails opened by saying that Mr Sewell was writing to customers “and companies we have previously been in contact with”. This apart, their text was in substantially the same form as the text set out above, any variations being immaterial. All of this was done on Mr Sewell’s own initiative, without discussing it with Mr Purviss, and without notifying him of what was to happen.

On the morning of 27 June, whilst Mr Sewell was engaged in drafting and sending out the initial emails, Gavin Avis was tasked with inspecting Mr Theedom’s CSP email inbox. In the process he came across the LinkedIn exchanges between Mr Theedom and Amie Parrish of April 2014. He emailed these from Mr Theedom’s email address to his own, from which at 12:03 he emailed the exchanges to Mr Purviss.

It was on the morning of Monday 30 June 2014 that Mr Theedom learned that emails on the lines of those complained of had been sent out. He learned from Kate Kirszak, who had been alerted by a client. Mr Theedom did not know then, or for some time afterwards, on what scale the emails had been sent. An email exchange between Mr Theedom and Mr Purviss began on 30 June, and continued over the days that followed. Mr Theedom complained bitterly of the emails that Mr Sewell had sent. Mr Purviss, who had not known of them until Mr Theedom raised the matter, sought to investigate and to respond.

The remaining emails complained of were sent out by Mr Sewell on Wednesday 2 and Friday 4 July 2014. They contained substantially the same words as those quoted above, except that the subject line was “Important Information”, and the words I have put in bold were cut out. Hence Judge Moloney’s conclusion that the last nine emails did not impute grounds for suspecting criminality.

The statements of case and the parties’ witness statements as they stood at the outset of this trial gave rise to the following issues in relation to the three elements of the imputation identified by Judge Moloney:

The issues have since developed, in two respects.

As is obvious from the summary above, a key issue in this case is whether the two disputed documents are authentic. If they are, then their contents are likely to be truthful. If that is so, the defendants have a strong case in support of the first and second strands of their defence, at least.

The authenticity of the documents is supported not only by Mr Purviss, the author of the documents, but also by evidence from Mr Sewell, Mr Avis, Ms Cowling, and Ms Crawford. Mr Theedom’s case therefore involves allegations not only of forgery but also of perjury, and a conspiracy to mislead the court involving several individuals. Mr Bennett has however presented and developed his client’s case carefully and skilfully, both in cross-examination and in his closing submissions. He has made points deserving of scrupulous attention.

In my judgment, however, the authenticity of the letters of 26 June and 30 June has been established. I accept also that the content of those two letters was, for the most part, accurate. I find that Mr Theedom did breach his contract by disclosing confidential information to Amie Parrish, by telling Zoe Crutchley that Mr Avis was close to reaching a deal with Carter Design, and by telling Ms Crutchley that Mr Smith of Biffa was recruiting. I am also satisfied that, in breach of contract, Mr Theedom passed information to Ms Kirszak about Summit’s approach to CSP; that he agreed to tell Ms Kirszak if F1 contacted CSP; and that he did tell her when F1 did so. These breaches are sufficient to prove the substantial truth of the first element of the imputation.

I do not accept that Mr Theedom resigned on 26 June. I find that Mr Purviss dismissed him for gross misconduct on the morning of 27 June, and that he was justified in doing so. Mr Purviss had seen, by looking at Mr Theedom’s phone, clear documentary evidence of disloyalty by leaking confidential information about Carter Design to Ms Crutchley and a willingness to leak confidential information about F1 to Ms Kirszak. That was enough to justify dismissal. Mr Purviss also had strong evidence that Mr Theedom had (as I find he had) in fact leaked information about F1 to Ms Kirszak, and information about Biffa to Ms Crutchley. Although Mr Purviss did not know it at the time, the company was also in possession of strong documentary evidence of a fifth leak, the first in time: the passing of a phone number by Mr Theedom to Amie Parrish in April 2014. The second element of the imputation is therefore substantially true.

Having considered with care the issue of whether such conduct gives reasonable grounds for suspecting Mr Theedom of committing criminal offences I have concluded that there were reasonable grounds for suspecting him of offences contrary to s 1 and 4 of the Fraud Act 2006. In consequence, I find that the imputation found by Judge Moloney has been shown to be substantially true, in all three of its elements.

