|Secrets are valuable when|
kept -- but fun when shared
Premier was a model agency, for which Bruce had worked as a booker [for an explanation of 'booker' in this context, click here. The word is not a mis-spelling of 'hooker']. Under his contract of employment ,Bruce was restrained from engaging in competition with Premier both during his employment and for a further 12 months post-employment when he was bound by a non-solicitation clause which prevented him from soliciting Premier's employees and its models. Additionally, a confidentiality clause restricted Bruce from disclosing any of Premier's confidential information either during or after his employment.
During the period in which Bruce, having resigned, was serving out his notice, Premier discovered that he had been emailing information about Premier, its models and its customers to his friend and partner Ribeiro, who had set up up a company (PRM) of which both Bruce and Ribeiro were directors. Premier, maintaining that PRM was competing with it, secured interim injunctive relief. Premier also alleged that Bruce had fraudulently inflated travel claims, thereby obtaining over £21,000 -- something which Bruce conceded he had done, adding that Premier had told him to.
At trial, Premier sought judgment against Bruce both for fraud and for breach of contract, as well as judgment against Ribeiro and PRM for inducing Bruce to breach his contract. The Deputy Judge held in favour of Premier on all counts.
First, he found that the contractual restrictions on Bruce's activities during and after his employment and the 12-month non-solicitation clause were both reasonable and enforceable. Not just that, but the information relating to Premier's models [Merpel wonders: "vital statistics"?] was commercially valuable too and Premier was entitled to use restrictive covenants in order to nail it down [Katnote: since restraints on trade are prima facie unenforceable and have to be justified, whoever drafts them has to get the balance just right. Restrain too much and the clause is useless; restrain too little and you fail to give your client adequate protection. Valid restraints are easiest to get right where the commercial interest that needs protecting is a fairly static and predictable one, but quite tricky where a business is operating in a commercial environment in which technology, consumer expectations and other factors make it difficult to predict today what might be important to protect tomorrow].
On the facts there was overwhelming evidence that Bruce was in substantial breach of his contract of employment for around nine months before he gave notice. Adding to this the timing of his resignation and the start-up and incorporation of PRM, it was clear that, by the date of PRM''s incorporation if not earlier, it was the joint intention of Bruce and Ribeiro that he should play a part in the business. Moreover, he had misused Premier's confidential information and sought to solicit his employer's clients and customers.
|Taking a leaf out of Eddie Irvine's book,|
top model Catrice wouldn't get out of bed
for less than £25,000
PRM's liability for inducing breach of Bruce's employment and post-employment terms was the next issue under scrutiny. Since, said the judge, that company was at all material times basically an emanation of the decision-making processes of Ribeiro either alone or in concert with Bruce, PRM was just as liable for inducing Bruce's breach of contract as Ribeiro was [This reasoning would seem to support the curious proposition that, if Bruce had set up PRM himself and exclusively controlled it, he could through medium of his own company be liable for inducing his own breach of contract].
Given the seriousness of an allegation of fraud, and the inherent improbability that a trusted employee would defraud his employer, cogent evidence was needed if the court were to satisfy it on a balance of probabilities [these being civil proceedings, where the burden of proof is lower than the 'beyond reasonable doubt' standard of criminal law] that fraud had been committed. Even so, the court was satisfied that Bruce had fraudulently fiddled his travel costs and had benefited to the tune of £21,020. Since Premier was duty-bound to refund to its clients the disbursements for which it had overcharged them in result of this fraud, the company had suffered loss for which Bruce was bound to compensate it.
Finally, injunctive relief was given, in much the same terms as the contractual restrictions that had already been imposed but breached. The main differences were that (i) unlike the contract, which covered just Bruce, the injunctive restrictions now covered Ribeiro and PRM as well, and (ii) breach of a contract merely incurs civil liability, while failure to comply with the injunction is a contempt of court -- definitely not recommended.
More background on this case from the Evening Standard and Telegraph
Booker prize here
Have fun painting models here (a bit naughty) and here (not so naughty)