Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 155

 

CA91/14

OPINION OF LORD TYRE

In the cause

PINNACLE CLOUD SOLUTIONS LIMITED

Pursuer;

against

MACLELLAN PROPERTY LIMITED

Defender:

Pursuer:  McBrearty QC;  Wright Johnston & Mackenzie LLP

Defender:  McShane;  Morton Fraser LLP

28 October 2014

Introduction

[1]        On 29 July 2011, a company then called Pinnacle Telecom Group Plc (PTG) entered into a Business and Asset Purchase Agreement with MacLellan IT Ltd (MIT), in terms of which PTG acquired the business and assets of MIT in exchange for shares in PTG.  The business of MIT that PTG acquired consisted of the provision of IT and telecommunications consultancy services for clients in various lines of business, including the provision of software for an online hotel booking system known as Mainstay.  MIT operated from premises at Kathellan Home Farm, Kelty, Fife, owned by the defender, which was formerly called Kathellan Limited. 

[2]        The pursuer is a wholly-owned subsidiary of PTG.  The Business and Asset Purchase Agreement (BPA) provided that immediately following completion, the business and assets acquired by PTG would be transferred to the pursuer, with all rights under the BPA being assigned to the pursuer.  Among those rights were the benefit of the following undertakings by MIT:

• not, during a three year period from 2 August 2011, to deal with or seek the custom of any person who was a customer of MIT at or within a year before that date; and
• not, at any time, to use the name MacLellan IT or anything which in PTG’s reasonable opinion was capable of confusion with such name.

Following the acquisition of MIT’s business, the pursuer continued to operate it from the defender’s premises at Kelty.  Employees of MIT had their contracts of employment transferred to the pursuer.  These contracts contained clauses prohibiting (i) disclosure of confidential information and (ii) the soliciting of business from the company’s customers for a period of six months after termination of their employment. 

[3]        MIT was, prior to the transfer of its business to PTG, and remains a business vehicle controlled by Mr Ian MacLellan, its sole director and secretary.  In 2011 its name was changed to Huntingtower Capital Limited; it subsequently underwent other changes of name.  After the transfer, Mr MacLellan became concerned that the business at Kelty was not being operated by the pursuer in accordance with certain commitments which he regarded as having been made to him at the time of the purchase.  He sought assurances from the pursuer’s board but received no response that satisfied him.  He made several offers to the pursuer to buy the business back.  Those offers were declined.  Eventually Mr MacLellan decided to take matters into his own hands.  On 29 March 2014, the name of the company formerly called MIT was changed again, this time to MacLellan Technology Limited.  A number of key employees of the pursuer at Kelty resigned from their employment and began working for MacLellan Technology Limited.  On 28 March 2014, the defender, which is also controlled and directed by Mr MacLellan, terminated the pursuer’s licence to occupy the premises at Kelty with immediate effect and removed the pursuer’s moveable property from the premises.  On 31 March 2014, two of the pursuer’s former employees sent emails to customers of the pursuer advising them that the business had been “migrated back” to MacLellan Technology, and inviting them to cancel their direct debit mandates in favour of the pursuer in preparation for executing new mandates in favour of MacLellan Technology.  On 1 April 2014, one of the pursuer’s former employees contacted the pursuer’s telephone provider to request the re-routing of calls to a different number.

[4]        In response to these events, the pursuer raised an action in this court (CA90/14) against MacLellan Technology Limited and three named former employees, being the two individuals who had emailed customers on 31 March and Mr Robin Steedman, a software developer.  The pursuer sought interdict and interim interdict against MacLellan Technology Limited and the first two named former employees, decree ordaining Mr Steedman to deliver up or disclose all IT passcodes and usernames used in operating the pursuer’s business, and damages.  At the same time, the pursuer raised the present action, seeking decree ordaining the defender to deliver up the pursuer’s property formerly kept at the premises at Kelty, including a lengthy list of specific items.