I do not propose to address every one of the arguments advanced at the trial, but only to identify the main grounds of my decision, and how I have arrived at them. In reaching these conclusions I have had regard to the whole of the evidence, including not only the documents but also my assessment of each of the witnesses.

As to these, Mr Theedom was a hasty witness who tended to fall over himself in answering a question. He did not, in my assessment, show a careful approach to the truth. Ms Kirszak presented as somewhat sullen, and not very open in her answers – though she was candid in her admissions of her resentment at CSP’s approach to her breaches of covenant. Ms Crutchley was ill-prepared, disconcerted by fairly simple questions, and unconvincing in her manner. Mr Purviss was measured and persuasive. Mr Sewell appeared objective and well-prepared, with a detailed knowledge of the facts. It is easy to see, in a general sense, that the two witnesses who remain on the CSP staff (Mr Avis and Ms Cowling) have a motive to go along with a mendacious case, but they did not strike me as likely conspirators. Sue Crawford has left the company and works for Marks & Spencer. She had no need or reason to get involved in a conspiracy. She appeared frank and untroubled by any concerns about consequences flowing from what she said. The two witnesses from CSP clients, Mr Smith (Biffa) and Mr Dhutia (BI) gave evidence despite having reasons not to get involved, and appeared reliable.

The Amie Parrish exchange. It is perfectly clear that Ms Parrish was asking Mr Theedom to provide her with a mobile phone number to enable her to get past the “gate woman” and obtain business from Armstrong.The key question is whether it is right to infer that Mr Theedom gave her what she wanted or, as he suggests, refused to do so. I reject his evidence on this point and do draw the inference.

The exchange of 4 April ([34](5)-(7) above) has to be read in the context of what was said on 2 April ([34](1)-(4)). The earlier exchangeshows Mr Theedom complaining about CSP and discussing plans to leave the company. It shows him doing so the very day after his former colleague, then friend and soon-to-be partner Ms Kirszak had resentfully signed undertakings not to compete with CSP for the next four months, thereby significantly curtailing her earning power. The evidence that both Mr Theedom and Ms Kirszak gave that they had not discussed her dealings with CSP over these issues is simply not credible.

Nor is it credible that Mr Theedom was merely engaging in banter with Ms Parrish. He was indeed low-paid, and he was having some success in his sales. I find it entirely plausible that he, like Ms Kirszak, was feeling resentful towards CSP at the time. It is clearly a legitimate reading of what he said to Ms Parrish on 4 April that he was suggesting they go “off-line” to discuss the provision of a mobile phone number for Armstrong, because his LinkedIn messages were being monitored by Mr Sewell. True, as Mr Bennett points out, he was making this suggestion in an exchange which was itself visible to Mr Sewell. But I do not accept his evidence, or Mr Bennett’s submission, that Mr Theedom’s words to Ms Parrish “it cant be that hard finding a few phone numbers” meant what they said. They were accompanied by the word “haha” and Mr Theedom’s own evidence (which I accept) is that finding a mobile number for a decision-maker is the hardest part of the sales job. The probability is that Mr Theedom did what Ms Parrish asked him to do.

Carter Design. Mr Avis was justified in being suspicious at the time. The undisputed facts, as he knew them, give rise to reasonable grounds for suspicion that someone had diverted a CSP business prospect in the direction of Molloy & Flynn. Mr Theedom was an obvious suspect. Further, Ms Crutchley’s evidence on this and other issues was thoroughly unsatisfactory. Ms Wilson aptly described it as “mangled”. Ms Crutchley had cultivated Carter Design as a client. It was put to her that she would have been resentful if Mr Avis had come in and made commission on the back of her work. She denied it, but implausibly. Further, Ms Crutchley was a close friend of Mr Theedom’s girlfriend. She and Ms Kirszak both suggested that she had no real friendship with Mr Theedom; it was a friendship between women. There may be some truth in that, but I find that they exaggerated the distance and separation between Mr Theedom and Ms Crutchley.

Still, I am not sure that I would necessarily have accepted that the suspicion that Mr Avis entertained was justified, but for two pieces of evidence. The first is Mr Purviss’s evidence of what he saw on Mr Theedom’s phone on 27 June 2014. In the light of that evidence, which I do accept, my conclusion is that Mr Theedom passed on to Ms Crutchley information about the recruitment needs of Carter Design which he had gleaned in the course of his employment by CSP. That information probably came from discussions witnessed, and/or postings seen by Mr Theedom on the whiteboard, in the Technical and Engineering Office.

