Contents
Introduction. 1
The claimant and its business. 1
Founder members and associate members. 3
Contact details and the database. 3
The principal allegation against the
defendants. 8
Competition and the defendants. 8
Charles and Gerard Byrne. 9
An overview of the claimant’s pleaded
case. 11
The defendant’s case: an overview of
the target list, the downloads and emails. 13
The Target List. 13
The exhibit 15
The 2010 Annual Report 18
The download in June 2015. 20
The download in November 2015. 22
The “database” emails between Mr
Byrne and Mr Murrell 24
Personalities and management style. 34
Restructure in December 2014. 35
Meetings in July, August and
September 2015. 36
Why did the claimant and
Mr Byrne part company?. 37
Wednesday, 21 October 2015. 39
Negotiations and settlement 44
The target list and confidential
information – how the trial proceeded. 47
The claims for breach of contract and
breach of fiduciary duty. 49
Assessment of Witnesses. 52
Neil Howlett 53
Professor Byrne. 53
Mrs Nicola Byrne. 54
Mr Murrell 57
Miss Ann Copsey. 58
Mr Byrne. 61
Conclusion. 63
JUDGE McCAHILL
QC:
1.
This is a bitterly contested commercial dispute between the
claimant, Alliance Surgical PLC, a healthcare company, and its former
Chief Executive Officer (“CEO”), the first defendant, Charles Byrne
(“Mr Byrne”).
2.
The central issue is whether Mr Byrne, either before or after
leaving the claimant’s employment on 30 November 2015, following
10 years’ service, extracted the whole or selected substantial parts
of the claimant’s database for his own purposes and without the consent of the
claimant, thereby infringing the claimant’s database rights under Regulation 16
of the Copyright and Rights in Database Regulations 1997 (“the Database Regulations”).
3.
Because of the multiplicity of issues to which the case has given rise,
it will be necessary for me to resolve a number of other issues before
determining the central issue.
4.
The claimant is the lead company of a Birmingham based group of
companies which provide independent medical services through its medically
qualified consultants to patients who have been referred to the claimant or who
otherwise contact the claimant directly.
5.
Although members of the public can approach the claimant directly, the
claimant receives work principally from two major sources.
6.
First, a large company, for example Rolls Royce, may pay the
claimant an annual lump sum to cover its employees under its private healthcare
scheme. The challenge for the claimant is to find and pay for surgeons,
doctors and hospital beds to satisfy all the medical referrals under the scheme
and to make a profit out of the lump sum.
7.
Secondly, the claimant might contract with a corporate healthcare
insurer, for example Vitality or AXA, whereby the claimant deals with all contact
with the insured patient and puts the patient into contact with the appropriate
consultant by an effective triage system and covers all the costs billed by the
consultant in hospital out of the sums it has agreed with the insurer.
8.
Two of the secrets of the claimant’s success are: (1) the quality of the
journey experienced by the patient throughout this process; and (2) the cost
effective way in which the entire administrative and medical service is
provided.
9.
In essence, the claimant pays the consultants and the hospitals out
of the contract fee it receives and tries to make a profit in the
process.
10.
The claimant was incorporated as a private limited company
on 3 September 2004 and converted to a public limited company on
14 December 2004.
11.
Paul Howlett and Ann Copsey, between them, own around 75 per cent
of the issued share capital of the claimant.
12.
Until Mr Byrne’s departure in November 2015, the
four directors of the claimant were Ann Copsey, Paul Howlett, Neil Howlett, who
is the son of Paul Howlett, and Mr Byrne, the first defendant.
13.
One of the concepts of the claimant is that consultants and surgeons are
able to become members of the claimant’s members group by peer invitation only
and, as such, part owners through a shareholding in the claimant and in their
designated regional limited companies, the principal service providers (“PSPs”),
with which the claimant contracts for the provision of medical and surgical
services.
14.
At the heart of the members’ group are the original founder member
consultants (“founder members”) numbering originally around 350
consultants. Most if not all of these founder members were shareholders in the
claimant, just as the defendant’s brother, Professor Gerard Byrne,
(“Professor Byrne”) was and remains.
15.
These founder members were recruited as a result of an initial drive to seek
founder members over a two-year period before the claimant began work in building
relationships with potential customers; for example, insurance companies.
16.
Later on, they were joined by a new group of members called “associate
members”, most of whom were not shareholders in the claimant, although about
100 of them are.
17.
The claimant spent significant time and resources, including financial
resources, in building its network of consultants and obtaining the contact
details for those who became its founder members. Around £2 million was spent
in setting up that original network and building those contacts over a three-year
period before the claimant could start trading in July 2007.
18.
Those details included contact details and personal information such as
job roles, email addresses, personal and work telephone numbers, personal
income, including private practice and business income in 2005 at least,
medical indemnity and addresses.
19.
Efforts to recruit and retain associate members are, and have always
been, ongoing. Once recruited, similar details relating to associate members
went on to the database of consultants.
20.
At the outset of these proceedings in August 2016 the claimant had
around 1,472 members, including 226 founder members and 1,236 associate
members. Membership is subject to a vetting system.
21.
During the course of these proceedings 45 founder members have left,
including 31 in 2017 alone. I have been told that in May 2017 the claimant had
2,415 consultants on its database, including resignations, declined invitations
to join and active members.
22.
The members are in effect suppliers of surgical and medical services
through the PSPs they control to the claimant. For example, the claimant will
receive a patient referral form from one of its insurance customers for which
it will charge the insurer a fee. The patient will then be referred to one of
the claimant’s members who will then complete the clinical work.
23.
The member will charge a fee for completing the clinical work. This will
be paid by the claimant which will retain the difference. In turn, the members
pay an annual fee to Medical Ventures Partnership LLP (“Medven”) in which Ann
Copsey and Paul Howlett are partners. One consultant, Phillip Drew, stated in
his witness statement that he paid £4,000 per annum to Medven.
24.
According to an analysis of a spreadsheet of active members in September
2011 carried out by Mr Hall, counsel for the defendants, during the trial,
there is a total of 43 specialties represented on the claimant’s database of
consultants.
25.
Mr Byrne gave evidence that having (1) worked for the claimant for 10
years, (2) been instrumental in securing some of the original founder members
in the first place and (3) having produced hundreds of reports containing
consultant details and their specialties, he knew off by heart the names of
many, if not most, of the active founder members and the names and correct
spelling of their specialties.
26.
The extracted material was alleged to be data relating to those
consultant members who, as part of their private practice, provided medical
services to patients referred to them by the claimant.
27.
The database primarily exists in an electronic format within a bespoke
system which has been designed for the claimant and which is based on a Sage
customer relation management system (“SAGE CRM system”). In this judgment
whenever I refer to the claimant’s database it is a reference to this CRM
database. Moreover, it is inevitable that I shall not always use the word
“extract” in describing the alleged misuse of the database. However, I have not
forgotten that in the Regulation itself the words used are “extracts or re-utilises”,
not “misuses”.
28.
At the time of the preparation of the computer expert’s first addendum
report dated 29 September 2017 the claimant’s database comprised 331 founder
members, 2,111 associate members, 3,540 consultants, 42,996 GPs and 3,683
others.
29.
The inbuilt reporting functions within the Sage CRM system is designed
to pull out relevant data from within the large database. Each record within
the database can hold 351 different pieces of data and reports can be produced
within Sage CRM to return any of that data. This data can be exported into a
Microsoft Excel spreadsheet using that reporting function and, once imported
into a spreadsheet, the selected information can be printed off or adjusted.
30.
Between pages 77 and 89 in core bundle 1 is a document produced
administratively by an employee of the claimant in September 2011. It is
entitled “List of active members”; that is consultants then providing services
to the claimant.
31.
It is an example of a computerised report produced from the database by
selecting and sorting chosen data by reference to information inserted into the
claimant’s data information form using information provided by or obtained from
a consultant member.
32.
In this example the column headings are salutation, first name, last
name, primary specialty, status e.g. active or not, member status e.g. founder
member or associate member and location of the member by reference to the
region of the principal service provider or PSP.
33.
In this version of the document, which was produced in evidence, entries
in the salutation, first name and last name columns have been redacted, apart
from a small number of consultants whose names have featured in the evidence before
me.
34.
The contents of the document have been sorted primarily by alphabetical
order of PSP; for example, Anglia, followed by Avon and South Wales, followed
by Birmingham and West Midlands and so on. The contents thus sorted or
arranged have been sub-sorted by alphabetical order of last name of the
consultant member within each PSP.
35.
It is important to observe that there is no basic or default
presentation of the contents of the database. It is merely a pool of distinct
snippets of data which can be selected, compiled and sorted into a report under
the column headings according to the chosen fields and manner of their
presentation.
36.
The claimant’s entire database has not been put in evidence in this
case, merely certain selected reports run from it. Therefore, the defendants
and the court have had to work during this trial principally with that redacted
report of consultants produced by the claimant in September 2011 and such other
extracts of the database as featured in the trial bundles or in the three
reports of the independent consultant expert, Mr Wells.
37.
It is common ground that Mr Byrne had unlimited access to the database.
He had been provided by staff with many reports derived from it containing
consultant details, and I find that he had himself used the system to generate
hundreds of reports containing details of consultants, their specialties and
PSP location. I find that over his period of employment with the claimant he
had typed out the names of consultants and their specialties on numerous
occasions and so was familiar with their correct spelling. I accept his
evidence that he was fastidious, if not obsessive, about accuracy of spelling
and presentation.
38.
The claimant alleged that Mr Byrne took the whole, or part, of the
claimant’s database and confidential information with him. The claimant
further alleged that Mr Byrne shared the extracted data from the database with
the second and third defendants who, knowing how and where it was unlawfully
obtained, deliberately used that database and the confidential information
therein to contact some of those consultants on the claimant’s database for the
purposes of soliciting business for the accountancy practices operated by the
second and third defendants.
39.
Neither the claimant nor any of its subsidiary or group companies is, or
was, engaged in providing tax or accountancy services or advice to doctors.
40.
Despite tentative and nebulous suggestions by Ann Copsey of the claimant
to the contrary, I reject any suggestion that it ever formed part of the
claimant’s agreed business plan to provide such services or advice, at least
before Mr Byrne’s departure.
41.
However, the founding directors of the claimant, Ann Copsey and Paul
Howlett, are also equal shareholders in The Money Doctors Ltd (“Money Doctors”)
incorporated before 2005 which does provide such specialist advice to between
about 100 and 150 doctors and consultants, many of whom appear within the
claimant’s database of member consultants.
