Capita Plc & Anor v Darch & Ors, Court of Appeal - Chancery Division, June 12, 2017, [2017] EWHC 1401 (Ch)

Resolution Date:June 12, 2017
Issuing Organization:Chancery Division
Actores:Capita Plc & Anor v Darch & Ors

Case No: HC-2017-001080

Neutral Citation Number: [2017] EWHC 1401 (Ch)



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12 June 2017



(sitting as a Deputy Judge of the Chancery Division)

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Chris Quinn (instructed by DWF LLP) for the Claimants

Simon Devonshire QC (instructed by Abbiss Cadres LLP) for the First Defendant and the Fourth to Eighth Defendants

Richard Leiper QC (instructed by Stephenson Harwood LLP) for the Second Defendant

Daniel Tatton Brown QC (instructed by Ashfords LLP) for the Third Defendant

Written submissions: 2 June 2017

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  1. I shall adopt the same terminology as in the judgment that I handed down on 26 May 2017 (``the Judgment''). Following that hand down, Mr Quinn sought permission to appeal on behalf of Capita. The Defendants did not oppose Mr Quinn being given until 2 June 2017 to set out the proposed Grounds of Appeal in writing, which he did. The Defendants were permitted to lodge written submissions in answer, if so advised, by 7 June 2017. However, they elected not to do so, and chose instead to rely on the contents of the Judgment. This is my ruling on Capita's application for permission to appeal.

  2. Capita contends that permission to appeal should be given on both of the grounds set out in CPR 52.3(6), namely (a) that the appeal has a real prospect of success and (b) that there is some other compelling reason why the appeal should be heard. However, the second ground is mainly, if not exclusively, relevant in respect of my ruling on the order for delivery up of emails that was sought by paragraph 3 of the draft Order. This aspect of the Judgment is said by Mr Quinn to ``raise points of such importance in the employment dispute area'' that there is a compelling reason for the grant of permission.

  3. The determination of Capita's application for interim relief, and also my rulings on costs, involved multi-factorial questions, and the exercise of judicial discretion. Accordingly, this is not only a case in which ``the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible'' (see G v G (Minors: Custody Appeal) [1985] 1 WLR 647, Lord Fraser at 652), but it is also, in my opinion, a case in which Capita may find it particularly hard to make out good grounds for interference.

  4. In addition, and subject always (in the case of at least some relief) to the appeal being expedited, it seems to me that the rights and wrongs of my exercise of discretion will be substantially, if not entirely, overtaken by events:

    (1) The prohibition contained in paragraph 1 of the draft Order against destroying Listed Items and so forth would still, in principle, be capable of serving some useful purpose. However, if (contrary to my findings) Capita has good grounds for saying that such a negative injunction is appropriate, by the time that any appeal is heard, either the harm will already have been done (such that an injunction would serve no purpose) or else the harm will not have been done in spite of the fact that there is no injunction restraining it (such that it will be hard to explain why an injunction is needed).

    (2) The mandatory injunction for delivery up of Listed Items contained in paragraph 2 of the draft Order is largely, if not entirely, concerned with recovery of documents. However, by the time that any appeal is heard, standard disclosure will have taken place and (on the assumption, which may be generous to Capita, that the relief claimed in the Particulars of Claim is wide enough to cover delivery up of documents without any limit as to their time of creation) Capita will have been able to inspect any such documents that the Defendants may have; and even if the Defendants had such documents and Capita had recovered the same pursuant to a mandatory injunction, Capita would have had to make copies available to the Defendants (albeit solely for the purposes of defending Capita's claims), so that the Defendants would have sight of those documents going forward even if an injunction was ordered on an appeal.

    (3) The like considerations apply to the emails which form the subject of paragraphs 3 and 4 of the draft Order: by the time any appeal is heard, the Defendants will have disclosed and provided inspection of any such emails; and even if the Defendants had forwarded such emails to Capita pursuant to a mandatory injunction, Capita would have to make copies available to the Defendants for purposes of defending Capita's claims.

    (4) In principle, the negative injunction relating to misuse of confidential information that is sought by paragraph 5 of the draft Order could be ordered by the Court of Appeal, but the like considerations apply to this as to the prohibition contained in paragraph 1 of the draft Order against destroying Listed Items.