The second piece of evidence that supports these conclusions is the 27 May email forward from Mr Avis’s email address to Mr Theedom. I find that in all probability that forwarding was done by Mr Theedom himself. There is obvious force in Mr Theedom’s argument that this would have been a risky manoeuvre to undertake in an open-plan office. But I note that it is something that could be done swiftly, and that it was done over lunchtime. And I accept Mr Avis’s evidence that he had no need or reason to send such an email himself. His email to Mr Johnson dealt with recruitment of “Technical” staff. If Mr Avis had wanted to let Mr Theedom know anything about his dealings with Carter Design it is his email to Mr Brooker about “industrial” recruitment that would have been relevant. There was, on the other hand, a clear motive for Mr Theedom to send such an email to himself, as it would provide him with written details of discussions between the client and CSP, which he could pass on to his girlfriend and/or her close friend Ms Crutchley. They were both specialists in Technical recruitment.

Biffa. The company had limited demand for temporary workers. An email of 12 August 2013 shows that Ms Crutchley had been in touch with Mick Smith of Biffa in August 2013, when she was working for CSP, and that the relationship was good at the time. Her evidence to me about her next contact with the company was thoroughly confused and unsatisfactory. But the evidence of Mr Smith satisfies me that there had been no contact of any significance between August 2013 and June 2014. Ms Crutchley had not told Mr Smith that she had left CSP in the meantime. That is why, on 23 June 2014, he used her CSP email address to notify her that he wanted to recruit temporary staff for an immediate start at the Wanlip Depot. She evidently made contact with him within an hour or so. I find her evidence as to how that came about to be incredible.

Ms Crutchley said in her witness statement that what brought about this contact was an email from Biffa to Maloy & Flynn. The email came from someone other than Mr Smith, and was sent to someone other than Ms Crutchley: a colleague called Emma. She did not identify the Biffa staff member who sent the email, or give Emma’s full name. Nor did she produce a copy of the email. As a result of the email, she said, she called Biffa. She was not trying to obtain work from them. But she was told they needed a maintenance engineer, and she filled that requirement. In all of this, she said, she had no knowledge of the email that Mr Smith had sent to CSP at around the same time. In cross-examination she dismissed with laughter the suggestion that what prompted her contact with Biffa was information from Mr Theedom about that email.

This is not a credible account. Quite apart from the absence of detail in and the lack of corroboration for Ms Crutchley’s account, it is not credible – as Mr Smith explained in his oral evidence - that someone else at Biffa sent an email to someone else of Molloy & Flynn, of the kind suggested by Ms Crutchley. Mr Smith was in charge of the site concerned. It was he who told CSP of the vacancies. There was nobody else at Biffa who would have notified those vacancies to another recruiter. Mr Smith confirmed that Ms Crutchley had called him and explored with him whether Molloy & Flynn could help with his needs. She knew what those needs were. The obvious explanation of what happened is that Mr Theedom had told her of the opportunity. He had learned of it because it became known to him as a result of working in an open plan office with the staff to whom Mr Smith’s email was automatically forwarded.

Summit. The suggestion that it was mere coincidence that Ms Kirszak arranged to meet Summit within a day or so of that company informing CSP of its need for a press-brake operator is not inherently persuasive. It is all the less so when one bears in mind the background I have recited so far, and the other evidence in the case. Ms Kirszak’s contact with Mr Frankham in late June 2014 represented a plain and obvious breach of the undertakings she had signed on 1 April. She did not dispute this, but maintained that she had believed at the time that her covenant was over. I do not find that plausible.

The giving of undertakings was a significant matter in her life, which she resented. It was memorable, and it had happened not long beforehand. She would have known when her undertakings expired. She contacted Mr Frankham in deliberate breach of her undertakings, hoping to get away with it. She is a person who was consistently prepared to take risks in that respect. The best explanation of that came in Mr Purviss’s evidence, which I accept: that Ms Kirszak was not a very good sales person. I find that in order to succeed she needed help, and that she got it from Mr Theedom. The probability is that he told her of Summit’s needs, having learned of these because they were discussed in his presence, in the Technical and Engineering office.