42.
The third defendant, Accounts Unlocked for Doctors Ltd, as its name
suggests, does compete with Money Doctors. It was incorporated in December
2015 and is owned equally by Mr Byrne and Don Murrell, a chartered accountant.
43.
None of the restrictive covenants contained in Mr Byrne’s contract of
employment with the claimant prevents Mr Byrne from working in an accountancy
business as such a business does not compete with the claimant. Moreover,
Money Doctors is not a group company as defined within clause 1.11 and schedule
1 of Mr Byrne’s service contract with the claimant.
44.
The second defendant, Accounts Unlocked LLP, is a long-standing general
accountancy practice of which Don Murrell is a partner. It was not directed at
a medical clientele. There is no suggestion that any consultant on the
claimant’s database is or was a client of the second defendant, as far as I am
aware. This was Mr Murrell’s practice with which Mr Byrne had first contact
before the incorporation of the third defendant in December 2015.
45.
Mr Byrne, although holding first and postgraduate degrees, including an
MBA, is not an accountant.
46.
Before his appointment as CEO of the claimant in 2005 he had no
involvement in the healthcare industry.
47.
He is about 48 or 49 years of age. He is married to Nicola Byrne, who
also gave evidence before me. They have three children aged 16, 12 and 9.
48.
Mr Byrne’s brother, Professor Byrne, is a specialist breast surgeon. In
2000 he was appointed as Senior Lecturer at Manchester University. He received
his first professorial chair in 2008 and his second in 2011. He was formerly
the Director and Dean for Education and Quality for Health Education England.
He is currently the Director of Global Engagement for the English National
Health Service. In addition to his other duties, he still practises as a
breast surgeon.
49.
I am satisfied that Professor Byrne is an extremely well-known and
well-connected surgeon within the NHS and the private healthcare sector
nationally. He has extensive lists of personal telephone numbers and email
addresses of consultants available to him, and contained on his own phones,
computers and other electronic devices, derived from details provided to him by
those contacts and not by the claimant.
50.
He was involved with the claimant in its formative stages. He is a
founder member and still holds a number of shares in the claimant. Until 27
September 2016 Professor Byrne had been Chairman of the claimant’s Medical
Directorate.
51.
It was Professor Byrne who introduced Mr Byrne to the claimant as a
potential CEO.
52.
At the very least Professor Byrne helped the claimant to establish
contact with some of the consultants in the database by speaking to and
introducing the consultants to the claimant.
53.
I have been told that most consultants are notoriously reluctant to make
their own personal addresses and telephone numbers (as opposed to those of
their secretaries) publicly available. It would be very difficult for a
representative of a company such as the claimant to try and make a successful
cold call on a consultant for commercial purposes.
54.
Professor Byrne enabled that initial resistance to be broken down by
making a “warm” call himself to the consultants, encouraging them to speak to the
claimant. By no means was Professor Byrne the only person engaged in that
process, others were as well.
55.
The claimant has pleaded its case principally on the basis that Mr Byrne
has infringed the claimant’s database rights and/or misused the claimant’s
confidential information and that the second and third defendants also
indirectly infringed the claimant’s database rights and/or broke the claimant’s
confidence by using a copy of all or substantial parts of the database in the
knowledge that Mr Byrne had obtained the database in breach of his duty of
confidence to the claimant.
56.
For their part the defendants admit that the claimant has a database
right in the database under the Database Regulations.
57.
In addition, the claimant has put its case against Mr Byrne on the basis
of Mr Byrne’s alleged breach of his service contract with the claimant and/or
on the basis of his alleged breach of the fiduciary duty he owed to the claimant
as a director and high-ranking executive of it.
58.
The defendants, and in particular Mr Byrne, deny (1) that he has
extracted a copy of all or any part, let alone a substantial part, of the
claimant’s confidential database for his own purposes or without the consent of
the claimant, or (2) that he has disclosed a copy of all or any substantial
part of the conventional database to any third party, or that (3) he has used a
copy of all or any part of the confidential database for his own purposes or
for the purposes of the second or third defendants.
59.
The claimant has no evidence from any eye-witness who witnessed any
wrongdoing by Mr Byrne. It would indeed be perhaps surprising if it did, given
that such allegedly illegal activities would normally be carried out
clandestinely.
60.
The claimant’s case was initially put on a wide range of circumstantial
evidence and inference, some of which has fallen by the wayside.
61.
The three remaining pillars of the claimant’s case in order of
importance are:
(1)
A target list of “low-hanging fruit” prepared by Mr Byrne on 11 November
2015, which was said to bear a striking similarity or striking similarities to
the equivalent entries on the claimant’s database.
(2)
Downloads of data in June and November 2015 found on the claimant’s iPad
used by Mr Byrne, which Mrs Byrne returned to the claimant on 29 June 2016.
(3)
A number of emails passing between Mr Byrne and Mr Murrell.
62.
Mr Byrne had in fact disclosed the target list himself to the claimant
in the course of these proceedings, and the downloads in June and November 2015
were still to be found on the returned iPad, which had not been interfered with
in any way by him and were still there for the claimant to see.
63.
However, Mr Byrne had deleted some but not all of the emails passing
between him and Mr Murrell from his email boxes at the claimant. Nevertheless,
the entire chain of email correspondence was disclosed by him in these
proceedings.
64.
The claimant relies on the target list as both direct evidence that
extraction of the claimant’s database has occurred and also, and alternatively,
as amounting to an extraction itself within the Database Regulations.
65.
Mr Byrne and his wife gave evidence that the target list of 44 names was
compiled by:
(1)
Mr Byrne calling out names of consultants he knew or he knew would help
him, together with their specialty.
(2)
Mrs Byrne typing those names and specialties out on an old HP laptop
using a 1997-2003 edition of Microsoft Office and, in particular, the Excel
spreadsheet facility.
(3)
Mr Byrne subsequently tidying up the spelling, formatting, heading and
colouring of the target list.
66.
Mr Byrne emphatically denied keeping or extracting or using any part of
the claimant’s database in the compilation of the target list, alleging that it
would be of no use to him in his new proposed business venture. He said that
he had an excellent memory for these 44 consultants, and indeed many others,
with whom he had established long-standing personal as well as commercial
relationships in the 10 years he was the CEO of the claimant.
67.
Mr Byrne had disclosed this target list in these proceedings and indeed
had attached it to one of his witness statements. It is to be found at core
bundle 1, page 211. An extremely succinct description of the target list is to
be found in paragraph 103 of the claimant’s closing written submissions. It is
not necessary for me to repeat it here.
68.
Mr Hall submitted that Mr Byrne would be a rather unique dishonest
copier or extractor of the claimant’s database if, having gone to all the
lengths clandestinely to obtain a copy of the database and to misuse it, he
then voluntarily disclosed the target list to the claimant, enabling the
claimant thereby to make it the cornerstone of its case.
69.
Because the names of the consultants on the target list appear to be in
a rather haphazard order, and certainly not in alphabetical order of surname,
this may have implied that the names were somewhat randomly selected and so
supportive of Mr Byrne’s case.
70.
The claimant’s solicitors endeavoured to show that there was nothing
haphazard at all about the order of the consultants’ names on the target list
because if those surnames were arranged by reference first to PSP, as they
appeared on the claimant’s database, then they would substantially come out in
the order in which they appeared on the target list, except that on the target
list associate members were listed after foundation members within each PSP,
whereas in the September 2011 report of active members produced from the
claimant’s database, associate members were listed before founder members
within each PSP.
71.
In what I am satisfied was an honest and genuine attempt to demonstrate
this graphically, the claimant’s solicitors prepared a document (“the exhibit”)
which is to be found at core bundle 2, page 498.
72.
The solicitor concerned had been supplied by the claimant with a report
produced from the claimant’s database sorted by consultants’ last names. He
then extracted from that report 43 of the 44 names on the target list. One
name had been omitted by the solicitor in error.
73.
He then sorted the surname list alphabetically by PSP and then by
surname, exclusive of member status, producing a redacted list under the
visible headings, salutation, first name, last name, primary specialty,
secondary specialty and PSP, the formatting of which he then tidied up to make
it more presentable. However, he retained the colour of the heading on the
report as supplied to him.
74.
Unfortunately, he did not file a witness statement explaining what he
had done until the matter became an issue during the trial. Moreover, Ms
Copsey’s witness statement produced the exhibit as if it were a faithful image
of the content and formatting of what was on the database without explaining
that it was a construct prepared for illustrative purposes.
75.
In other words, the exhibit as produced looked more similar to the
presentation of the target list than the source document from which it had been
compiled, whereas it had been created only to show how the apparently haphazard
order of names on the target list corresponded substantially to the names
sorted by PSP on the database. Moreover, in preparing the exhibit the
solicitor concerned had altered some of the spacing or column sizes.
76.
During the course of the trial and before the provenance of the exhibit
had been explained, Mr Hall cross-examined on apparent inconsistencies between
the formatting of the exhibit and the report produced by the expert from the
database.
77.
This had led to the suggestion put to Ms Copsey that the exhibit had
been deliberately compiled in a way to mimic the target list. Eventually the
solicitor concerned explained in a witness statement and his subsequent oral
evidence how he had been responsible for the presentation of the exhibit.
78.
Everyone, including myself, now accepts that there was no intention by
the solicitor to mislead in preparing that exhibit that way.
79.
Although the solicitor explained to Ms Copsey how he had prepared the
exhibit, I am satisfied that Ms Copsey was not put on notice that there
was anything improper about it. I reject any suggestion that she was party to
any knowing concealment of the relevant information from the court in relation
to this exhibit. If the solicitor concerned did not appear to be worried by it
at that time and thought he was doing something to assist the court I see no
reason why Ms Copsey should have been remotely troubled by it or thought it was
important to mention it.
80.
It was the responsibility of the solicitor concerned to ensure that the
court had been informed how the exhibit had been prepared either by supplying a
witness statement himself at the same time as Ms Copsey’s witness statement or
ensuring that her witness statement contained a relevant passage explaining the
provenance of the exhibit.
81.
Leaving aside the fact that the exhibit contains only 43 names, whereas
the target list contained 44, the claimant relied upon the arrangement of
surnames on the target list in PSP order, the identical colouring used on the
header on the target in the exhibit, the similarities and font type and size in
both lists and the identical spelling of the specialties. The claimant also
relied upon the fact that whereas the primary specialty on the database of a
number of consultants was general surgery followed by their second specialty,
all but one of the specialties listed on the target list were either the
primary specialty of the consultant concerned or, where that consultant was a
general surgeon, that surgeon’s second specialty.
