Case No. HC07C02914

Ltd v Ellis [1987] ICR 464 C.A. at page 474F Nourse LJ said as follows:- “Although reference is frequently made to the judgment of Maugham L.J. in Wessex Dairies Ltd . v . Smith [1935] 2 K.B. 80, 89, the decision which established the general rule about lists of customers was that of this court in Robb v . Green [1895] 2 Q.B. 315, affirming the very elaborate and illuminating judgment of Hawkins J. [1895] 2 Q.B. 1, as Greer L.J. described it in Wessex Dairies Ltd . v . Smith [1935] 2 K.B. 80, 85. Mr. Fitzgerald sought to avoid the application of the rule to the present case by relying on the evidence already quoted from paragraph 16 of the first defendant's second affidavit, which is to the effect that he only used the card index for the purpose of looking up the addresses, freely available elsewhere, of people who were already known to him personally. I will only say that that evidence falls short of convincing me that that would be found at trial to have been the first defendant's only use of material which, on his own evidence, was prepared at his request nearly five years after he joined the plaintiffs and only some two months before he gave in his notice. Be that as it may, and even allowing for some differences of fact between the two cases, I think that Mr. Fitzgerald's submission is effectively disposed of by a passage in the judgment of Hawkins J. in Robb v . Green [1895] 2 Q.B. 1, 18-19. The value of the card index to the defendants was that it contained a ready and finite compilation of the names and addresses of those who had brought or might bring business to the plaintiffs and who might bring business to them. Most of the cards carried the name or names of particular individuals to be contacted. While I recognise that it would have been possible for the first defendant to contact some, perhaps many, of the people concerned without using the card index, I am far from convinced that he would have been able to contact anywhere near all of those whom he did contact between February and April 1985. Having made deliberate and unlawful use of the plaintiffs' property, he cannot complain if he finds that the eye of the law is unable to distinguish between those whom, had he so chosen, he could have contacted lawfully and those whom he could not. In my judgment it is of the highest importance that the principle of Robb v . Green [1895] 2 Q.B. 315 which, let it be said, is one of no more than fair and honourable dealing, should be steadfastly maintained.” 110. In my view this is precisely what the Defendants have done. I have already observed that there is no legitimate reason for them to divert to Concept and retain the vast amount of material and documents that clearly belonged to the Claimant. I accept the Defendants’ contention that it is important to distinguish between information on pieces of paper and the pieces of per themselves. The Claimant is plainly entitled to delivery up of their pieces of paper and any copies of them. 111. Whether they are entitled to an injunction restraining the Defendants from using some or all of the information on pieces of paper is an entirely different matter. I reject the submission by the Defendants that such is not included in the prayer for relief. It is to be found in paragraph 2 (ii) and the Claimant’s application for interim relief which initially came before me. Equally the Claimant is entitled to delivery up of all copies of documents containing the same material. 112. The Defendants have failed to persuade me that none of this vast array of material was of any use to them. It is an unattractive plea. If it was of such little use I cannot understand why it was taken or retained. If they had wished to use the material in the public domain and in their own heads that would not have been actionable. What the Defendants have done is shortcut that exercise in the same way in which the Defendants did in the Bullivant case. In other words they have sought to take an illegitimate step and provide themselves with a springboard so that their business is up and running