Case No. IP-2018-000134

91.Mr La Gette resigned from Trailfinders on 30 September 2016. About 6 weeks earlier, on 16 August 2016, he discussed his proposed move from Trailfinders to TCL in a phone conversation with Cathy Oldfield, an employee of TCL. I was shown a transcript and given an audio copy of the conversation. Several sections of the conversation were drawn to my attention, with one passage on which Trailfinders particularly relied. Here Mr La Gette and Ms Oldfield discussed the date on which Mr La Gette should hand in his notice to Trailfinders and details of his transfer to TCL. He said: “I mean, I’ve been, I’m a good, decent person, I promise you, but I’ve been taking what I need to take at the moment. I’ve got my, I’m only interested in my clients, I’m not tapping up other people but I’ve got my details and I’ve been keeping email trails clear and stuff cos I’m aware they may be looking. It’s all so exciting. It’s like being a spy. [Ms Oldfield laughs and Mr La Gette continues:] I feel dreadful, you know, I do not like it. And I’m not, I’m not going to, people get to know me over time and I’m not saying, you know, I’m perfect this, perfect that but I just, it does feel a bit, you do feel a bit sort of, you question yourself I think. Am I being a bit underhand here, but at the end of the day I’m only taking contacts. I’m giving, I’m gonna say to clients I’ve had this opportunity to work from home …” 92.Mr La Gette was cross-examined about this. He denied that in this part of the conversation he was talking about taking client details from Trailfinders’ records. He said that he was having a soul-searching moment because he was leading a double life, not telling colleagues he had known for many years that he was leaving. 93.Although in this passage Mr La Gette spoke of keeping email trails clear because he was aware that, presumably Trailfinders, may be looking, he said that he felt like a spy and later that he was only taking contacts, I find the passage and the transcript more generally was too ambiguous for me to conclude that Mr La Gette was saying that he had copied or that he intended to copy client information from Trailfinders’ records. He may just have been telling Ms Oldfield that he intended to bring clients with him to TCL, which he did. 94.There was also evidence about a further phone call, this one with Helena Thompson of TCL on 21 September 2016, shortly before Mr La Gette left Trailfinders. The call shows, which is anyway not in doubt, that Mr La Gette was going to provide at the least names and contact details of his Trailfinders clients. This was part of the exchange: Ms Thompson: Yeah, the only thing we need to have is their title so that’s Mr, Mrs or whatever, first name, surname and email address, there are also fields for their phone number and their postal address if you’ve got them, you can put them in and they will get uploaded automatically. Mr La Gette: And as long as they are in that format they will upload. Ms Thompson: Yeah, that’s fine, but if you haven’t got all their details don’t worry about it, it’s just the email we need really at this stage. 95.It is clear that Mr La Gette provided a lot of contact information to TCL after he left Trailfinders on 30 September 2016. On 14 October 2016 an individual at TCL from the ‘Graduate (Recruitment)’ section, whose name was redacted from the copies of emails in evidence, responded to Mr La Gette’s having sent TCL his client list. The email had the subject heading ‘Re: Andy La Gette – Client list’. It included this: “Thanks for sending this over. It looks largely fine, and fantastic that you have so many contacts!” 96.Mr La Gette confirmed in cross-examination that he had more than 200 contacts. It is apparent from his conversation with Ms Thompson that he is likely to have provided the names of those contacts, at the minimum their email addresses and possibly in addition some phone numbers and postal addresses. 97.Ms Thompson’s remark that all TCL really needed was a name and an email address makes sense. If, for instance, it were the case that Mr La Gette had copied down all his clients’ names and email addresses to be uploaded on TCL’s system, I do not think that it would have made any real difference had Mr La Gette drawn the remaining information about those clients from public sources or by speaking to the clients. What mattered had been copied and passed to TCL. 98.However, I do not know that this was the case. To the extent that Mr La Gette’s case is that he did this from his own knowledge, I doubt that he remembered over 200 names, far less 200 email addresses, leaving aside other information about his clients, but it is impossible for me to say how much he did remember. Information taken from Superfacts 99.At least some of the information which Mr La Gette passed to TCL was copied from the Superfacts system on his last day of work at Trailfinders. The argument advanced by Mr La Gette in cross-examination and later on his behalf was first, that none of this information was confidential because it was also available from public sources. But the names of all his clients was not public knowledge and for the reasons discussed above, it is no defence to an allegation of breach of confidence by taking information from confidential data held by an employer that the information could have been obtained from publicly available sources. 