82.
The “striking similarities” alleged by the claimant were analysed in
impressive detail by Ms Sen Gupta in her written closing submissions
between paragraphs 132 and 136 and in appendix 1 of those
submissions. Moreover, her detailed arguments against Mr Byrne’s
explanation for the target list are set out between paragraphs 137
and 143 as well as in appendix 2 of those submissions, all of which
I have considered in detail.
83.
Mr Hall, in addition to urging me generally to accept the evidence
of Mr and Mrs Byrne, pointed to three other matters which he
submitted militated against any extraction of the target list from the
database.
84.
The first was the order of surnames or last names within PSPs on the
target list compared to the database. In the target list, surnames were listed
alphabetically within PSP by member status with all founder members preceding
associate members. On the database extract for September 2011, all
associate member surnames were alphabetically listed within the PSP followed by
foundation members in alphabetical order.
85.
Secondly, he relied upon differences in the vertical alignment of
entries on the target list and on the database.
86.
Thirdly, he submitted that, because the database contained about 1,500
names and only 44 were placed by Mr Byrne on the target list, it
would indeed have been a very time‑consuming exercise to go through
the entire database of consultants in order to weed out the names which were
not to be chosen just to leave behind the residue of the 44 names which were
chosen. It would be much more straightforward to choose the 44, rather
than to leave them as the residue of 1,500.
87.
Mr Byrne explained that the order of names which he called out and which
his wife wrote down was not random because he was using the claimant’s 2010
annual report which he referred to as “the glossy”. That report was sent to
all shareholders of the claimant, of which he was one. He said that he used
that glossy as an aide memoire because it contained a list of all the PSPs
in alphabetical order.
88.
Mr Byrne said he could remember by heart the names of founder
members, by reference to their PSP, as he had effectively learnt them over
the previous ten years.
89.
Mr Byrne confirmed that he did not get the names of the 44 consultants
on the target list from the annual report, even though 39 of those 44
names and their specialties were actually set out in the report itself. He
said that he merely used the alphabetical lists of PSPs in the report to
trigger his memories of specific consultants he wanted to put into the target
list.
90.
That 2010 annual report, which is to be found between pages 35
and 76 of core bundle 1, is an interesting document. Not only does
it contain a full page entitled “Chief Executive’s Review” containing a photograph
and narrative prepared by Mr Byrne, but it also has a full-page
report, with a photograph, by Professor Byrne entitled “Medical
Directorate”. There is a separate medical directorate page
containing a photograph of, and a review of the year supplied by,
Mr Bruce Braithwaite, the Lead Medical Director for the regions who
reported up to Professor Byrne. There is also a page of members
update giving recent appointments for 22 named consultants.
91.
Between pages 66 and 68 of core bundle 1 is the organisation
chart of the claimant giving photographs, names, specialties and locations of
the eight consultants of the medical directorate (all reporting to
Professor Byrne) and two pages of consultants’ names under the
heading “Principal Service Provider Leads and Specialist Leads” where the
individual consultants and their location and specialties, including the
difficult to spell hepatobiliary, are set out.
92.
Between pages 69 and 76 is a list entitled “Founder
Member Shareholder List” in which under the columns “Founder Member”, “Specialty”
and “Principal Service Provider” are found the names of all those founder
members who were also shareholders of the claimant, together with their primary
and secondary specialties and their PSP location.
93.
It can, therefore, be seen that there was in the public domain plenty of
information about the identity of some of the leading consultants in the
country who were members of the claimant. Of course, no email addresses or
phone numbers were supplied in the glossy.
94.
However, in an unfortunate oversight by a new member of the
claimant’s administrative staff, details of the email addresses of all the
claimant’s members were contained in the recipients’ box, rather than in the
BCC box, of an email or emails sent on 3 June 2016, that is some
seven months after Mr Byrne left the claimant. Those emails were sent to
those members and their representatives, including Mark Fountain of Healthcare
Business Solutions (“HBS”). Mark Fountain and HBS once worked in cooperation
with the claimant on some healthcare contracts. Currently, Mr Byrne works
on a monthly consultancy basis for HBS.
95.
It is common ground that the contacts information (names and
email addresses), found and still visible on the returned iPad resulted from
a synchronisation of the iPad with Mr Byrne’s email address on the
claimant’s server, both having the same email address, in June 2015.
I find that this was synchronised by either a member of
Mr Byrne’s family or someone at work but not, I am satisfied, by
Mr Byrne himself given his limited IT skills.
96.
Moreover, the contact data of 2,681 contacts which flowed from
Mr Byrne’s email contacts on the claimant’s server did not come directly
from the claimant’s database because the email and contact details of many more
people were downloaded to the iPad than appeared on the claimant’s database of
about 1,462 potentially relevant names, even though 1,393 contact
names and email addresses were common to both.
97.
At best, from the claimant’s point of view, what was downloaded onto the
iPad in June 2015 was a combination of a part of the
claimant’s database of some contact details mixed with other contact details
created personally by Mr Byrne, which were wholly independent of the
database and came, for example, from Mr Byrne’s contacts via LinkedIn.
98.
However, the impugned download in June 2015 was equally
consistent with contacts which Mr Byrne had put into his email address
book on the claimant’s server which he had accumulated over 10 years and which was
synchronised onto the iPad when unusually the synchronisation button was
switched on in June 2015.
99.
In summary, the claimant cannot prove that the source of the downloaded
contact details in June 2015 was the claimant’s database.
100.
Indeed, there is evidence which suggests that at least some of the
contact details of individuals appearing both on the iPad and on the claimant’s
database did not come from the same source. For example, the same email
address, but differently capitalised, “CAROL.HARRIS” against “Carol.Harris”, existed
in both the claimant’s database and on the iPad. The independent computer
expert, Mr Wells, confirmed that if there was any link between the data in
the iPad and the data in the claimant’s database, this difference in letter size
would not have occurred.
101.
In cross‑examination, Mr Wells was asked by Mr Hall:
“Q. Your comparison, if there is a match, different
capitalisation but the same letters, that records itself as a match; is that
right?
A. Yes.
Q. If there is a sync between the iPad and the database, the
same categorisation (I think that should be ‘capitalisation’) will
occur in both, would it not?
A. Yes”.
Then later:
“Q. But I think you would accept from this exchange that you
cannot tell from your comparison document alone where there is a match
whether the origin of those email addresses on the database and in the iPad
come from the same place?
A. Yes.”
102.
In any event, at the time of the synchronisation in June 2015,
Mr Byrne was still working as an executive director of the claimant and
I am satisfied had then no intention of leaving the claimant’s employment,
where, I find, he expected to be spending the rest of his working life.
103.
At one time, the claimant also relied upon a subsequent download in
November 2015 of data onto the claimant’s iPad when it was still in the
possession of Mr Byrne. This was almost exclusively a download of
names and telephone numbers. The claimant no longer, as I understand it,
relies on this download to the iPad in support of its claim.
104.
The explanation for that download in November 2015 is as follows:
Following his last day at work in the claimant’s office
on 21 October 2015, Mr Byrne was at some stage cut off from
access to his email account on the claimant’s server. Accordingly, his wife
reinstated his former Hotmail email account and on 16 November 2015
this email address was substituted as his Apple ID on the iPad for
Mr Byrne’s email address with the claimant.
105.
In November 2010, Mr Byrne had also replaced his iPhone with
a brand-new Samsung mobile phone. As part of the set‑up process of
the Samsung phone, Mr Byrne’s Hotmail email address was made the email
identity of the new phone. When, therefore, on 16 November 2015 the new
Samsung phone was synchronised using the resident Hotmail email address,
it downloaded the contact data which had been on the old iPhone onto the iPad
as both then shared the same email address.
106.
However, the expert, Mr Wells, agreed that he did not compare
contact details as between the iPad and the claimant’s database, but merely
contact names. He confirmed that there is, therefore, no evidence of what
contact details, if any, were extracted from the database on this occasion. He
was asked by Mr Hall:
“Q. So just to be clear, your comparison of names downloaded in
November and the names in the database, that gives no indication of whether
there is any commonality of contact details between the iPad and the database?
A. Yes.”
107.
As I understand it, at least in relation to the claim for
extraction from the database, the claimant no longer relies upon the download
of data in November 2015 in support of its case against Mr Byrne.
108.
However, the claimant did submit that it was convenient in the extreme
for the first defendant that his Samsung mobile phone could not be interrogated
by the expert.
109.
The Samsung phone was supplied for inspection by the expert, but the
data on it could not be accessed without losing all the data in the process.
Mr Byrne said that he had dropped it into a toilet by accident when he was
attending a football match. Nevertheless, the Samsung phone, the iPad and the
iPhone were all made available to the expert for analysis.
110.
The third plank of the claimant’s case relates to these “database”
emails.
111.
The claimant’s case is that the emails passing between Mr Byrne and Mr
Murrell between September 2015 and November 2015 provide evidence from which it
can be inferred that Mr Byrne had retained extracts from the claimant’s
database and planned to use them in a new business venture with Mr Murrell
after leaving the claimant.
112.
Mr Byrne and Mr Murrell maintained that the claimant has misunderstood
or read far too much into those email communications between September and
November 2015, in that any reference within those emails to the word “database”
as one word or “data base” as two words was not a reference exclusively to the
claimant’s database, but represented Mr Murrell’s generic reference to a
dataset available for Mr Byrne as CEO, including Mr Byrne’s own personal
contacts and other public and subscription only databases to which Mr Byrne
had access himself or through Professor Byrne.
113.
I find that there has been a genuine misunderstanding by the claimant about
what these emails related to. I reject the suggestion that they provide
evidence supportive of the claimant’s case or represent material from which an
inference adverse to the defendants can properly be drawn, although I can, of
course, understand why they gave rise to some initial suspicion by the
claimant.
114.
These emails represent a distinct chapter of the evidence in this case
and gave rise to considerable cross-examination of Ms Copsey, Mr Byrne and Mr
Murrell. Given my conclusion, I do not propose to burden this already lengthy
judgment with an extensive citation of these emails, rather I will give my
findings in a series of propositions.
(1) Mr Byrne’s dealings with Mr Murrell up to and including 20
October 2015 were exclusively for the benefit of the claimant and related
largely to the Norris scheme, a tax-avoidance scheme. Those dealings were
between Mr Murrell and Mr Byrne as CEO of the claimant.