F1. In my judgmentMs Kirszak contacted F1 well knowing that this also represented a breach of her April 2014 undertakings. Again, she was knowingly taking a risk. But there is evidence that explains why she was willing to do so. On or about 19 and 23 June F1 had advised CSP of its need for welders. The details had gone on the Enterprise system. It was shortly after the second of those dates Ms Kirszak contacted Mr Kirkpatrick at F1. Mr Bennett is right to say that this could have been a coincidence, but that is not a likely explanation.

F1 had not needed welders since February 2014. It is more likely that Ms Kirszak had been tipped off by her partner Mr Theedom, who had access to Enterprise and sat in the same room as those at CSP who were dealing with these vacancies. Mr Theedom sought to suggest that he knew little or nothing of the Enterprise system and made little or no use of it. I do not find that likely. It may have been imperfect but it was clearly a valuable resource. Accepting as I do Mr Purviss’s evidence of what he saw on Mr Theedom’s phone on 27 June I am satisfied that the tip-off was given by prior arrangement: Mr Theedom had promised in May to alert Ms Kirszak when F1 approached CSP to recruit staff, so that she could approach F1 at a propitious moment.

The meeting of 26 June 2014. I foundMr Theedom’s evidence about this meeting unreliable. Some of it was inaccurate on his own admission. His witness statement asserted that he could not recall ever having heard of Summit when he was at CSP, and claimed he “only became aware of the company when the defendants disclosed the list of recipients of the email”. But earlier in the same statement he accepted that Mr Purviss had challenged him on 26 June 2014 with allegations of leaking information about Summit. Mr Theedom’s account of the meeting is inherently improbable in some respects. Even if, as he claims, it involved repetition it is very hard to see how such a meeting could have taken, as he says, some three hours.

The letter dated 26 June 2014 read as follows:

“Dear Sam

Further to my Investigative meeting with you today, I require you to attend a Disciplinary meeting with me at 9am on the 27^th June 2014.

During this meeting, I will address allegations that you have been:

Providing ex-employees Kate Kirzsak and Zoe Crutchley with confidential information about our business activities, as they have recently contacted or visited two of our clients, BIFFA and Summit, shortly after communications between us. If upheld, these allegations constitute gross misconduct and may result in a formal warning or dismissal.

As per Company Policy and the Employee Handbook, you are entitled to bring along an independent witness of your choosing, who may take notes but may not participate in proceedings or offer any advice or opinion, and must be a Company employee.

You are suspended on full pay until this meeting and are not required to present yourself for work beforehand.

Yours sincerely”

Mr Purviss’s evidence was that he handed this letter to Mr Theedom at the end of the meeting. It had been prepared beforehand, in case of need. It has the appearance of a standard form letter, with the details filled in to fit the particular case. The contents reflect points that, by common consent, were raised at the 26 June meeting. There is nothing inherently improbable about any of this. Nor do I accept the points made by Mr Bennett in cross-examination of Mr Purviss, that the procedure which – on the face of this letter – was being adopted was inherently implausible. In support of his case of forgery, however, Mr Theedom relies not only on his own account of what took place at the 26 June meeting but also on circumstantial evidence.

The evidence of Mr Purviss and Ms Cowling is that he gave her a copy of the 26 June letter to file, and she did so. I accept that evidence. I note also that the wording of the undertakings which Mr Theedom agrees he signed on 27 June 2014 is inconsistent with his case about the 26 June meeting. The undertakings record his “having ceased employment on 27^th June 2014”. I do not think that, on any view, these are undertakings which he signed carelessly and without reading them. On the contrary, he himself added a company to the non-exhaustive list of named CSP clients with whom he was not allowed to deal. The wording of the undertakings is of course also consistent with the defendants’ case about the meeting on 27 June: that it was a disciplinary meeting that followed up the initial discussion on 26^th.

The 27 June meeting. There is a wealth of evidence that the sequence of events on 27 June was as follows. Mr Purviss called a meeting of CSP staff at around 8am. Present were Mr Purviss, Mr Sewell, Ms Cowling, Mr Avis and Agnieszka. Mr Purviss was keen to avoid dismissing Mr Theedom if he could. He asked the staff what they thought he should do, if satisfied that Mr Theedom had leaked information. All but Mr Avis thought that he should be dismissed. Mr Avis thought he should be given another chance. Mr Purviss closed the meeting by saying that he would ask to see Mr Theedom’s phone and if he found nothing suspicious on it he would not dismiss him. He said he had not decided what he would do if Mr Theedom refused to show him his phone. The meeting with Mr Theedom then went ahead, in the way outlined above. Mr Theedom was asked to and did sign undertakings, and left. A further staff meeting took place afterwards, involving the same people as before. Mr Purviss told them he had found messages on Mr Theedom’s phone and dismissed him.

