Case No. IP-2018-000134

45.A point made on behalf of TCL and Messrs La Gette and Bishop was that Trailfinders was attempting to argue issues which fell outside those pleaded and outside the list of issues agreed by the parties and approved at the CMC. 46.It is a feature of this court that the parties are each required to think through their case sufficiently by the time of the CMC such that all issues they wish to raise are clearly pleaded and thereby find their way into the list of issues identified at the CMC. The rules make it difficult to submit any material at trial in support of any other issue (see CPR Part 63.23(1) and (2)) with the consequence that, in effect, parties cannot stray outside those issues. It discourages costly additional applications and consequential steps in the litigation should further arguments from time to time come to the mind of any party. Requiring the parties to put all their cards on the table by the time of the CMC may also assist in promoting settlement. 47.This does not mean that the issues identified at the CMC are forever fixed in stone. It may be that proposed amendments to the pleadings after the CMC are agreed between the parties; if the parties are content to have further issues aired and resolved at trial, the amendments will probably be allowed. Unforeseen matters may emerge after the CMC which justify amendments to a party’s case even if the amendments are resisted. It is also frequently the case that some of the issues identified at the CMC have fallen away by the time of the trial. 48.However, where there is a dispute at trial as to whether an issue has been raised on the pleadings, there will be a presumption that the pleadings and answers to Part 18 Requests are to be read consistently with the list of issues settled at the CMC (subject to amendment of the pleadings after the CMC). Rule 63.23(1) and (2) cannot be circumvented by a creative interpretation of the pleadings or by answers given to Part 18 Requests. 49.At the start of the trial Mr Mill identified arguments which, he said, were being advanced in the Trailfinders’ skeleton but which had no basis in their pleaded case or in the list of issues settled at the CMC. Class 3 confidential information 50.Trailfinders’ skeleton contained an argument by way of an alternative to its allegation of misuse of class 2 information, namely that the confidential information fell within class 3. Mr Mill pointed out that this had not been pleaded. Mr Mansfield very properly disavowed the argument in opening, together with the corresponding part of his skeleton argument. Duty of good faith and fidelity 51.Mr Mill further submitted that Trailfinders was not only saying that the individual defendants were in breach of their duty of good faith insofar as it led to an implied obligation not to disclose class 2 confidential information, but sought now to run a wider argument, alleging a breach of the duty of good faith and fidelity in its broader sense, not tied to any misuse of confidential information. 52.In September 2019 Trailfinders applied to re-amend its Particulars of Claim. By an Order dated 2 October 2019 I allowed agreed re-amendments, but refused permission to make other re-amendments, including an allegation of a breach by the defendants of their duty of good faith and fidelity in the broader sense. 53.The duty of good faith as pleaded by Trailfinders consequently refers only to that part which implies an obligation not to misuse or disclose confidential information. At least by the time of closing argument I did not understand Mr Mansfield to put his case any more widely than that. Breach by the former employee defendants of the express terms of their contracts 54.Trailfinders’ skeleton, unlike the Re-Amended Particulars of Claim, quoted express terms of the contracts of employment of Mr La Gette and Mr Bishop. TCL saw this as an unpleaded attempt to make an allegation of breach of those express terms. Mr Mansfield told me that the express terms were relied on solely to identify whether the relevant material – that said to have been unlawfully disclosed – was confidential. There was no argument at trial based on an alleged breach of any express term. Vicarious liability of TCL if Mr La Gette and Mr Bishop were not employees 55.An argument undoubtedly pleaded by Trailfinders was that TCL was vicariously liable for the acts in breach of confidence done by its employees. The defendants denied that any of the individual defendants was ever an employee of TCL. 56.Trailfinders’ skeleton also raised an extended argument, namely that vicarious liability was incurred by TCL even if the other defendants were not employees. The judgment of the Supreme Court in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1 was cited. Mr Mansfield submitted that the argument was soundly based on Trailfinders’ pleaded case, relying on paragraph 53 of the Re-Amended Particulars of Claim. That paragraph said: “53. In the further alternative, it formed part of the contractual relationship between TCL and each of the Former Employees that each of the Former Employees should acquire data, put that data into TCL’s systems, and utilise that data for the benefit of TCL’s business. In acquiring that data, providing it and utilising it, each of the Former Employees was acting as agent for TCL and accordingly the knowledge of each of the Former Employees as to how that data was obtained is attributable to TCL for the purposes of paragraph 21 above.” 57.Like the defendants, I read that paragraph as an allegation that the Former Employees (the title there given to them has some significance) were agents of TCL. 58.The list of issues agreed at the CMC did not raise the question whether TCL was vicariously liable if the other defendants were neither employees nor agents. Allowing Trailfinders to run the point would have visited a significant unfairness on the defendants who neither filed evidence nor prepared their case to deal with it. I therefore do not allow the argument. Mr Bishop’s Contact Book 59.An issue in dispute is what, if any, confidential information was taken from Trailfinders by its former employees. In the course of disclosure and evidence Mr Bishop revealed that he had kept what came to be referred to as his ‘contact book’ which contains the names, contact details and booking reference numbers of 136 customers. 60.Paragraph 23 of the Re-Amended Particulars of Claim makes the allegation that Mr Bishop and the other former employees used and/or disclosed Trailfinders’ confidential information. It continues: “Trailfinders is not presently aware of the full extent of the Former Employees’ acts of breach of confidence and reserves the right to give further particulars following disclosure and/or evidence in this action or its own further investigations.” 61.Mr Mill submitted that once the contact book came to the knowledge of Trailfinders, reliance on it should have been expressly pleaded, as foreshadowed in paragraph 23. There was no such amendment so Trailfinders could not rely on it. 62.I disagree. It is true that in this court the parties must set out concisely in their pleadings all the facts and arguments on which they intend to rely at trial, see rule 63.20(1). This does not require each party to list exhaustively all the evidence on which it will rely, amending their pleading every time something new comes to light. An important guideline is whether reliance on evidence or an argument is likely to come as a surprise to an opposing party if it is not pleaded (see the IPEC Guide, July 2019, para. 4.5(a)). 63.I have no doubt that Mr Bishop’s contact book was disclosed because he and his legal team were conducting this litigation in a correct manner and with every expectation that Trailfinders would rely on the contact book in support of its case. In my view Trailfinders is entitled to do so.