Case No. HC07C02914

47. As I said above most of the detail of the Claimant’s complaints against them is not disputed. The Defendants’ stance is that none of the material that they created or used or retained at the end of their employment contains any confidential information. Their case is that all of the material is available in the public domain.48. Further the Defendants contend that all of the material is part of their own gathered knowledge acquired over the course of their employment which they are free to use (it being their own expertise and knowledge) after the termination and that the Claimant cannot prevent an ex-employee (absent a restrictive covenant) from using his own gathered knowledge and experience when he leaves the employment.49. As regards the acts done during the course of their employment whilst they were working out their notice the Defendants contend that none of the acts were wrongful. All of the acts were done in anticipation of setting up a business and operating that business after expiry of their notice. The Defendants contend they are perfectly entitled to organise a state of affairs whilst working out their notice so as to set up a business which will compete with the employers business but only do so after the termination.50. Although they have admitted retaining a large amount of documents that belonged to the Claimant and returned them they contend that they had no obligation to return them and have not used the information contained in the documents in any substantial way. EVIDENCE 51. The Claimant’s main witness Mr Worrall was shown to be inaccurate in his evidence. First he wrongly maintained that the Claimant had a number of exclusive deals with suppliers and agents when plainly it did not. Second he repeatedly asserted that the Claimant’s main product Alaska had been copied by the Defendants when selling another product manufactured by the same manufacturer known as Typhon. His statement that Typhon was a direct copy overstates the case. 52. In relation to the Alaska product he alleged it was the Claimant’s top seller and identified the sales as variously as £3,000,000, £2,000,000, and £500,000. It became clear that the second witness statement (paragraph 36) was misleading as regards Alaska’s sales. In the body of the witness statement he referred to a schedule of sales over the last few years. The paragraph stressed that the figures were trade prices and the actual retail prices were significantly higher. The actual exhibit (page 672) suggested purchases of Alaska at £2,106,417 and onward sales of £2,851,835. In paragraph 7 of his first witness statement he suggested that Alaska made sales of approximately £3,000,000 of the Claimant’s turnover. The significance of Alaska will appear later in this judgment. Not only is it the Claimant’s largest product it is supplied by an Italian company named Para. When cross examined on this paragraph he admitted that the figure of £3,000,000 was wrong and agreed with the Defendants’ put figure of £542,000. He confessed therefore to an overstatement of the amount by a factor of 6. The figures exhibited at paragraph 36 of his witness statement suggest a turnover of £2,800,000. His recollection as to how that exhibit came to be formulated was plainly defective. In cross examination he thought that the schedule was based on volume and not price. Mr Maynard in his second witness statement dated 7th November 2007 explained how this document came to be created. It is plain that the text of the witness statement as drafted by Mr Maynard for Mr Worrall does not reflect what the exhibit shows. This is casual behaviour but I do not think it deceptive. 53. There is no doubt that Alaska is the Claimant’s leading product and that is the issue. As set out above the Defendants prepared a Sales Forecast for Concept based on the Claimant’s Alaska sales. Thus whilst Mr Worrall plainly was the subject of justified criticism for his inaccurate evidence there is no doubt that Alaska is a key product for the Claimant and that the Defendants not only knew that but also expected it to be used as the basis for Concept’s business in its first years of trading. Typhon was not identical but it was similar and the Defendants saw it as a rival to Alaska.54. The Defendants were critical of this shambles and rightly so. However I do not think it takes the matter any further in the sense that I do not believe an attempt was made to mislead. It shows that Mr Worrall can be casual both in his substantive evidence and the evidence he gave in cross examination. He was plainly wrong when he explained how the exhibit to his second witness statement came to be created and he was plainly wrong in my view to accept without question the figure of £542,000 put to him in cross examination. The significance is not really of the description that Mr Worrall gives to it; it is on what the Defendants attribute to it. Confidential document number 5 was created by the Defendant using the Claimant’s Alaska and Penshurst sales (Mr Worrall paragraph 24). The evidence shows Mr Rider created this on the Claimant’s computer at 8.06 hours on 20th April 2007. Its purpose is plain to me. It is a projection of the likely sales that Concept can make by reference to the Claimant’s lead products by reference to the sales of those products by customer that the Claimant makes. This was created whilst Mr Rider was working out his notice and at a time when the Claimant believed he was still going into the Housing Sector. He changed his story 6 days after this document was prepared.