    (5) Finally, all the remaining negative injunctions which are contested by the Defendants expire on dates between 30 June 2017 and 3 August 2017, and, unless the appeal is expedited, these dates will have passed before any appeal is heard.

    (6) Accordingly, and as no application for expedition has been intimated, it seems to me that it is likely that in substance the proposed appeal would be about costs.

    Paragraph 1 of the draft Order

  5. My reasons for declining to order that: ``The Defendants are not to destroy, tamper with or (save as set out below) part with possession, custody or control of the Listed Items'' are set out in [27]-[31] of the Judgment. According to the draft Grounds of Appeal, Capita wants to argue on appeal that this decision was wrong for the following reasons:

    (1) The evidence before me gave rise to serious issues to be tried as to ``wide-ranging and protracted wrongdoing on the part of the Defendants'' (see Judgment, [18]). This included evidence that Mr Dineen had double-deleted all his work emails upon his departure and that Mr Chalmers and Mr Tailor had forwarded emails containing Capita's confidential information to their personal email addresses, and that Mr Chalmers had then forwarded certain of these emails to Mr Turner. Moreover, the wrongdoing alleged in this case includes a conspiracy, and Archus (which is alleged to have been the vehicle for the conspiracy) admitted that some of Capita's material ``had somehow made its way on to one of its computers''.

    (2) The Defendants had given me no reason to accept them ``at their word''. Indeed, only Mr Short put in any evidence in response to Capita's allegations, and it is Capita's case that this evidence did not deal with the allegations of conspiracy.

    (3) The Order sought was ``entirely unobjectionable''.

    (4) I was wrong to rely on Caterpillar Logistics Services (UK) Ltd v de Crean [2012] EWCA Civ 156, [2012] ICR 981 per Stanley Burnton LJ at [67], because the Court of Appeal in that case was not considering an Order ``even remotely of the type being sought here'' and/or was not considering a case in which the applicants had established serious issues to be tried which were comparable to those established by Capita in the present case.

    (5) At [4]-[10] of the Judgment, I unfairly criticised Capita for the manner in which they brought the application with notice. Having done that, I was wrong to rely upon Capita's failure to apply for relief in terms of paragraph 1 of the draft Order on an urgent, without notice, basis, as a ground for refusing that relief.

    (6) I ``erred in law in finding that [Capita] had not met the threshold for this part of the application as against all the [Defendants]''.

  6. In my judgment, all of these points lack validity for the following reasons:

    (1) The quote from [18] of the Judgment is correct, and (as appears from [17], [34], [36] and [43]) I had well in mind the evidence relating to Mr Dineen's deletion of emails, the forwarding of emails by Mr Chalmers and Mr Tailor to their personal email addresses, that Mr Chalmers had forwarded an emails or emails to Mr Turner, and that 4 emails had been sent to a computer belonging to Archus.

    (2) I did not base my finding that Capita had failed to demonstrate that it would be appropriate to grant an injunction in the terms of paragraph 1 of the draft Order on taking the Defendants ``at their word''. Rather, I based it on the fact that Capita had failed to establish any actual or threatened destruction, interference with, or disposal of any ``Listed Items'' on the part of those Defendants who resisted this relief. That was a finding that was open to me on the evidence. See [30]-[31] of the Judgment. An allegation of conspiracy is not necessarily sufficient, in my judgment, to entitle an applicant who is able to establish that one respondent has a propensity to destroy evidence to say that other respondents have or may have a similar propensity. Indeed, if only one individual has deleted work emails while others have not, that tends to suggest that others may have different proclivities.

    (3) Whether an injunction is ``entirely unobjectionable'' is not the correct test. On the contrary, an injunction should not be granted unless there is a proper basis for it.

    (4) The proposition that I extracted from Caterpillar Logistics Services (UK) Ltd v de Crean [2012] EWCA Civ 156, [2012] ICR 981 is that an injunction can properly be refused where (as I considered to be true in the present case) an employer has not established any arguable case that a former employee has broken or intends to break or even that there is a real risk that the employee will break the terms of an obligation owed to the employer...

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