[5]        Following the service of summonses on the respective defenders during the morning of Friday 4 April 2014, the two actions came before this court on the afternoon of the same day for hearing by me of motions by the pursuer for various interim orders.  Mr MacLellan was in attendance at court.  Undertakings were given to the court on behalf of the defenders in this action, and on behalf of MacLellan Technology Limited and Mr Steedman in the other action.  Those undertakings were recorded in the respective minutes of proceedings.  So far as the present action is concerned, the undertaking given to the court on behalf of the defender was in the following terms:

“The defender hereby undertakes to the pursuer that it will by, at latest, 3 pm on Monday 7^th April 2014, allow access to the pursuer or those acting on its behalf to the premises at which the hereinafter mentioned property is held in order that the pursuer may uplift the pursuer’s property which was formerly kept at the premises at Kathellan House, Home Farm, Kelty, Fife, KY4 0JR, including but not limited to [here followed the same list of property as in the first conclusion of the summons].”

 

[6]        On Monday 7 April, representatives of the pursuer went to Kathellan House to take delivery of property belonging to the pursuer, which had been stored in a barn.  They uplifted the property in the barn and were also given two boxes containing compact discs by Mr MacLellan.  The pursuer subsequently intimated to the defender that the property that had been made available to its representatives for uplift had not included all of the items falling within the terms of the undertaking.  The pursuer identified five items which it contended ought to have been but had not been handed over.  These were:

(i)  hard drives removed from ten Dell PC towers;

(ii)  three Buffalo external hard drives;

(iii)  sales invoices for work carried out during March 2014;

(iv)  up-to-date software for the Mainstay service; and

(v)  tapes containing back-up data held on behalf of Dunfermline Building Society.

[7]        The pursuer lodged a minute craving the court to ordain the defender, through its directors, to appear personally at the bar of the court to explain its breach of undertaking with regard to these items, and thereafter to impose such punishment on the defender as the court might think fit.  A proof was subsequently allowed in respect of

• the pursuer’s conclusion for decree ordaining the defender to deliver these five items to it;
• the pursuer’s minute for breach of undertaking; and
• a conclusion added by amendment in the parallel action against MacLellan Technology Limited, which had by then changed its name to Braveheart Technology Limited (“Braveheart”), for decree ordaining the defender to deliver up or otherwise disclose to the pursuer certain IT usernames and passwords.

[8]        The proof took place on 14 and 15 August 2014 and I heard parties’ submissions on 22 August.  So far as the Mainstay software (item (iv) above) was concerned, senior counsel for the pursuer indicated prior to commencement of the proof that following discussions between the parties and the delivery of a disc to the pursuer, he no longer required to insist in either his conclusion for decree or his minute for breach of undertaking.  In addition, for the reasons explained in my opinion in the parallel action, the pursuer did not ultimately require to seek decree in terms of the conclusion in that action which had been allowed to proof. 

 

Evidence at the proof

[9]        The following witnesses gave evidence at the proof.  On behalf of the pursuer:

(i)  Darron Giddens, chartered accountant, financial director of the Pinnacle group of companies;

(ii)  Richard Smith, head of IT of the Pinnacle group;

(iii) Fiona Fraser, a business development director employed by the pursuer; and

(iv) Robin Steedman.

On behalf of the defender:

1. Ian MacLellan;
2. Wendy Woodward, an investment consultant who provides advice to Mr MacLellan;

(iii) James Young, a 22-year-old technological consultant employed since 31 March 2014 by Braveheart with the job title of sales director;

(iv)  Charles Kotkin-Smith, an IT 2/3 line engineer employed formerly by the pursuer and now by Braveheart.