(2) At their first meeting on 23 September 2015 in St Pancras Mr
Byrne, I am satisfied, gave Mr Murrell his usual, and the word was used, “spiel”
indicating that the claimant had around 1,500 members divided into various
specialties, which he then summarised by specialty and numbers of consultants
within those specialties in round numbers totalling 1,500. The word “database”
was not used at that meeting by either of them. I am satisfied that, although
Mr Murrell took notes of the meeting, he had not at all grasped the essence of,
or the business model of, the claimant. He primarily saw his meeting with Mr
Byrne as an opportunity to sell the Norris scheme to wealthy consultants
through the claimant with the claimant earning referral fees in the process.
(3) As his subsequent emails revealed, Mr Murrell appeared to have
formed the impression that somehow the claimant might be able to assist other
businesses, in which he, Mr Murrell, had an interest or connection, which
provided locum consultants, doctors, physiotherapists or nurses, even though
the claimant dealt exclusively with established consultants at the height of
their profession, who were not remotely looking for locum work.
(4) Emails passing between Mr Byrne and Mr Murrell under the
subject “Norris” on 24 September 2015 included Mr Byrne’s identification of an
article identifying a potential market of 30,000 people for the Norris scheme,
Mr Murrell’s sending to Mr Byrne a standard Introducer Agreement, which I am
satisfied was intended for the claimant, and on which the claimant would earn
fees for referrals, and Mr Byrne’s offering to write a business plan.
(5) Meanwhile, Mr Murrell had mentioned the claimant’s potential
contacts to Atlantis Medical (“Atlantis”) at his meeting with them on 30
September 2015. The following day Atlantis emailed Mr Murrell to ask for
information regarding the “database”. I am satisfied that this was a generic
term coined by Mr Murrell to describe the list of consultants and their
specialties which Mr Byrne had summarised for him on 23 September 2015.
(6) On 4 and 5 October 2015 emails with the subject line “Data
base”, namely two separate words, passed between Mr Byrne as the claimant’s CEO
and Mr Murrell as the managing partner of the second defendant, in which
Mr Murrell mentioned that Mr Byrne had indicated that he had a database of
medical staff at their first meeting. It was Mr Murrell who first used the
words “data base” in his email on 4 October in connection with the discussions
that he had had with MedSol, a locum medical recruitment company with which Mr
Murrell had had commercial dealings. Mr Byrne replied to indicate that that
was not the sort of work with which the claimant was engaged. Hence, he wrote:
“We are consultants only”. This was in open correspondence using Mr Byrne’s
email address at the claimant and Mr Murrell’s address at the second
defendant. It is obvious, it seems to me, that Mr Murrell had not understood
the nature of the claimant’s business, hence Mr Byrne’s need to refer to the
fact that the claimant worked only with consultants, implying that fully
established and high-flying consultants would not remotely be interested in
doing locum work.
(7) Mr Murrell again wrote to Mr Byrne as CEO on 6 October 2015
asking him if he were able to determine age on “your dataset”. Mr Byrne
replied: “We can for our members and can tell age (approx.) by date for first
qualification (which is on the database).” The claimant’s database did contain
a field for a member’s date of birth but, as I understand it, not date of first
qualification. However, that latter field of information was obtainable from a
directory or database to which Mr Byrne had access through his brother. That
database was called Specialist Info. At the very least, therefore, Mr Byrne is
talking about two distinct sources of information available to the claimant
here, one relating to members and the other to non- members. In any event, Mr
Murrell’s evidence was that he understood Mr Byrne to be referring to the
dataset held by the claimant, not to any dataset purportedly held by Mr Byrne
personally as he was still dealing with Mr Byrne as the claimant’s CEO.
(8) On 7 October 2015, Mr Murrell emailed Mr Byrne an agenda for
the second meeting, which in fact took place on 20 October 2015. It can be
seen from this agenda, core bundle 1, page 153, that it was a wide-ranging
agenda dealing both with the Norris scheme and the potential GPs, nurses and
consultants represented as a market with a particular emphasis on GPs’ pensions
and their placement into NHS by recruitment agents. Again, that was sent to Mr
Byrne as CEO of the claimant to his email address at allsurgical.co.uk.
115.
This review of the email communications before the meeting of 19 October
2015, at which Mr Byrne’s possible departure from the claimant was suggested by
the claimant, leads me to conclude that there was nothing disloyal or sinister
about the reference to the database or dataset, including the claimant’s
members, as he was discussing business opportunities with Mr Murrell in his
capacity as CEO. The fact that Mr Byrne may not have repeated the full details
of his discussion to Ann Copsey or Neil Howlett does not cause me to doubt this
conclusion. Mr Byrne was the externally facing CEO of the claimant charged
internally with developing greater revenue streams for the claimant.
Accordingly, I do not regard these emails as evidence of any part or
anticipated unlawful extraction of data from the claimant’s database.
116.
In my judgment, Mr Byrne had mentioned sufficient of his dealings with
Mr Murrell to Ann Copsey and Mr Howlett to make it plain that this was an open
and above- board lead that he was pursuing for the claimant’s benefit and not
for his own.
117.
The meeting of 19 October 2015 brought about a fundamental shift in
relations between Mr Byrne and the claimant. At that pre-planned meeting with
the pre-set agenda, which took place between Mr Murrell and Mr Byrne on the
afternoon of 20 October 2015 in London, Mr Byrne explained to Mr Murrell that
his employment with the claimant was likely to, or was, coming to an end. I am
satisfied that it was at that meeting that the conversation turned to starting
a medical accountancy practice. The conversation again turned to Mr Byrne’s
medical contacts during which Mr Byrne explained that he had access to a large
database that contained contact details for most of the consultants in the UK.
In my judgment, that was plainly a reference to Specialist Info, a directory or
database which he could access through his brother, and not to the much more
limited database of the claimant.
118.
I am satisfied that Professor Byrne’s login details were even used by
some staff at the claimant’s offices to access the Specialist Info directory or
database. Professor Byrne’s login details were not secret and were used to
gain access, even though the claimant may well have had its own properly paid
and fully paid subscription and its own licence or licences, to access that
Specialist Info directory or database using its own dedicated login details.
119.
I now, therefore, turn to the emails and events after Mr Byrne’s
departure from the claimant’s offices on 21 October 2015 to see whether they
evidence any past or anticipated unlawful extraction of the claimant’s
database. On 22 October 2015, Mr Byrne emailed Mr Murrell to give him his
Hotmail email address and a “very rudimentary stab at a plan” for the
accounting business. That was no more than half a page comprising anticipated
income for the financial years 2015/16, 2017 and 2018 for “NewCo”.
120.
One email which the claimant suggested indicated Mr Byrne and Mr
Murrell’s continued interest in and use of extracts from the claimant’s
database was sent by Mr Murrell to Don Jewell, a director of MedSol Healthcare
on 23 October 2015. Mr Murrell had previously been a director and
shareholders of MedSol.
121.
In that email Mr Murrell gave the breakdown by primary specialty of the
1,500 consultants described by Mr Byrne at his first meeting with Mr Murrell on
23 September 2015. The claimant suggested that this information had been
imparted by Mr Byrne to Mr Murrell only at their second meeting on 20 October
2015 because of the proximity in dates between the meeting and the email, and
indicated an intention to extract or misuse the claimant’s data because the
emails stated of the doctors referred to that “All of these are compliant.
What vacancies do you have to match?”
122.
In my view, not only is it apparent from this email dated 23 October
2015 that Mr Murrell has still not grasped the nature of the claimant’s
business, but its timing about one month after the information was first
imparted on 23 September 2015 was explained, to my satisfaction, by the fact
that the MedSol business was being sold and Mr Jewell did not have time to deal
with introductions sooner.
123.
Subsequent emails between Mr Murrell and Mr Jewell up to 27 October 2015
again made it plain that those two men still erroneously thought that the claimant
was dealing with consultants who would be willing to do locum work.
124.
Indeed, the first time that Mr Byrne saw that exchange was when it
was forwarded to him by Mr Murrell on 27 October 2015 with a suggestion by
Mr Murrell that Mr Byrne should meet Mr Jewell. Mr Byrne was not
willing to do so until he had first completed a settlement with the claimant,
which he then anticipated would be achieved by 10 November 2015.
125.
The claimant questioned the truthfulness of Mr Murrell and Mr Byrne’s
account, that they were not previously speaking specifically about the claimant’s
database, by reference to an email sent by Mr Byrne to Mr Murrell on 29 October
2015 in which Mr Byrne stated “Have just obtained a database with the email
addresses to 75 per cent of the consultants in the UK, so mail merge should be
do-able now too.”
126.
However, first of all, the database referred to in that email could not
have been the claimant’s database, which was a much smaller one than the one
described there. Secondly, although that email was capable of the
interpretation that Mr Byrne had not previously had access to that database, I
accept his explanation that he was seeking merely to “show off” as a recent
acquisition something which he had had access to for some time. Mr Byrne and
staff of the claimant had, of course, been using the Specialist Info directory
and database for some time and had been using Professor Byrne’s log in details
to access it. Accordingly, as a matter of fact, Mr Byrne had not just
obtained the database but rather was trying to impress Mr Murrell with the
freshness of his information.
127.
On 10 November 2015, Mr Murrell met Mr Byrne and Professor Byrne again
at St Pancras. The wide-ranging agenda for that meeting is at core bundle
1, page 177. I accept the evidence of Mr Byrne, Professor Byrne and Mr Murrell
that at this meeting Professor Byrne explained how they intended to use their
networks to grow the accountancy business.
128.
The following day, 11 November 2015, Mr Byrne prepared a business plan,
which he sent to Mr Murrell. The business plan is to be found between pages
200 and 210 of core bundle 1, with the target list of 44 consultants and their
primary specialty appearing at page 211. Of those 44 names on the target list,
39 appear in the founder member shareholder list, along with their specialty,
within the 2010 annual report. The remaining five names are all associate
members well known to the applicant and/or his brother. For example, one of the
five associate members was Mr Montague, who operated on the father of Mr Byrne
and Professor Byrne in Spain, when he needed surgery on his prostate. I am
satisfied that these 44 consultants were well known to the first defendant and
Professor Byrne and Mr Byrne chose them because he knew that they would be
willing to help him in his new venture.
129.
On 18 November 2015, Professor Byrne had his meeting with Paul Howlett.