100.Secondly it was said that this information was also part of Mr La Gette’s experience and skills, held within his memory. As Nicholls V-C observed in Universal Thermosensors (see above), the argument that a former employee went to the trouble of copying information although he need not have bothered because it was in his mind makes for “a difficult row to hoe”. I have no good reason to accept that argument in the present case and I do not. 101.I find that the information Mr La Gette copied from Superfacts was class 2 information and at least in part beyond his experience and skills. The copying was done in breach of the implied term in Mr La Gette’s contract of employment. The disclosure of that information to TCL and its subsequent use by Mr La Gette was also in breach of his equitable obligation of confidence to Trailfinders. Further, these were unlawful acts within the meaning of art.4(2) and (3) of Directive 2016/943. Client A 102.For similar reasons Mr La Gette is liable for the copying of information relating to Client A, its subsequent disclosure to TCL and its use by Mr La Gette once he had joined TCL. Viewtrail 103.Mr La Gette admitted that he accessed Viewtrail after he had left Trailfinders and used that information for his TCL franchise business. He accepted that a lot of information on Viewtrail was confidential. 104.Mr La Gette’s reason for being entitled to that information was that anyone who knew the relevant clients’ surnames and booking references could access Viewtrail and obtain it. It was also his and Mr Bishop’s written evidence that names and booking references were given to third party suppliers of services used by Trailfinders’ clients, so they too had access to the Viewtrail information. 105.As to the latter point, Mr La Gette accepted in cross-examination that third party suppliers were not given names and booking references in order to permit them access to Viewtrail, but for other reasons connected with providing a service to the clients. Mr La Gette also accepted that the suppliers may not have known that they could have gained access to Viewtrail and that he knew of no instance in which this had happened. 106.In his witness statement Mr La Gette said Trailfinders actively encouraged clients to use Viewtrail to forward their quotes to friends and family. In cross-examination he accepted that this was done by a friends and family link that clients would find when they accessed their own Viewtrail information. He was unsure as to how much of the Viewtrail information could be transferred using the link. 107.Mr La Gette also said in his witness statement that in about October 2015 he had spoken to his General Manager, Steve Lane, about former employees accessing Viewtrail. According to Mr La Gette, Mr Lane had contacted Head Office and was told that no rules had been broken and that nothing need be done about it. 108.It is self-evident that any client of Trailfinders was free to pass on any information about themselves and their booking to whomever they chose. It appears that Viewtrail made this easy in respect of at least some of the information on the system. I can give no weight to Mr La Gette’s evidence about what an unnamed person at Trailfinders’ head office said to Mr Lane, as reported by Mr Lane to Mr La Gette. One real possibility is that head office was told or assumed that former employees were given a booking reference by former clients and were accessing those clients’ information on their behalf. If so, it would be understandable that Trailfinders took the view that they could not object. 109.TCL commissioned a report from an organisation called Conflict International. Central to it was reference to a conversation on 25 November 2019 between an individual posing as a client and a sales agent at Trailfinders called James. I was also shown a transcript of the call. It established nothing more than that Trailfinders allows its clients to access their details on Viewtrail and pass those details to friends and family. 110.None of the evidence supported the implied contention made on behalf of Mr La Gette that Viewtrail was a free-for-all source of data and that this was common knowledge. I think the true position was that each client could access their own information, as could anyone else permitted to do so by that client. Otherwise, the information on Viewtrail contained, as Mr La Gette accepted, information confidential to Trailfinders and was therefore, as a whole confidential. 111.In his witness statement Mr La Gette said that he had always asked a client for permission to access their Viewtrail information before he did so. In crossexamination he admitted that there were no emails recording such a request from him or permission being given by any client. He said that this was because all requests and permissions had been done by phone. He also said that when clients told him of their booking references, which would have allowed access to their information on Viewtrail, he would have written the booking references down on an A4 sheet of names that was destroyed some time later. Mr La Gette agreed that obtaining the agreement of his clients to access their information on Viewtrail was important to him. It was suggested to him that it would therefore have been important to him to keep a record of the permissions given. Mr La Gette replied that at the early times it was important but that as time went by, his new database superseded retained history on Viewtrail. 112.Although I have some doubt about Mr La Gette’s claim that his Viewtrail access to information about 10 former clients after he left Trailfinders was done, without exception, with the permission of the relevant client, I am not able to say that the claim is false and on balance I accept that evidence.