 

The property handover

[10]      According to Mr MacLellan’s evidence, it had been his initial intention to remove all of the pursuer’s property from the offices at Kathellan House for storage in a nearby barn on Friday 28 March 2014, i.e. the day on which the defender gave notice to the pursuer that its licence to occupy the premises had been terminated with immediate effect.  In fact the removal of most items was carried out on Monday 31 March.  It took place in something of a rush, and was supervised by Mr Young on what was his first day at work for Mr MacLellan.  After the court hearing on 4 April, arrangements were made for the property to be uplifted by representatives of the pursuer on the afternoon of Monday 7 April.  In determining what property required to be handed over, Mr MacLellan used a list that had been annexed to the BPA in 2011 as he did not consider that any assets had been brought by the pursuer to the Kelty premises since then.  He instructed Mr Young to label the items and to check that they accorded with the BPA list.  Mr Young carried out this check on the morning of 7 April.

[11]      The items of property were uplifted on behalf of the pursuer by Mr Smith and Ms Fraser, accompanied by two delivery men, using a van hired for the day.  Before travelling to Kelty, they made a list of items to be delivered.  When they arrived at Kelty on the afternoon of 7 April, they were met by Mr MacLellan and Mr Young who took them to the barn.  Ms Woodward was also present at the barn.  Mr MacLellan handed two CD boxes marked “CRM” and “Mainstay” respectively to Mr Smith, and told him that they contained all of the data requested.  Mr Smith and Ms Fraser discovered that their list of assets did not coincide exactly with Mr MacLellan’s list, which was shorter.  Ms Fraser telephoned the pursuer’s office but was unable to contact anyone who could give instructions on what to do about this.  In the absence of instructions, Mr Smith and Ms Fraser decided to proceed using Mr MacLellan’s list, noting any discrepancies to be resolved later.  As items were loaded into the van they were ticked off on the list.  Minor amendments were made to the list, substituting the word “handsets” for “headsets” and reducing the number of Blackberry handsets from three to two.  Two journeys in the van were required to remove all of the items, which included ten chairs, ten desks and five filing cabinets as well as various items of IT hardware.  The property was initially put into storage at premises in Rosyth.  When the van had been loaded for the second time, Ms Fraser signed the BPA list, which by then had also been signed by Mr MacLellan.  The IT equipment was later taken to the pursuer’s office in Paisley.

[12]      There is little else about the handover that is uncontroversial.  I begin by examining the evidence in relation to each of the items in respect of which the pursuer seeks orders from the court, before making my assessment of the witnesses and my findings on the facts.

 

(i)  Dell PC tower hard drives

Evidence on behalf of pursuer

[13]      According to Mr Smith’s evidence, he discovered when he attempted to start up the Dell PC towers in Paisley that the hard drives had been removed from all ten of them.  He had not been aware of this when they were uplifted from Kelty.  He was sure that the items uplifted did not include a box containing the hard drives, and denied that he had asked for or been shown them during the handover.  He did not recall any boxes of IT equipment being among the items delivered.  Ms Fraser also denied that any boxes had been uplifted: there was no reference to boxes on the BPA list and nothing was taken that was not on the list.  Mr Smith could think of no reason to remove the hard drives from the PCs other than to avoid handing them over.  If for any reason it was desired to format (i.e. wipe) the hard drive of a PC, this could be done just as effectively with the hard drive installed in the computer.  He had noted on a previous visit to Kelty that at least two of the staff were using these PCs for local storage of business data.  He had been unhappy about this and had been working on a project to store data centrally.