This account of things is subscribed to by four of the five people who are said to have been there: all but Agnieszka gave oral evidence to me. I accept that this is a substantially accurate account of what occurred. It is clear that Mr Purviss had a fondness for Mr Theedom, and wholly credible that he wanted to avoid dismissal if possible. That view of things is supported by contemporaneous emails from Mr Sewell to Mr Purviss, urging him not to beat himself up about the sacking. The account given by the CSP staff is entirely inconsistent with Mr Theedom’s account of what took place on 27 June. It is also inconsistent with his account of what took place in the longer of the two meetings he had with Mr Purviss. The key difference lies, of course, in what happened when Mr Purviss asked to see Mr Theedom’s phone.

Mr Theedom’s evidence is that he had good reason not to allow Mr Purviss to inspect his phone, not least because it had revealing pictures of Ms Kirszak which she had sent him, and that he refused to allow inspection. It is impossible to test this evidence independently, because Mr Theedom has changed phone, and so has Ms Kirszak, and the content is now inaccessible. The fact that Mr Theedom did this, in August 2014, is rather more troubling than Mr Purviss’s change of computer, because on any view Mr Theedom knew from no later than early July 2014 that there could be a dispute about what was seen on his phone. Email exchanges he had with Mr Purviss made that clear.

In my judgment it is improbable that Mr Purviss has invented his account of seeing messages on Mr Theedom’s phone. That is extremely unlikely if, as I find, the CSP staff have spoken truthfully about the meetings they attended before and after the 27 June disciplinary meeting.

The letter dated 30 June 2014 read as follows:

“Dear Sam

Further to our Investigative and Disciplinary meetings on the 26^th and 27^th June respectively, I write to confirm my decision to dismiss you from your position as Recruitment Consultant with immediate effect.

Our Investigative meeting on Thursday 26^th June was conducted in order to address suspicions that you were:

Providing ex-employees Kate Kirzsak and Zoe Crutchley with confidential information about our business activities, as they have recently contacted two of our clients, BIFFA and Summit, shortly after communications between us. If upheld, these allegations constitute gross misconduct and may result in a formal warning or dismissal.

Following these interim discussions I then required you to attend a Disciplinary meeting on 27^th.

During this meeting I note that you denied the allegations. However I discovered several exchanges on your personal mobile phone, which you provided to me on request, and a further Linkedin exchange on your company PC. One was with Miss Kirszak in which you clearly agreed to her request to inform her if one of our clients, F1 Manufacturing, called into the office. Miss Kirszak has subsequently contacted this client.

Another was with Miss Crutchley in which you said: “Gavin is about to close Carter Design. Get in there quick.” The bookings we received from this client were subsequently cancelled and we have received no further business from them. Another was with an ex-employee Amie Parrish on Linkedin in which you indulged her in her aim to entice our client Armstrong Logistics away from us - she has subsequently been in touch with the client, again in contravention of her contract.

During our meeting you admitted to me that these were ‘mistakes’ and ‘banter’ on your part and I took the decision to summarily dismiss you for Gross Misconduct. You have made your position with CSP untenable by passing confidential information to our competitors that could (and perhaps did) materially harm the Company and by committing serious breaches of trust.”

The reference to the LinkedIn messages is rather misleading. Mr Purviss did not learn about those until after the 27 June meeting with Mr Theedom. As Mr Bennett points out, there is no reference to this letter in the email correspondence that passed between Mr Theedom and Mr Purviss on and after 30 June. That is certainly odd. Mr Bennett has also undertaken a textual analysis, comparing this letter with an email of 3 July 2014 which was on similar lines. He submits that there are discrepancies that point to the 30 June letter having been based on the 3 July email rather than the other way round, as would be natural if they had been created in date order. One would expect the one to have been cut and pasted into the other. Moreover, Mr Bennett submits, it is improbable and inconsistent with previous practice that Mr Purviss would have sent such a letter by post, rather than by email, or by both post and email.