On 20 November, Mr Byrne signed his letter of resignation and the
consultancy agreement referred to in that was signed on the same date by Ms
Copsey.
130.
On 23 November 2015, Professor Byrne and Mr Byrne agreed on a
strategy whereby Professor Byrne would make the first 30 or so telephone calls
to the selected consultants to warm them up to a subsequent approach by Mr
Byrne in connection with the proposed tax and accountancy services. On the
same day Professor Byrne, Mr Byrne and the second defendant entered into Heads
of Agreement to organise a joint business venture for the provision of accountancy
and tax services to the UK healthcare industry.
131.
That agreement has also been relied upon by the claimant as evidencing
Mr Byrne’s past extraction from or intention to extract data from the claimant’s
confidential CRM database. Clause 3 of that agreement recorded that Mr Byrne
and Professor Byrne would provide “knowledge of, relationships with and a
database of doctors which would be mined by Charles Byrne for targets for the
joint venture.”
132.
First, it is important to observe that the database was to be provided
by both Mr Byrne and Professor Byrne. It must, therefore, have been one
to which both had access. I am satisfied that that did not refer to the claimant’s
database. Secondly, when read in the context of the emails discussing the
database, especially Mr Byrne’s email on 29 October 2015, it is apparent
that what was being discussed was a database of the 75 per cent of the
consultants in the UK, namely one to which Professor Byrne had given Mr Byrne
access. The Specialist Info directory/database alone contains the details of
some 90,000 doctors.
133.
On 18 January 2016, Mr Murrell emailed Zebra Finance in which he
referred to a database of 12,000 consultants, 1,500 of them known personally to
Mr Byrne, those consultants having a cosmetic surgery specialism. Given that
the claimant did not provide cosmetic surgery, it is unlikely that this is a
reference to the claimant’s database. Moreover, it seems to be a repetition of
what Mr Byrne told Mr Murrell at their first meeting on 23 September 2015.
134.
Having reviewed the email correspondence extensively, and in particular
the references therein to databases, I am satisfied that up until 20 October
2015 Mr Murrell was writing to Mr Byrne as CEO of the claimant to discuss
potential business opportunities, which, in fact, the claimant did not wish to
pursue. During that time any reference to a database which included the claimant’s
database was simply a generic description of a list of doctors and their
specialties.
135.
Thereafter, I am satisfied that references to databases referred to
using Specialist Info and the respective personal networks of Professor Byrne
and Mr Byrne to grow a client base of the new business.
136.
However, as Professor Byrne himself made clear to Mr Byrne in his email,
dated 23 November 2015, merely sending cold call emails to the email addresses
of consultants simply would not work. A personal recommendation or request was
required, hence Mr Byrne’s preparation of a process plan, which included
Professor Byrne’s telephoning consultants likely to help Mr Byrne.
137.
The personalities of Mr Byrne and Ann Copsey are quite different.
Whilst I am sure that both are and were hardworking and highly motivated
individuals, Ms Copsey is a successful entrepreneur who expects results and
drives her business hard to achieve them. Mr Byrne has a natural aptitude for
establishing and maintaining personal and commercial relationships, especially
with doctors and consultants. I consider from my observation of him in
the witness box that he has strong inter-personal skills, enhanced by a natural
affability and sense of humour. He described how even during the trial he came
out of court to receive jokes texted to him by Roger Ackroyd, one of the
founder member consultants on the database he knew well. I regard that
impromptu evidence by Mr Byrne as an illustration of his personal relationship
with many of the consultants with whom he worked when working for the claimant.
I
now turn to the downward spiral in the relationship between Mr Byrne and the claimant.
138.
Against the background of concern over the claimant’s declining
profitability, Mr Byrne’s role had been changed or restructured by Ms
Copsey in December 2014.
139.
As a result of that change, although he remained to the outside world
the claimant’s CEO, his role internally became effectively that of Sales
Director charged with the responsibility of finding new employment-related,
corporate healthcare business from FTSE 100 companies or from private
healthcare insurance companies of the like of Vitality or AXA.
140.
I acknowledge that Mr Byrne was troubled by this change in December
2014. Within the organisation Ms Copsey then, effectively, became the CEO and
Mr Byrne reported to her instead of, as previously, to the Group Chairman,
Paul Howlett, as had been originally prescribed by his service contract. Mr
Byrne, then aged 45, was concerned that if Ms Copsey were to retire she might
be replaced by a new outside CEO rather than moving Mr Byrne back into his
traditional role. Mr Byrne was sufficiently concerned about this change
to forward to his wife an email recording his official alteration in the
structure of his employment.
141.
Nevertheless, I am satisfied that there was not the slightest intention on
his part to leave the claimant, nor any expectation that he would be dismissed
by the claimant because, as he put it, he was part of the furniture and he
expected to be working there for the rest of his life. However, I am
satisfied that he did not relish being, as Mrs Byrne put it, micro-managed
by Ms Copsey.
142.
I am satisfied that the first defendant first formed the fixed view
that he was going to leave the claimant on 29 September 2015, long
after the download in June 2015, as a result of unhappiness
which seems to have stemmed from meetings in July, August and on
28 September 2015 between him and, among others, Ann Copsey.
143.
Accordingly, I reject the suggestion made by Ms Sen Gupta,
counsel for the claimant, that events in December 2014 had so disillusioned
Mr Byrne that he had resolved to leave the claimant and so had downloaded
or extracted the data in June 2015, some six months later, in order
to use it for his own purposes after his then anticipated departure from the
claimant.
144.
Those meetings in July, August and September 2015 profoundly upset
Mr Byrne because he felt that he was being wrongly and unfairly singled
out and stigmatised for not generating more business. He explained at the July
meeting how, given the strength of the competition from a strong brand
like BUPA, it was very hard even to get in to meet the director or
executive responsible for employment‑related healthcare provision in
large public companies in order to advance the claimant’s case, despite the
most strenuous of efforts.
145.
One question, which it is not necessary for me to resolve, is precisely
why Mr Byrne’s employment with the claimant came to such a sudden and
rapid end. I merely refer to this decline because it is said to have some
relevance to the motive behind the alleged wrong‑doing by Mr Byrne.
146.
As I have indicated, despite the turbulence created by the events
of December 2014 and May and August 2015, I am satisfied that Mr
Byrne had not intended to resign and would not have resigned voluntarily from
the claimant as things stood even in August 2015. He intended to remain
at the claimant for the rest of his working life. He explained how the
business had something of a family feel to it, with two members of the
Byrne family and two members of the Howlett family involved along with Ms
Copsey.
147.
Yet, on 29 September 2015, the day following his meeting with
Ann Copsey and Greg Clarke, to which I make reference below, he e‑mailed
his wife to tell her that he wanted “A reasonable pay-out and to leave”.
148.
Even then, although Mr Byrne had formed a fixed intention to
leave, he highlighted no timetable within which that was to occur, nor anything
that he proposed to do by way of initiating the end of his employment.
149.
For her part, Ms Copsey had said that consideration had been given in
2014 by her and Paul Howlett to dismissing Mr Byrne for poor performance
and that the claimant’s concerns continued in 2015 and therefore informed the
direction of the meetings in July and August 2015. Against that, there
never had been any disciplinary proceedings against Mr Byrne alleging poor
performance or misconduct in the 10 years he was there. Indeed, Ms Copsey
herself was not immune from criticism by some of the consultants.
150.
In his note of his meeting with Ann Copsey and Greg Clarke, which took
place on 28 September 2015, Mr Byrne noted Ann Copsey’s saying
to him: “I know very well what you want, you want me out and you in.
That’s what you want”.
151.
Whatever happened on 28 September, I observe that the
following date, the 29th, Mr Byrne e‑mailed his wife, indicating
that he wanted a reasonable pay-out and to leave.
152.
What happened thereafter is not immediately apparent because, triggered
by no further acute event or circumstance which is obvious to me, apart from an
ongoing power struggle over who was to be the CEO of the claimant, Ms Copsey
sent an email to Mr Byrne on 14 October 2015 asking him to attend
a without prejudice meeting on 19 October 2015 with Paul Howlett and Ann
Copsey. This did not bode well for a long‑term future for
Mr Byrne with the claimant.
153.
Mr Byrne, Mr Howlett and Ms Copsey then met on 19 October to
discuss Mr Byrne’s employment and its possible termination.
154.
I accept Mr Byrne’s evidence that Paul Howlett told him at
that meeting that he thought that Mr Byrne was tired and that he should
take a three to six months period to rest and play golf, and that after
that he could come back as a non‑executive director and charge
a daily consultancy fee for work on top of the £15,000 per annum
retainer. He was told that he was expected to work for a few days to wrap
things up, but that after that he could go home. Paul Howlett has not given
evidence about that conversation, so I only have Mr Byrne’s side of
it.
155.
Included in the work, which Mr Byrne was expected to do over the
ensuing couple of days, were to a couple of meetings in his diary
which he said he would honour. I find that these refer to the two
prearranged meetings which Mr Byrne had in London for the following day,
20 October, one of which was with Mr Murrell to discuss the Norris
scheme, a form of tax avoidance scheme. On 20 October 2015, the day
following Mr Byrne’s meeting with Ms Copsey and Mr Howlett, Mr Byrne
went to London and did attend those meetings. That afternoon, he had his
second meeting with Mr Murrell. This was about four weeks after his first
meeting with him on 23 September 2015.
156.
At some time before 2.45 pm on Wednesday, 21 October 2015,
Mr Byrne was called by Ms Copsey to a meeting in the claimant’s board
room. According to Mr Byrne’s email to her at 14.47 on that
day, she alleged that he had: “acted unprofessionally and in collusion” with
Professor Byrne.
157.
Precisely what that allegation related to is unclear. It may have harked
back to a conversation that Professor Byrne had with Neil Howlett in
August 2015 when he, Professor Byrne, expressed his dissatisfaction
at the way in which the claimant had treated Mr Byrne, carrying with it,
at the very least, the veiled hint, if not threat, that the claimant might
suffer damage in the event of withdrawal of support by Professor Byrne and
other disgruntled consultants who were members.
158.
I consider that the precise content of that conversation can no
longer accurately be recalled either by Neil Howlett or Professor Byrne.