 

Evidence on behalf of defender

[14]      The evidence of the defender’s witnesses was that the ten hard drives were handed over on 7 April.  Mr MacLellan stated that the PCs had been used by staff at Kelty largely for storage of personal data.  He was concerned that once the PCs had been handed over to the pursuer, any such data might be difficult to access.  He explained that it was a Pinnacle procedure to take the hard drive out when moving a PC from one location to another.  They were taken out during the removal on 31 March.  The staff did not need to be instructed to do it.  Mr MacLellan had instructed Mr Young to oversee the procedure and to ensure that the hard drives, once removed, were stored in a box for handover to the pursuer.  There was no need for this to be noted specifically on the handover list as it was covered by the reference to the Dell PC towers.  The reason for removal was that it was easy to refit the drives to whichever units were being re-deployed, if the equipment was not all being re-used.  The box containing the hard drives was inspected at Kelty by Mr Smith, who declared himself satisfied.  Ms Woodward recalled seeing a box containing the hard drives being handed over and checked by Mr Smith.  She remembered this clearly as she had never previously seen internal hard drives outside a computer.  Mr Young, in his witness statement which he adopted as his evidence in chief, stated that he personally had cleared the hard drives of personal information and removed them from the towers.  In cross-examination, however, he stated that he had only inspected one of the PCs for personal information and had personally unscrewed two of the drives.  He had supervised the operation and had personally removed the drives from their casings and placed them in a box.  Mr Smith inspected the box briefly before it was loaded into a van. 

 

(ii)  Buffalo external hard drives

[15]      According to Mr Smith’s description, which I understood to be accepted as accurate by Mr MacLellan, these items were three metal boxes, each of which contained three external hard drives.  Data stored on one of the drives could be replicated for back-up purposes on the others in the same unit and also on the drives in the other two units.  It was not clear from the evidence what, if anything, these hard drives had been used for during the period when the pursuer carried on operations at the Kelty office.  They were included in Mr Smith’s list of equipment to be uplifted but not in the BPA list used by Mr MacLellan.

 

Evidence on behalf of the pursuer

[15]      Mr Smith stated that the Buffalo drives were not among the items available for uplift.  He noted this on his own list.  Mr Steedman thought that they might have belonged to a former employee.  He did not know whether they had been in the Kelty office immediately before April 2014, but they were not there now.  

 

Evidence on behalf of the defender

[16]      Mr MacLellan understood the reference to Buffalo drives to be to some hard drives which had been in the premises at Kelty prior to the sale of the business in 2011.  They were old and not used by staff in the office.  Not having been included in the BPA list, they did not belong to the pursuer.  However, they were among miscellaneous IT equipment handed over with a view to being helpful.  Ms Woodward agreed that boxes of miscellaneous items, including hard drives, additional to the items on the BPA list were handed over.  Mr Young thought that Buffalo brand hard drives were in boxes collected by the pursuer’s representatives.

 

(iii)  Sales invoices

[17]      By the close of the evidence there appeared to be a degree of common ground with regard to what was or was not handed over in implementation of the defender’s undertaking to deliver “…all sales invoices relating to [the business sold by MIT to PTG]”.  Mr Steedman explained that the business at Kelty used two electronic customer relations management (CRM) systems.  One of these (“the old CRM”) had existed prior to the sale of the business in 2011 and held inter alia the information used to produce monthly sales invoices.  The other (“the new CRM”) was created after 2011 and held inter alia the office intranet and helpdesk, as well as some sales invoice data that was several years out of date.  Each month, the old CRM was used to generate hard copy sales invoices.  Certain details were also entered on the business’s Sage accounting system, although these did not include a full narrative of the work which was being invoiced.  Among the items handed over to Mr Smith and Ms Fraser was a folder of sales invoices.  On subsequent examination by Mr Giddons, it appeared that the folder contained invoices up to the end of February 2014, together with a few dated 11 March.  The folder did not contain a full set of copies of invoices for March 2014.  There was, however, no clear evidence that, as at 7 April 2014, hard copy sales invoices for March 2014 had yet been generated.  It seems likely that no such hard copy invoices were yet in existence at that time.  At the close of proof, senior counsel for the pursuer confirmed that he was no longer seeking an order for delivery of hard copy invoices.  In these circumstances, attention focused instead on the sales invoice information held in electronic form on the old CRM.

