Intellectual Property Enterprise Court

Claim No: IP-2021-000114 - [2023] EWHC 3153 (IPEC)

Fecha: 08-Dic-2023

Witnesses

Witnesses

10.

I heard three live witnesses. These were Mr Philip Hilbeck and Mr Erik Chapman for the Claimant, and Mr Ludley for the Defendants. Each filed a witness statement and were cross-examined and re-examined.

11.

Mr Hilbeck is the sole director of the Claimant. He is also the sole director of an associated company called PL London Ltd (“PL London”) which trades as ‘Panoramic Landscape Contractors’ and provides commercial soft landscaping services to building contractors in and around London and across the South East. He filed a witness statement dated 31 July 2023 and also signed the Claimant’s pleadings, which stand as evidence. He attended Court and was cross-examined and re-examined. Although controlling a nonetheless evident anger at Mr Ludley and what he says is the catastrophic effect that Mr Ludley’s actions have had on the Claimant’s established landscape recruitment business, I consider that he was a good witness, straightforward, credible and reliable.

12.

Mr Chapman has been the Recruitment Manager of the Claimant since 4 August 2021. He had previously worked for the Claimant as Recruitment Consultant, and then Recruitment Executive, between 18 November 2019 and 12 June 2021. He therefore worked alongside Mr Ludley at the Claimant for almost the entirety of Mr Ludley’s employment, but left the Claimant’s employ a week or so before Mr Ludley handed in his notice. Mr Chapman filed a witness statement dated 7 August 2023, was cross-examined and re-examined. Mr Chapman was a very good witness, in my assessment. He clearly came to court to give honest evidence to the best of his recollection and I am satisfied he was both credible and reliable.

13.

Mr Ludley filed a witness statement dated 31 July 2023 and also signed the Defendants’ pleadings which stand as evidence. He was cross-examined and re-examined. Mr Ludley comes to court as an admitted wrongdoer, on the back foot as it were. I have been alive to that, and careful to assess him fairly. To his credit he made a number of admissions at an early stage and in oral evidence made a number of concessions and admissions which undermined his case, as I will come to set out. However he has also destroyed evidence and he has provided surprisingly limited evidence as I will go on to discuss. I found him to be very keen to argue and advocate, and he was unwilling to make some very obvious concessions, namely:

That if a competitor gained access to the Claimant’s client list it would be in a better position to compete with it. Mr Ludley attempted to justify his position in oral evidence by arguing, hopelessly, that everyone knows who supplies Tesco as they can see the products on the shelves. There are many criticisms that can be made of that argument, not least that it confuses customers with suppliers. A better analogy would be if a competitor gained access to Tesco’s clubcard database, but that certainly would not strengthen the Defendants’ case that such information is not confidential;

ii)

That knowing to whom to address a marketing email like his 27 June Email was key to generating marketing leads from it. He opines in his witness statement that sending a marketing email was a “wide scattergun approach” and “generally pointless”. However he sought to avoid the question of why he had taken the client database from MailChimp and used it to send the 27 June Email if he thought it was pointless and unlikely to generate any useful marketing leads, saying only “we do an enormous number of pointless things”. He eventually conceded in answer to a direct question from the Court that when he sent the 27 June Email that he hoped it might generate marketing leads for his new venture;

iii)

That he knew that pursuant to his employment with the Claimant he owed it a duty of confidentiality in respect of confidential information. He maintained this position despite his attention being drawn to: (i) the confidentiality provisions at clauses 46 and 47 of his contract of employment; (ii) the requirement in clause 50 of his contract of employment to familiarise himself with and comply with the Claimant’s policies and procedures; and (iii) the confidentiality obligations in the Employee’s Handbook, which he had signed accepting receipt and acknowledging that he had a responsibility to read and comply with it. He said he hadn’t seen it, but I am satisfied that it is more likely than not that he did.

14.

I also am satisfied Mr Ludley has been untruthful in his evidence about why he sent the 27 June Email. In his witness evidence he seeks to paint it as a mistakenly humorous attempt to distinguish his new business from that of the Claimant, saying that he did not want to pretend to be the Claimant. In cross-examination he repeated that it wasn’t his intention to portray his company as the Claimant, whilst accepting that it was entirely misleading, but he sent it as “displacement activity because I was bored of doing what I should be doing”. This is not credible, in my judgment and the manner in which he gave that evidence was such that I have no doubt he knew it was not credible. I am satisfied that he sent it with the intention of directing the Claimant’s business leads to his new venture, Greenscape. I found Mr Ludley to be more focussed on dismissing and arguing against the Claimant’s evidence than assisting the Court with evidence of his own. A proportion of his evidence is in the form of self-serving generalised statement and opinion which does not stand up to scrutiny, in my judgment. I treat the remainder of his evidence with great caution unless it is supported by other credible and reliable evidence or the inherent probabilities.

Evidence