Although it took place in the second week of August 2015, Neil Howlett
only committed his recollection of it in writing in an email to Ann Copsey on
12 November 2015. The relevant passage of that email stated:
“He
(that is Professor Byrne) wanted to make clear to me that he was
very dissatisfied with you and I believe it was more from
a personality clash point of view which he said had felt for a long
period of time. He made it clear that if there was anything to happen to his
brother and his relationship with the business that he would do everything in
his power to damage the business. He also mentioned something about how he was
pivotal in getting the business off the ground in the first place. He said he
felt he could do much to damage the business and threatened to use this power
unless Charles was happy. He used many expletives including the F and C word
on a number of occasions to vent his anger and made it clear he felt you
were ...” and then Mr Howlett agreed that the word ‘not’ was missing
from his email “... you were not good for the business”.
159.
When giving evidence, Professor Byrne apologised to Neil Howlett
for the language he used in that conversation. However, he was adamant that he
had not issued any threat to harm the claimant, a company in
which he himself still held shares. This was not the first time that
Professor Byrne had alluded to that conversation. In his email to Ann
Copsey on 23 October 2015 Professor Byrne wrote:
“On
an unrelated issue, I was flabbergasted to receive a call from
Charles yesterday when he raised a phone call that had allegedly taken
place between myself and Neil Howlett. The alleged conversation and the way it
has been described to me did not happen and I find such an allegation
inflammatory and insulting. I would like to understand more about it when
we speak and some assurance that such allegations will not be repeated.”
160.
It is not necessary for me to resolve the precise terms of that
conversation because I regard both Neil Howlett and Professor Byrne
as honest men whose recollections may genuinely differ about what was said.
161.
Nevertheless, I find that Professor Byrne was upset and angry,
as the tone and language used indicated, and that that anger was directed
principally against Ann Copsey. However, I consider it unlikely that he
made or intended any direct threat consciously to harm the claimant, although
I believe the innuendo that harm might be caused was in the air, because
that is consistent with (1) the letter, dated 30 October 2015,
written by Mr Byrne’s employment lawyers to the claimant’s employment
lawyers, and (2) with Professor Byrne’s letter of resignation, dated 27
September 2016.
162.
In the former letter, the following paragraph was to be found:
“There
is a different perspective to consider in addition to the legal ones. As
your clients will no doubt confirm, my client’s brother, Ged Byrne, is Chairman
of the Medical Directorate and, in effect, the most senior doctor in the
group. Your client should carefully consider the consequences of any unfair or
unlawful action against my client in respect of the stakeholders in the
business (the medical practitioners) in the context of our continual support to
the business going forward.”
163.
Until his resignation on 27 September 2016,
Professor Byrne had been chairman of the claimant’s medical directorate,
in effect the most senior doctor in the group of members.
164.
In his letter of resignation, Professor Byrne wrote:
“It
is now my opinion that I myself have spent several years inadvertently
misleading members, clients and the public as to the honesty and integrity of
the company”.
He
added that serious questions have to be asked before the claimant can be
considered a “fit and proper provider” of NHS services. He concluded his
letter by saying that:
“I intend
simply to express my opinion that Alliance Surgical can no longer be seen as an
ethical organisation and that I was wrong to inform them otherwise.”
That
seems to have elicited a letter before action, at some later stage, from
solicitors acting for the claimant and, of course, provided some basis for the claimant’s
argument that Professor Byrne was capable of issuing threats to the
claimant.
165.
At the meeting on 21 October 2015 Mr Byrne pointed out to Ann Copsey
that he had “remained completely professional throughout this entire difficult
episode” and that he had gone through his “diary with you this morning and
followed up on meetings which I had yesterday, as agreed”. He made it plain
that he was not responsible for comments made by others, his brother included.
He concluded his email by saying that he looked forward to receiving the letter
offering him the terms of departure which had been referred to at the meeting
on Monday the 19th and which he anticipated receiving that day.
166.
Shortly after half past three on the afternoon of Wednesday, 21 October,
Ms Copsey emailed a letter headed “Without prejudice and subject to contract”
to Mr Byrne. It contained an offer by the claimant upon termination of his
employment by mutual agreement to pay him six months’ salary of £70,000 in lieu
of notice, to allow him to retain his company car until 1st June 2016, to
continue to pay his private medical cover for six months and to contribute £500
plus VAT towards his legal costs and to provide an agreed reference.
167.
It went on to state that in the light of his continued shareholding in
the company, 300,000 ordinary shares, together with the specialist knowledge he
had accumulated over time with the claimant, the claimant would be pleased to
offer him the position of non-executive director subject to further discussions
at a separate meeting. The position would entail his attending formal board
meetings and would carry a salary of £15,000 per annum for a period of 12
months to be reviewed annually thereafter.
168.
The letter also offered the prospect of Mr Byrne undertaking certain
projects for the claimant thereafter on a self-employed basis. The offer
contained in the letter remained open for acceptance until, in the first
instance, close of business on Tuesday, 27 October 2015.
169.
On the same day, and probably after receipt of this letter, Mr Byrne
went to see Ms Copsey and told her he did not think it was in the best
interests of the claimant for him to continue knowing that he was leaving. Mr
Byrne’s evidence was that Ms Copsey agreed. The claimant’s case is that he was
granted a limited leave of absence to take legal advice. In any event, Mr
Byrne went home and I am satisfied that that was his last day in the claimant’s
office.
170.
On 23 October 2015 Mr Byrne’s employment solicitors rejected the offer
and sought a six-month ex gratia payment together with a payment in lieu of
notice. This was rejected by the claimant’s lawyers on 30 October and further
unproductive correspondence took place between the solicitors on that date.
171.
The position at close of business on 30 October 2015 was that Mr Byrne
had to turn up at work at the normal time of 9 a.m. on Monday, 2 November 2015
and that the deadline for acceptance of the claimant’s offer was extended to
Friday, 6 November 2015.
172.
However, it appears from what I shall call the “Marrakesh email chain”
that Mr Byrne never did return to work and went on sick leave, even before
14 November 2015 when a sick note was issued covering his absence to the end of
the month.
173.
Apart from the correspondence passing between the respective employment
solicitors to which I have referred, it appears that parallel negotiations were
going on between Professor Byrne on behalf of Mr Byrne and Paul Howlett on
behalf of the claimant.
174.
After attempts which began on 23 October to arrange a mutually
convenient meeting between Paul Howlett and Professor Byrne, it seems that they
met on 18 November 2015 in Birmingham.
175.
This culminated in a negotiated settlement between the claimant and Mr
Byrne on 20 November 2015, whereby Mr Byrne entered into a consultancy
agreement with the claimant which would remain in force until 31 March 2016.
176.
Under that agreement Mr Byrne was to receive £35,000 on the signing of
the agreement and the second payment of £40,000 no later than 16 March 2016.
In exchange Mr Byrne surrendered all his rights to financial compensation under
his service agreement. Moreover, Mr Byrne was allowed to keep his company car
until 30 June 2016 and to enjoy the benefit of private health insurance for the
period of the consultancy agreement.
177.
During those negotiations, I am satisfied that Professor Byrne disclosed
to Paul Howlett Mr Byrne’s plans to go into business offering accountancy and
tax services and advice to doctors. In his email to Professor Byrne on 18
November 2015, Paul Howlett stated:
“In
addition, his 12 month non-compete clause would only kick in at the end of this
period ...” I infer the end of the consultancy period “... so it may
further delay matters in regards to Charles’s plans for his new consultancy”.
178.
This prompted Professor Byrne in his email to Paul Howlett on 19
November to write at page 219 in core bundle 1:
“Can
you confirm that we can agree a wording around competing with Alliance Surgical
as discussed. Shall I draft something and send to you?”
179.
On the same day Paul Howlett replied:
“Regard
non-compete clause, we would need to understand this, e.g. why is this a
problem? We would definitely be concerned if Charles plans to contact our
members using contact details gleaned from AS. After all, if he is planning a
service to consultants there are 19,000 out there we don’t work with, so why
not target those rather than piggy back off AS confidential information? This
would be a direct breach of one of the most important ...” the next word is
‘convenience’ but it must be a misprint “... convenience in his contract.
It is highly important that Charles recognises that he must not breach that
confidentiality, which includes not contacting AS members under any
circumstances, as we would definitely act against him if he did. I think it is
better to spell this out loud and clear now and avoid any expensive mistakes in
the future.”
180.
In fact, Mr Byrne had sought and obtained legal advice on the ambit of
the restrictive covenants and he understood that he was not prevented from
contacting the claimant’s members for non-competing business, provided that he
did not use or extract from the claimant’s database for that purpose.
181.
I accept Professor Byrne’s evidence that he did not seek to negotiate
away any of Mr Byrne’s restrictive covenants in his service contract. As the
email exchange indicated, he sought clarification about the application to Mr
Byrne’s new business venture.
182.
As a result of those negotiations, Mr Byrne resigned from his employment
with, and directorship of, the claimant with effect from 30 November 2015.
183.
The target list prepared by Mr Byrne and the inferences which I am
invited to draw from it, therefore, form the crux of the claimant’s case.
184.
Because of the allegedly striking similarities in last name,
non-alphabetical name order, colour, font size, style and style between the
target list and some entries in the claimant’s database, the claimant has urged
me to conclude that Mr Byrne retained a spreadsheet containing the entire list
of the claimant’s consultants and their contact details from which Mr Byrne
selected and extracted the 44 consultants and their specialties on the target
list.
185.
The claimant submitted that it would be ludicrous and certainly
implausible for the similarities to be explained away successfully by Mr Byrne
merely as a coincidence.
186.
However, it was eventually accepted on behalf of the claimant that, if I
believe Mr Byrne and Mrs Byrne about how the target list was created, then the
claimant’s claim, at least under the Database Regulations, would fail.
187.
I have already alluded to the many ways in which the claimant has
pleaded its case against the defendants. At the outset of the trial and,
indeed, at the pre-trial review there was disquiet expressed by Mr Hall on
behalf of the defendants about the way in which the claimant’s claim was
pleaded, when it came to pinpointing what the claimant was alleging actually
constituted the claimant’s confidential information.
188.
On the morning of the trial, Ms Sen Gupta sought to amend the
particulars of claim to allege that the contents of each data field contained
on the database itself considered in isolation, or at least those containing
contact details, was confidential. Thus, it seemed that it was being suggested
by the claimant that, even if Mr Byrne had independently obtained a
consultant’s email address from a source unrelated to the claimant’s database,
that information itself still remained the claimant’s confidential information,
if that information also appeared on the claimant’s database.
189.
Mr Hall accepted that the claimant’s database as an entire compilation
constituted confidential information. He also accepted that if Mr Byrne had
copied the data or extracted the data on the target list from the claimant’s
database or from a spreadsheet derived from it, then that would have been a
misuse of confidential information.