 

Evidence on behalf of the pursuer

[18]      Mr Steedman explained that in preparation for the handover, on Mr MacLellan’s instructions, he burned (i.e. copied data from the Kelty business’s server on to) four compact discs.  Two of these contained Mainstay versions 1.9 and 2.0.3.8 respectively.  The other two discs contained the old CRM and the new CRM respectively.  The data copied to disc from the old CRM would have contained all current sales invoice information, i.e. up to and including details of work to be invoiced at the end of March or beginning of April 2014.  He handed the discs to Mr Young.  Mr Smith stated that on arrival at Kathellan House on 7 April, he was given two discs by Mr MacLellan, who explained that these represented the latest copies of Mainstay and the CRM respectively.  The discs handed over were in fact Mainstay version 1.9 and the new CRM.  

Evidence on behalf of the defender

[19]      Mr MacLellan did not know how many CDs had been burned by Mr Steedman.  What he did know was that he received CD boxes, containing CDs, from Mr Steedman and handed them over to Mr Smith at the beginning of the uplift on 7 April.  One box was marked “Mainstay”; the other was marked “CRM”.  He did not look inside, but so far as he was aware he had delivered the fundamental version of Mainstay and the up-to-date CRM.  In any event, the information used to generate March 2014 invoices would be retrievable elsewhere in Pinnacle’s computer system.  The CRM had been deleted from the Kelty servers before 7 April.

 

Amendment

[20]      After the evidence had been heard but before submissions were made, I allowed amendment of the pursuer’s first conclusion by inserting the following additional item delivery of which was sought:

“(xxx)  all copies, in whatever medium, of the application known as the ‘CRM system’, which allowed sales invoices to be created and stored, in the form which it was in as at 1 April 2014”.

 

Senior counsel for the pursuer did not seek to extend the minute for breach of undertaking to this additional item.

 

(iv)  Dunfermline Building Society back-up tapes

Evidence on behalf of the pursuer

[21]      Mr Giddons explained his understanding that one of the services provided by the pursuer at Kelty was to store back-up tapes securely off site on behalf of Dunfermline Building Society (DBS).  These tapes were not among the items handed over by the defender.  This had given rise to concern as to their whereabouts on the part of DBS’s administrators, as it was feared that the tapes contained customers’ personal data.

 

Evidence on behalf of the defender

[22]      The principal evidence on behalf of the defender in relation to DBS back-up tapes was given by Mr Kotkin-Smith.  When he became an employee of the pursuer in February 2014, it was explained to him by his predecessor that as part of the service provided to DBS by the pursuer, an informal arrangement had been instituted whereby back-up tapes of DBS data would be taken off site and stored at the Kelty premises.  At a later date these would be returned to DBS and exchanged for an up to date version.  The tapes did not contain sensitive customer data.  On 13 March 2014, Mr Kotkin-Smith carried out a monthly visit and was given back-up tapes.  He took them to Kelty and put them in his desk drawer.  There was another tape in the same drawer that had been put there by his predecessor.  Mr Kotkin-Smith was on holiday for about two weeks from 28 March.  On his return he discovered that everything in his desk, including the tapes in the drawer, had been cleared out.  Mr MacLellan’s evidence was that he had only become aware of this informal arrangement when told of it a few weeks before the proof.  If the DBS tapes had been in Mr Kotkin-Smith’s desk when the pursuer’s property was removed from the premises, they would have been handed over to Mr Smith and Ms Fraser on 7 April.  They were not in the Kelty office now.  Mr Young described how, in June 2014, he and another Braveheart employee had gone uninvited to DBS’s premises in an unsuccessful attempt to locate the missing tapes.  He could not recall who had instructed them to do so.

 

Assessment of witnesses

[23]      The credibility and reliability of Mr Steedman, Mr Kotkin-Smith and, to the extent that he gave direct evidence relevant to the matters with which the proof was concerned, Mr Giddons were not challenged and I accept the evidence of these witnesses as credible and reliable.  The principal conflicts were between, on the one hand, the evidence of Mr Smith and Ms Fraser and, on the other, the evidence of Mr MacLellan, Ms Woodward and Mr Young.