These are all proper points. In the end, however, I find the case of forgery an improbable one. Leaving aside the mention of the LinkedIn message, the letter is consistent with the evidence of the CSP staff about the meetings they attended. Reference to the LinkedIn message is understandable, as Mr Purviss had come to know of it by about midday on Friday 27^th, and it was clearly significant. The textual oddities are no more than that, in my view. The absence of reference to the letter in the emails of 30 June is explicable on the basis that the letter had not reached Mr Theedom by then. Mr Purviss explained the use of post rather than email for a dismissal letter as a practice based on his training in previous employment. Importantly, Ms Cowling gave evidence that she had been given this letter to post to Mr Theedom, and that she had done so, having read it before doing so. She was quite unshaken in cross-examination.

In reaching my conclusions I have examined with care the email correspondence which began with an email from Mr Theedom at 11:38 on 30 June, asking “Karl what is this? Criminal action? Passing leads on for 3 months….” I do not consider that the correspondence helps to resolve in Mr Theedom’s favour the conflict between the parties’ rival versions of what took place on 26 and 27 June, or the issue over the authenticity of the letters of 26 and 30 June. It is true that Mr Theedom asserts that “You have no evidence because I didn’t do anything”. But Mr Purviss says “I saw the texts Sam and you admitted to making a mistake in sending them”. Mr Theedom responds “I didn’t admit to anything and you didn’t see anything on my phone.” But Mr Purviss replies “It’s so disappointing to see you getting silly about me not seeing anything on your phone. It wouldn’t make any difference in court – they wouldn’t expect you to have left them on there!”

I have also borne in mind that Mr Purviss failed to keep any record of what he had seen on the phone, and his evidence about what records he did make. The earliest records now in existence are the letter of 30 June or, if that is not genuine, the email of 3 July 2014. Both contain precise accounts of the messages seen on the phone. It is inherently improbable that the wording set out in those documents was recalled with precision a minimum of 3 days after it was seen. Nobody suggests that Mr Purviss took a photo of what he saw, which would have been ideal. Initially, in cross-examination he appeared to say that he had made no record at all. When I asked him questions however he said he had made a note of the wording, which he used for the drafting of the 30 June letter and then discarded. On balance, I think this later version of events is likely to be true.

The imputation of criminality. At around lunchtime on Monday 30 June 2014, having learned of the emails complained of, Mr Purviss had a meeting and a discussion with Mr Sewell. The last nine emails were sent after that, on the Wednesday and Friday. They omitted the wording that conveyed the third element of the defamatory sting identified by Judge Moloney: the imputation that Mr Theedom’s “misconduct has been so serious that there are reasonable grounds to suspect that it also amounts to a criminal offence.” That change was no coincidence. It came about because Mr Purviss had reached the conclusion that no such suggestion should be made and at a meeting on 2 July, as he puts it, “instructed Colin to remove the reference to it within the email”.

Mr Purviss’s evidence is that he and Mr Sewell discussed this issue on Monday 30 June, and that he considered the matter over the next couple of days before reaching the conclusion that “we did not know enough about the applicable laws and I had no appetite for pursuing criminal action”. The discussion on the Monday involved consideration of whether Mr Theedom’s conduct might have amounted to “commercial espionage”, says Mr Purviss.

In my judgment it was not accurate for Mr Sewell to assert in the first 115 emails that “We are also considering whether to take criminal action against him”. He wrote this without consulting Mr Purviss, or anyone else. There had been no consideration by anyone other than him of any criminal action. His own state of mind, according to his witness statement, was that he “felt that this amounted to a form of commercial sabotage … and I believed that there were therefore potentially grounds for criminal action”.

Mr Sewell’s witness statement does not suggest that he had identified any criminal offence which might apply. He is not a lawyer, he had taken no legal advice, nor had he made plans or arrangements to take legal advice. The Amended Defence now asserts that there were grounds to suspect an offence under s 1 of the Fraud Act, but it is not suggested that this was in Mr Sewell’s mind at the time. The Amended Defence also asserts that at the time the emails were sent the company was “considering all relevant matters, including the obvious risk that the claimant had breached data protection laws.” Mr Purviss’s witness statement did not support that averment. Nor did Mr Sewell’s. Cross-examined, Mr Sewell maintained that the two did discuss the Data Protection Act. But he accepted that there had been no discussion before Monday 30 June.