190.
Mr Hall, however, rejected the proposition that Mr Byrne could be
restrained from contacting consultants on the claimant’s database merely
because they were listed and particularised on the database. He submitted that,
if Mr Byrne were able to contact them using contact details which were known to
him personally or were discernible and obtained from a public directory
database then, provided he did not use the claimant’s database, he would be
entitled to do so.
191.
Accordingly, in relation to this aspect of the case I ruled at the start
of the trial that the trial will proceed on the narrower and agreed basis of
whether Mr Byrne had extracted the claimant’s database or not, especially in
the creation of the target list.
192.
If Mr Byrne had used or extracted the database to compile the target
list, then that would, as Mr Hall accepted, be (1) a misuse of confidential
information by him; (2) also a breach of the Database Regulations, provided
that what the defendant supposedly did amounted to extracting or reutilising a
substantial part of the contents of the database within the meaning of Regulation
16 of the 1997 Regulations.
193.
Although these claims will have to be revisited in the light of this
judgment, there are nevertheless some points which I should still mention under
this topic.
194.
First, whilst it may have seemed to Mr Byrne that he was, effectively,
dismissed on 19 October 2015 and it is plain that the writing was on the
wall for all to see, Mr Byrne’s contract of employment did not in fact
come to an end on 19 October 2015. A period of negotiation began on that date,
even though it was on the cards that his relationship with the claimant would
come to an end. However, technically his employment and directorship only
ended on 30 November 2015.
195.
Secondly, I am satisfied that all communications and discussions which
Mr Byrne had with Mr Murrell up to and including 20 October 2015,
including their first meeting on 23rd September 2015, were conducted with him
as CEO of the claimant, largely in connection with promoting the Norris scheme,
which Mr Byrne thought might be of interest to the claimant’s directors and to
the consultants. In my judgment, they did not represent Mr Byrne using the
claimant’s time and resources to further his own personal interests at the
expense of the claimant.
196.
That conclusion is supported by the fact that, on 24 September 2015, Mr
Murrell’s office had sent to Mr Byrne an Introducer Agreement for completion
not by an individual, but by a limited company. Mr Murrell explained that he
has two versions of that agreement dependent upon the status of the party
contracting with him, one version for an individual party, another version for
a party which was a limited company. It was the latter type of agreement that
had been sent to Mr Byrne because, I am satisfied, he was being sent it as the
claimant’s Chief Executive Officer. Indeed, Mr Byrne discussed the Norris
scheme with his co-directors, and the claimant, having sought professional
advice from Grant Thornton, decided against it. I accept the evidence of Mr
Byrne and Mr Murrell on that issue.
197.
It was only following his meeting with Ms Copsey on 21 October that Mr
Byrne finally resolved that he could not, consciously and loyally, continue to
serve the best interests of the claimant. He then told Ms Copsey of this
decision on that same day, his last day in the office. She agreed to his
absence on full pay at that stage and I understand he remained on full pay
until 30 November 2015.
198.
At one stage it was suggested to Mr Byrne that he had visited the
claimant’s premises on Saturday 24 October 2015 and logged into the claimant’s
computerised systems. This suggestion was based upon an analysis conducted by
the independent computer expert, Mr Wells. He had interrogated the log-in
details relating to Mr Byrne’s account with the claimant’s server.
199.
At paragraph 2.2.84 of his first addendum report, Mr Wells indicated
that the claimant’s system recorded 23 log-ins by the Charles Byrne account
between 5 January 2015 and 24 October 2015, although the system did not keep
records of the reports produced by the users.
200.
This gave rise to the understandable and proper question put to Mr Byrne
by Ms Sen Gupta about whether Mr Byrne had in fact visited the claimant’s
premises on Saturday 24 October 2015 and accessed the computer systems.
201.
Mr Byrne answered that question by denying emphatically that he had
visited on that date, adding that the claimant’s offices were open on the
Saturday and that members of staff would have seen him. Moreover, he indicated
that his access or proximity card would have recorded his entry and exit to the
claimant’s premises and/or that he would have been captured on CCTV had he been
there.
202.
Although there was no evidence on it, it was suggested by Ms Sen Gupta,
on instructions, that the proximity cards did not record data relating to
entrance to or exit from the building, although it was accepted that the premises
were open and were staffed on Saturdays.
203.
I accept Mr Byrne’s evidence that his last day at the claimant’s offices
was on Wednesday, 21 October 2015 and that he never returned. This begs the
question then: who did use his log-in details on Saturday, 24 October 2015? It
was certainly Mr Byrne’s belief at trial that others had access and used his
log-in details and email account even after he had left.
204.
The only witnesses who gave evidence for the claimant were Ann Copsey
and Neil Howlett.
205.
Paul Howlett did not give evidence, nor did any members of the
claimant’s staff responsible for IT management or maintenance of customer
database. Nor was any consultant member, founder or associate, called to give
evidence for the claimant, even though one of them, Professor Braithwaite,
wrote an email to Ms Copsey giving an account of the disputed conversation,
which he said he had with Mr Byrne but which Mr Byrne denied.
206.
I cannot and, therefore, do not draw any inference adverse to the
claimant from the claimant’s decision to confine its oral evidence to those two
witnesses. However, where there is disputed evidence, and I only see and hear
one witness giving her or his side of the narrative, then it is likely to be
accepted unless it is a patently incredible account or it conflicts with other
evidence which I am satisfied is correct and preferable.
207.
Accordingly, to resolve the central and determinative issue in this
case, I must return to the question of whether Mr Byrne extracted the contents
of the target list from the claimant’s database.
208.
However, before doing so, given the nature of the allegations and
cross-allegations which were made against the character of the protagonists in
this case, it is necessary for me to give my assessment of the witnesses who
gave evidence before me.
209.
In my judgment, Neil Howlett and Professor Byrne are witnesses of
transparent honesty. As honest witnesses, their recollection will and did
differ over some events, such as the conversation between them in August 2015
which I have detailed above.
210.
In the end, the difference between them related to inferences which Mr
Howlett drew from the tone and language used by Professor Byrne, rather than a
conflict of recollection of what was actually said by way of any express
threat.
211.
In any event, the passage of time between the conversation in August and
Mr Howlett’s reducing it to writing in November leaves ample room for a
genuine difference of recollection.
212.
Mr Howlett confirmed that Mr Byrne had disclosed his conversations with
Mr Murrell about the Norris scheme. He also compared and contrasted for me the
personalities of Ann Copsey and Mr Byrne. Save where it conflicts with my
findings in this case, I accept the evidence of Mr Howlett and Professor Byrne.
213.
I now turn to Professor Byrne’s evidence in greater detail.
214.
Whilst Professor Byrne accepted that he could be criticised for not
adhering to the terms and conditions of use of the Specialist Info directory/database
by allowing others to use his log-in details in respect of his paid
subscription, this does not affect my assessment of his honesty, accuracy and
reliability as a witness. Moreover, at times, the claimant also appears to
have benefited from the use of his log-in details.
215.
I specifically find that he did not know of the scraping/harvesting
which had been carried out by Mr Byrne to download substantial quantities of
data from the Specialist Info site. Nor do I regard his email to Specialist
Info, indicating that he did not know anything about the download, as anything
other than a cautious and guarded reply until he had been able to investigate
all the facts himself. He wrote that reply on a flight, and the email sent to
him had raised the suggestion that there might be a charge for over £5,000
for the information which had been downloaded.
216.
I have remained mindful of the warm and close family relationship
between Professor Byrne and Mr Byrne and, therefore, of his tendency and natural
willingness to stand by and help his brother in the case.
217.
I have had, therefore, to look carefully at what he has said, to make
sure that he is not simply and slavishly helping his brother. However, in
giving evidence, Professor Byrne struck me as very comfortable in the witness
box, open in his answers and candid in his attitude. He gave his evidence in a
natural and flowing style. In summary, I regard him as an honest, accurate and
reliable witness.
218.
I have no doubt at all, given his eminence and standing, that he could
call upon the support of many consultants for Mr Byrne, if he asked them to do
so. He had already compiled hundreds, if not thousands, of contact details on
his various electronic devices. Neither he nor Mr Byrne needed the
claimant’s database, given the personal contacts upon which they could call for
assistance.
219.
I subjected the evidence of Mrs Nicola Byrne to particular scrutiny,
again, given her part in the compilation of the target list and her position as
the wife of the first defendant. She is undoubtedly a very loyal wife. Having scrutinised
her evidence with care, I also conclude that she is a manifestly truthful
witness.
220.
At a time when the computer expert’s first report stated that the purple
colour used in the heading of the target list - the same colour as appeared on
some but not all of the reports prepared from the claimant’s database - was not
in the standard colour palette of any Microsoft product, Mrs Byrne challenged
that assertion directly. Knowing that was the expert’s conclusion, Mr and Mrs
Byrne’s explanation, that the colour purple was indeed picked from the standard
dropdown palette on the version of the Microsoft Office they used, was
proffered in response.
221.
Tenaciously, Mrs Byrne pursued her enquiries, only to demonstrate that
the expert was incorrect. She demonstrated how, in the version which she said
they had used, namely the 1997 to 2003 version of Microsoft Office, the purple
colour was present in the standard colour palette and available for selection.
When this was pointed out to him, the expert conceded the point.
222.
Ms Sen Gupta, in her submissions, said that this was no point of any
substance, because it still left a 1:41 chance of choosing precisely the same
colour that appeared both on the target list and the claimant’s database
reports. I have had regard to that statistical argument as well.
223.
Nevertheless, the strategy adopted by Mr and Mrs Byrne to challenge
head-on that assertion by the expert was a high risk one. She and Mr Byrne,
therefore, substantially risked their credibility on the expert changing his
opinion, as ultimately he did. I regard that as a powerful indicator of their
honesty and their accuracy of recollection of material events.
224.
There are, however, two further matters, perhaps peripheral to the central
issue in the case, which also satisfy me as to the honesty and accuracy of Mr
and Mrs Byrne in their description of how they drew up the target list.
225.
While Mr Byrne was giving evidence, Mrs Byrne and Professor Byrne were
not in court. That had been agreed between counsel. Ms Sen Gupta was
cross-examining Mr Byrne on why there had been no disclosure of the old HP
laptop or mention of it in the disclosure list. After all, this was the
computer on which the target list was said to have been prepared by Mr and Mrs
Byrne.
226.
