Hydra Plc & Ors v Anastasi & Ors, Court of Appeal - Queen's Bench Division, July 20, 2005, [2005] EWHC 1559 (QB)

Reporting Judge: [2005] EWHC 1559 (QB)

President: Hydra Plc & Ors v Anastasi & Ors

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Hydra Plc & Ors v Anastasi & Ors, Court of Appeal - Queen's Bench Division, July 20, 2005, [2005] EWHC 1559 (QB)

Case No: HQ 05 X 00311

Neutral Citation Number: [2005] EWHC 1559 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

The Queen Elizabeth 11 Law Courts

Derby Square

Liverpool L2 1XA

Date: 20th July 2005

Before :

THE HONOURABLE MR JUSTICE ROYCE

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Between :

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Mr Jeffrey Bacon (instructed by Ince and Company) for the Claimants

Mr Daniel Barnett (instructed by Messrs. Turbervilles) for the Defendants

Hearing dates: 10,11,12,16,17,18,19,20 AND 23 MAY 2005

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Judgment

Mr Justice Royce :

INTRODUCTION.

1. Sometimes when businessmen fall out it is a straightforward parting of the ways. In this case men who have for some time worked in harmony now feel great bitterness. The litigation process has not helped. Feelings on both sides run high.

2. The First Claimant (Hydra) is a reseller in the data networking, internet performance and security markets. Among the products it sells are those designed and manufactured by a Californian company - Redline Networks Inc. (Redline).

3. Mark O'Hara is Managing Director of Hydra. The Company was formed in 1997. Martin Anastasi started work for Hydra at that time. He remained an employee until April 2003. He then set up Tomax Solutions LLP (Tomax) which supplied his services to Hydra. In August 2004 Mr O'Hara decided he no longer wanted Mr Anastasi's services. Those services ceased on 30th September 2004 pursuant to a Compromise Agreement of 21st September.

4. Keith Marsh started work with Hydra as a salesman in 1998. He left in about 2000 to work for Cisco Systems Inc. for about 6 months but returned in June 2001and remained employed by Hydra until 23 December 2004. He left to join Mr Anastasi at Tomax.

5. The principal allegations made by Hydra are that Mr Anastasi and Tomax are in breach of terms of the Compromise Agreement; that Mr Marsh is in breach of restrictive covenants in his contract of employment; and that he is in breach of implied terms and/or fiduciary duties. Mr Marsh admits certain comparatively minor breaches.

Hydra maintains that Mr Anastasi wrongly solicited or enticed Mr Marsh to leave and that Tomax is wrongly poaching Hydra's customers. It is contended that Hydra has suffered and continues to suffer very substantial losses in consequence. That is all very much in dispute.

6. I have heard a good deal of evidence but a striking feature has been the absence of any evidence from any of Hydra's many customers about any attempt to poach them. Furthermore Mr O'Hara has refused the request from the Defendant's solicitors for his consent to the customers being asked to say whether they had been approached or not.

THE PRINCIPAL PLAYERS.

7. (a) Mr O'Hara.

He was clearly an able, hard and determined man. He was though prone to make very serious allegations without any evidence not just against the Defendants but against perfectly respectable third parties. Many of these allegations were entirely groundless and having caused considerable upset to third parties were withdrawn during the course of the case. Parts of his evidence I found reliable but other parts were wholly unconvincing. I had serious concerns about his credibility for example when he failed to disclose an order for £213,000.00 which would have substantially reduced his loss of profit claim. He then said ``I would have disclosed it at the end of the trial''. That did not sit at all comfortably with his disclosure of earlier smaller orders. Part of his account of a meeting of 6th January 2005 I concluded must be an invention.

(b) Mr Anastasi.

An able but rather laid back individual. There was an initial lack of frankness (as with Mr Marsh) displayed in the earlier solicitors' correspondence which was not to his credit. On the whole, however, he came across as a reasonably reliable witness.

A good deal younger and less experienced than Mr O'Hara or Mr Anastasi. Enthusiastic, somewhat naïve, and deeply embarrassed by what he readily admitted were some extremely foolish acts towards the end of ...

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