There had plainly been no discussion of any form of criminal action before Monday 30 June. Mr Sewell was acting alone. I do not accept that there had been any consideration by him of criminality, other than the vague consideration he describes in his witness statement. I do not accept that he had the Data Protection Act in mind on the Friday, when he wrote the early emails, or on the Sunday evening, when he sent the bulk of the emails. The reality is that in his anger at the damage he thought Mr Theedom had done to a business he had spent years building up, he included words about criminal action without thinking about the issue in any depth or with any care.

Having said all this, the issue for decision is not of course whether the emails were literally true, or whether they were composed with due care, but whether the defendants have proved the substantial truth of the imputation they conveyed, as identified by Judge Moloney. Ms Wilson submits that if they have proved the truth of elements (a) and (b) of the meanings they have also necessarily proved the truth of element (c). This is because that element “is derivative on the above matters; it does not make any additional allegation, it is an inference drawn from the matters of fact.” On this approach, there is no material difference between the larger batch of emails and the remaining nine. I do not agree with this, which I regard as a wholly artificial approach. In my judgment Mr Bennett is right to submit that each element of the imputation colours and informs the others, but that element (c) is the most serious and damaging.

Ms Wilson submits that the defendants “do not need to prove reasonable suspicion that each element of any specific offence was satisfied” as this is a libel action, not a criminal trial. That cannot be right. It is not possible to make a finding of reasonable grounds to suspect criminality unless a specific offence is identified. Reasonable grounds for suspecting guilt of a specific offence cannot be established unless there are shown to be reasonable grounds to suspect every element. There is another aspect of Ms Wilson’s argument that I cannot accept. She relies to some extent on conduct of Mr Theedom after the publication of the words complained of. Although it is not necessary for a defendant to know all, or indeed any, of the grounds for suspicion at the time they publish it is well-established that the grounds must exist at that time. But I have concluded that there were at the time of publication reasonable grounds to suspect Mr Theedom of criminal offences.

The pleaded case of truth is that the conduct which I have found proved affords reasonable grounds to suspect an offence of fraud by abuse of position contrary to s 1 & 4 of the Fraud Act 2006. These provide, so far as material, as follows:

“1 Fraud

(1)

A person is guilty of fraudif he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2)

The sections are–

…

(c)

section 4 (fraud by abuse of position).

4 Fraud by abuse of position

(1)

A person is in breach of this section if he–

(a)

occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,

(b)

dishonestly abuses that position, and

(c)

intends, by means of the abuse of that position–

(i)

to make a gain for himself or another, or

(ii)

to cause loss to another or to expose another to a risk of loss.

(2)

A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.”

“Gain” and “loss” are defined in s 5. They extend only to gain or loss in money or other property, but they include temporary gains or losses, and extend to gain “by keeping what one has, as well as a gain by getting what one does not have”.

Mr Theedom’s position was one in which he was expected both to safeguard and not to act against the financial interests of CSP. His conduct, as I have found it to be, could reasonably be considered an “abuse” of that position. Whether or not he could be seen as intending to cause CSP loss, or to expose it to a risk of loss, he could reasonably be suspected of intending, by “abuse” of his position, to secure gains for his partner and Ms Crutchley, and/or for their employer. His conduct could reasonably found suspicion that he was acting dishonestly.

I note that the imputation is that Mr Theedom’s misconduct was “so serious” that there were reasonable grounds to suspect it was criminal. The Fraud Act offence is triable either way, and in this case it seems likely it would be tried in the Magistrates Court. But the imputation is not that the misconduct was serious enough to warrant Crown Court trial. Mr Bennett has argued that in practice Mr Theedom would not be prosecuted at all by the public authorities for this conduct. He may have a point, but the argument was not developed, and in any event the defamatory imputation is not that the misconduct was “so serious” that it would lead to public prosecution. This was misconduct which would have justified prosecution. The substantial truth of the imputation has been made out. It follows that the claim will be dismissed.

In the circumstances it is not necessary to assess the defendants’ case that there were reasonable grounds to suspect Mr Theedom of a contravention of s 55 of the Data Protection Act 1998 (“DPA”), but I will say this. The Defence alleges reasonable grounds to suspect Mr Theedom had “wrongfully disclosed personal data” contrary to s 55. The candidate offence has never been fully particularised. The relevant offence is however knowing disclosure without the consent of the data controller of personal data, or the information contained in personal data.