It was suggested by Ms Sen Gupta that the alleged disposal of the HP
laptop in March 2016 was very convenient for the defendants, rather like the
Samsung phone, because March 2016 was a date which preceded the claimant’s
letter before action in May 2016.
227.
To that suggestion, Mr Byrne gave the impromptu reply that the computer
had been disposed of via Currys, which apparently is willing to accept and
dispose of computers to ensure that the data on hard drives do not fall into
the wrong hands.
228.
Mrs Byrne, therefore, was not in court when he gave that answer. When
she, in turn, was cross-examined, she described how she had taken some old TVs
and the computer to Currys for disposal, “but they do not give you a receipt”,
is what she said.
229.
I have, of course, considered the possibility that this was a response
rehearsed by Mr and Mrs Byrne. However, in my view, this was a genuine insight
into an honest witness seeking to give the Court an accurate and reliable
account of events.
230.
The third matter, though not conclusive in itself, relates to the fact
the file type or suffix for the file containing the target list on 11 November
2015 related or was capable of relating to the 1997-2003 edition of Microsoft
Word.
231.
Accordingly, I accept the evidence of Mrs Byrne. I find that she
is an honest, accurate and reliable witness. I accept her account of how the
target list came to be prepared in the kitchen on 11 November 2015, and that no
use whatsoever had been made of any extract of the claimant’s database in its
compilation.
Mr
Murrell
232.
Mr Murrell is obviously a seasoned and hardened businessman, who did not
display the openness of personality which Mr Byrne, Mrs Byrne and Professor
Byrne demonstrated. An example of his hardened attitude was that he did not
respond to the letter before action from the claimant’s solicitors in May 2016 although,
in fairness to him, the understanding which he had was that it was going to be
dealt with by solicitors instructed by Mr Byrne.
233.
His lack of understanding of the nature of the claimant’s business is
apparent from the emails. I accept his evidence that he was given the
breakdown of the specialties and the number of specialists on the claimant’s
list on the 23 September 2017. That breakdown was well known. Even Ms Copsey
knew about it. It therefore seems to be to me to be highly likely that it
would form part of the sales pitch that Mr Byrne would give to Mr Murrell. I
have no doubt but that Mr Murrell thought that he was dealing with the CEO of
the claimant in that capacity, until he discovered Mr Byrne’s change of fortune
at their meeting on 20 October.
234.
Accordingly, I am satisfied that there was nothing sinister or untoward
about his coining of the phrase “database” to refer no more than to the claimant’s
contacts with doctors. After 21 October 2015, the confusion in his use of the
word “database” remained. However, it was Professor Byrne’s contacts, Mr
Byrne’s personal contacts and the Specialist Info directory/database which were
going to provide the contacts that were going to be mined by Mr Byrne.
235.
I am satisfied that neither Mr Murrell nor the second or third defendant
ever received or used any extract from the claimant’s database.
236.
I have to say that I did not find Ms Copsey to be an accurate witness.
237.
First, she had a tendency to make sweeping statements in her witness
statements without checking the underlying detail. That was demonstrated on a
number of occasions by documentary material and/or independent evidence.
238.
Secondly, I felt that she understated the contribution which Professor
Byrne, and indeed Mr Byrne, made to the claimant and, in particular, Mr Byrne’s
personal knowledge of the founder members, despite his engagement with them for
over 10 years.
239.
Thirdly, I consider that, both in her written and oral evidence, she was
inclined to overstate negative aspects of her perception of Mr Byrne. A simple
example is that in the Particulars of Claim, which she had signed, it was
suggested that Mr Byrne had retained the iPad for an excessively long period of
time, when he in fact had offered it up for collection as soon as the request
was made.
240.
Fourthly, I consider that Ms Copsey has a considerable emotional
investment, as well as commercial investment in these proceedings. I am unable
to say whether that stems from their power struggle or from her displeasure at
the claimant’s proposal to compete with the Money Doctors. Whatever the
reason, I am satisfied that Ms Copsey had a limited willingness to consider
innocent explanations for what she regarded as suspicious behaviour by Mr
Byrne.
241.
Fifthly, I found her evidence in relation to the Marrakesh email, dated
4 November 2015, to be unsatisfactory. It is to be found at page 194A in core
bundle 1.
242.
Ms Copsey was replying to an email sent to her by Neil Howlett. At the
time Ms Copsey was in Marrakesh celebrating Paul Howlett’s birthday with his
family. She said she was in holiday mood and had had one or two glasses of
wine. I accept that the email shows signs of having been written after alcohol
had been consumed, if only from the fact that some of the lines just do not
follow on one from the other.
243.
The content of her email to Neil Howlett and Greg Clark was obviously a
mixture of two topics. The first was the fact that Mr Byrne was on sick leave
and that may have had implications for whether his car insurance would remain
valid. The second reference was to the deadline which had been imposed on Mr
Byrne to indicate his acceptance of the claimant’s offer concerning the end of
his employment. Associated with that was a reference to the claimant’s
employment lawyer.
244.
For some reason, Ms Copsey persisted in maintaining that her email was
solely concerned with Mr Byrne’s sick leave, possible “psych” assessment
and his car insurance. It may well have been that her reluctance to accept
that it engaged the question of Mr Byrne’s employment was because it
contained an instruction to Mr Howlett and Mr Clark as follows:
“Also,
can we be aware that any emails might need to be disclosed in the future, so
can we destroy all these, please, and communicate by text if needs be.”
245.
I do not believe that Ms Copsey would or did destroy emails or any other
documents. As the claimant’s Letter before Action indicated, and as was
confirmed by Mr Byrne, Ms Copsey is not a stranger to litigation. She knows
the procedural stages of litigation and the importance of disclosure.
246.
The sentence which I have quoted above is, of course, plain in its
literal meaning. Nevertheless, against the background of Ms Copsey’s having
consumed alcohol and other irregularities in the formatting of the email, I am
not persuaded, on the strength of that email alone, that Ms Copsey did intend
to cause others to destroy emails, even though (1) she never wrote a corrective
email the following day to make its meaning clear and (2) this email seems to
have somehow got into the hands of Mr Byrne from someone within the claimant.
247.
However, what was important about the email was her unwillingness to
accept that it related to the employment dispute. I consider this is because
she was embarrassed by its reference to destroying documents relevant to that
dispute.
248.
These factors have undermined the confidence which I can place on the
accuracy and reliability on Ms Copsey’s evidence as a whole. It suffices for
me to say that where her evidence conflicts with that of the defendants and
their witnesses, I prefer the evidence of the defendants and their witnesses.
249.
I have reflected upon the fact that Mr Byrne did delete emails from his
inbox and sent box at the claimant’s premises before he left. He did not do a
very good job of that because part of the email chain he had with Mr Murrell
was retained in the sent box. I do not regard this, however, as indicative of
an attempt to remove all traces of the misuse or threatened misuse of the claimant’s
database.
250.
I consider that Mr Byrne was not enthusiastic about giving the claimant
the satisfaction of knowing what he wanted to do after he left the claimant in
detail, especially when he was alive to the fact that his proposed endeavours
would compete with the Money Doctors. It must also be recalled that no attempt
was made to delete any of the data from the iPad before it was returned to the claimant.
251.
I have also considered the claimant’s suggestion that Mr Byrne’s
willingness to scrape or harvest information from Specialist Info by the
mammoth download of data which caused Specialist Info to complain to Professor
Byrne indicated his willingness dishonestly to take other people’s data,
including the claimant’s, for his own purpose.
252.
However, it seems to me that however improper and unauthorised that
download was, it was done by an anxious Mr Byrne long after he had left the claimant
and at a time when he had to start afresh to build his career. That is not a
justification, but it seems to me to be a different scenario from that proposed
by the claimant, namely that in June 2015, even before the meeting in July 2015
had occurred, Mr Byrne had set aside for his private use his own pirated copy
of the claimant’s database of consultants.
253.
The claimant has therefore failed to satisfy me of any such disloyalty
by the claimant either in June 2015 or thereafter.
254.
On the contrary, having reflected long and hard about the evidence given
to me by Mr Byrne I am satisfied that he has told me the truth. I believe
him. I accept his evidence generally and, in particular, how the target list
was prepared without any use of or extract from the claimant’s database.
255.
As I have indicated previously, counsel for the claimant and for the defendants
in their written closing submissions have highlighted the similarities and the
differences between colour, spelling, names, specialties, formatting and font
size between the target list and how the material appeared on the claimant’s
database or reports derived therefrom.
256.
I do not propose to burden this already lengthy judgment with an
extensive citation of those numerous and substantial similarities. I have said
enough to identify in general terms the similarities upon which the claimant
has placed so much emphasis and which it is contended leads to the inevitable
conclusion of extraction from the claimant’s database.
257.
I agree that those similarities are striking and are capable of proving
that the target list has been extracted from the database, although if the claimant
were correct in its suggestion of extraction it really would have been a most
inefficient, laborious and counter-intuitive way of compiling it.
258.
The claimant’s case is that it is ludicrous to think that these
similarities can be explained by coincidence and that Mr Byrne, whatever
conversations he had with his wife in the kitchen at home on 11 November 2015,
did ultimately use the claimant’s database in the compilation of the target
list.
259.
Mr Hall between paragraphs 75 and 92 in his written closing submissions
explained how Mr Byrne, with ten years experience of compiling such documents,
came to create, in conjunction with his wife, the target list with the
assistance of the 2010 annual report and how it was finely tidied up and
formatted by Mr Byrne. In the end Mr Byrne said these were the 44 individuals
whom he could count on to help him.
260.
I find Mr Hall’s submissions also to be compelling. On balance,
I prefer them to those of the claimant, although fundamentally this case turns
on the fact that I believe and accept the evidence of Mr Byrne, Mrs Byrne,
Professor Byrne and Mr Murrell.
261.
Having subjected Mr Byrne’s evidence to careful scrutiny, and mindful of
the need to avoid ludicrous conclusions, I nevertheless find Mr Byrne to be an
open and honest witness, whose evidence I accept as accurate and reliable.
262.
On the totality of the evidence, at the very least, the claimant has
failed to satisfy me that Mr Byrne extracted data from the database in
preparing the target list as alleged or at all.
263.
On the contrary, the defendants have satisfied me, on the balance of
probabilities, that they did not extract or make any use of the claimant’s
database or any report or spreadsheet derived from it in compiling the target
list.
264.
Accordingly, the claim based upon infringement of the Database Regulations
must be dismissed.
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