“Personal data” is a term defined by s 1 of the DPA. It is not clear that any of the leaks to Ms Crutchley and Ms Kirszak involved a disclosure of personal data, or the information contained in it. To say, for instance, that F1 are looking for welders would not seem to involve any such disclosure. The disclosure to Ms Parrish of a personal mobile phone number or email address would on the face of it seem to engage s 55, however. The defendants have made no attempt to identify the “data controller” for the purposes of this limb of their case, but whoever that may have been on a proper analysis it would appear that their consent to disclosure was not given.

I have said nothing so far about the defendants’ case that Mr Theedom acted in breach of his undertakings of 27 June 2014. The defendant’s factual case was admitted to some extent by Mr Theedom in his Reply and in his witness statement. He admitted contacting BI and Pallex within the 6 months after the end of his employment, and accepted that “I should not have contacted” those companies within that period. Other aspects of the defendants’ factual case were disputed by Mr Theedom. Mr Bennett then sought and, as a result of my decision above has obtained, permission to advance a case that such contacts were no breach because Mr Theedom was released from his contractual restrictions by CSP’s repudiation of its own obligations, and his acceptance of that repudiation.

All these issues arose because, and only because, of the way the defendants pleaded their case in mitigation of damages. The fact that I have found for the defendants on liability means that it is unnecessary for me to reach conclusions on these issues. But I had reached the conclusion that none of it would have had any bearing on the outcome of the case in any event.

The matters relied on are instances of post-publication misconduct, not capable in themselves of proving the truth of the imputation. I can see that it might have been argued that this was “bad character” evidence, with some probative value in relation to the case of truth. But that is not how the defendants have put their case at any stage. As for the way they did put their case, I cannot see how such matters could properly serve to mitigate damages. The argument that they are “directly relevant background context” within the scope of Burstein seems to me untenable.

In response to my suggestion that it was hard to see how post-publication conduct could mitigate, Ms Wilson directed me to a passage in Warren v The Random House Group [2008] EWCA Civ 834, [2009] QB 600. The claim in that case related to a book published in 2006. One of the libels complained of in that case was “the Phillips allegation”. It related to a January 2003 contract for the boxer Vince Phillips to fight Ricky Hatton. The allegation was to the effect that the claimant, a manager and promoter, had conned Phillips into accepting a pitiful fee for putting his life at risk in that fight, by giving him a false and dishonest explanation for the low fee. One issue that arose was whether in mitigation of damages the defendants could rely on things allegedly done by the claimant on the day of the fight, 5 April 2003. The passage relied on by Ms Wilson appears at [86] where Sir Anthony Clarke MR, giving the judgment of the court, observed:

“We would not suggest that the word ‘background’ in the encapsulation of the Burstein principle necessarily confines admissibility to material relating to events prior to, or circumstances that obtained at the time of, the negotiations referable to the contract in January 2003.”

These were obiter observations; the court upheld the judge’s decision that facts about the claimant’s conduct in April 2003 were inadmissible. But the point is that these observations refer to a point in time some 3 years before publication. They are a far cry from a decision that damages can be mitigated by proof of specific acts of post-publication misconduct, different from the misconduct imputed by the libel. As the court observed in an earlier passage in the same judgment (at [79]): “There is no substitute for examination in each case of whether the material qualifies as background context directly relevant to the assessment of the damage sustained by the claimant as a result of the publication…” (my emphasis). It is hard to see a logical connection between that issue and the facts alleged by the defendants in mitigation of damages in this case.

At the end of his judgment on the preliminary issues in this case, at paragraph [31], HHJ Moloney QC expressed concern at the risk of costly preliminary issue trials on “serious harm” becoming the norm. I respectfully agree that the court must be alert to the costs risks. Individual claimants faced with what they see as unmeritorious applications for preliminary issue trials of this kind might seek summary judgment on the issue, as Judge Moloney suggested. Cases that fall within s 1(2) of the Act may call for different treatment: see Undre v Harrow LBC [2016] EWHC 931 (QB) at [77]-[79]. There are other risks of excessive costs, however. It is not clear, either, that many cases have gone the way of this one, with a “serious harm” trial followed by a full trial on the merits. The best solution to the risks involved may be the introduction of early costs budgeting.