[24]      I found Mr Smith and Ms Fraser to be straightforward and impressive witnesses.  Mr Smith was clearly knowledgeable in the field of IT and was able to give coherent and satisfactory explanations of his actions where appropriate.  His evidence was carefully delivered and internally consistent.  Ms Fraser had a less specialist role in proceedings but also struck me as a careful witness who was able, when necessary, to provide explanations that were consistent with other evidence in the case.  I regarded the evidence of both Mr Smith and Ms Fraser as credible and generally reliable.

[25]      I also considered Ms Woodward to be an impressive witness.  She too gave her evidence in a straightforward manner and had the advantage of being a disinterested observer.  She was careful not to stray beyond the scope of her personal knowledge of events or expertise.  I have no doubt that she was doing her best to assist the court by giving a truthful account of events as she recollected them.  Her evidence is, however, irreconcilable with that of Mr Smith and Ms Fraser on certain issues, and I address this conflict below. 

[26]      I was much less impressed by the evidence of Mr MacLellan and Mr Young.  So far as Mr MacLellan was concerned, there were numerous conflicts between his witness statement and his oral evidence, and there were inconsistencies within the latter.  Many of his answers to questions in cross-examination seemed to me to be given with little heed to their accuracy.  I have in mind, for example, his emphasis on the fact that he handed over two CD boxes, as opposed to two CD discs, and could not be expected to know whether these contained two or four discs; his attempt to equate “wiping” a hard drive with physically cleaning its exterior; his insistence that removal of the Dell hard drives was an attempt to improve the transparency of the handover; and his account of how undertakings came to be given to the court on 4 April without his being aware of their exact terms.  I found his repeated expressions of desire to achieve an amicable handover of assets impossible to reconcile with the dishonest and underhand manner in which he, and those acting upon his instructions, had sought to wrest the Kelty operation back from the pursuer, and with the hostility of his contemporaneous communications with the Pinnacle management.  I do not believe that he had any desire to be of assistance to Pinnacle; I interpret his actions prior to and at the time of the handover as having had the rather different purpose of making it as difficult as possible for Pinnacle to raise any queries afterwards regarding the completeness of the delivery.  His assertion that his breach of the terms of the BPA was caused by a last-minute change to terms of which he had had no knowledge was contradicted by the evidence of Mr Giddons, which I accept, that there had been no such change.  I did not find Mr MacLellan to be a credible witness and I have required to take great care in accepting as reliable anything which he said that was not supported by another source. 

[27]      As regards Mr Young, I consider his credibility and reliability to be tainted by his apparent indifference to the accuracy or otherwise of the affidavit that he signed, which wrongly implied that he personally had cleared the hard drives of personal data and removed them from their towers.  I acknowledge that he was placed in a difficult situation by being required to give contested evidence about events that occurred during his first day at work for Mr MacLellan.  My overall impression of him was that he was not a witness in whom I could place confidence to provide accurate evidence and, as with Mr MacLellan, I have treated his evidence with caution in so far as it was not corroborated.

 

Findings on the facts

(i)  Dell PC tower hard drives

[28]      It is common ground that

• immediately prior to 31 March 2014 the Dell PC tower hard drives were installed in ten fully functional PCs in the Kelty office;
• they were business assets belonging to the pursuer;
• the PCs were among the assets that the defender undertook to the court on 4 April 2014 to deliver to the pursuer;
• the hard drives were removed from the PCs;
• the PCs, without the associated hard drives, were handed over to Mr Smith and Ms Fraser on 7 April.

The only factual issue for determination is therefore whether the hard drives were among the assets handed over.  I accept the evidence of Mr Smith and Ms Fraser that they were not, for the following reasons.  Firstly, as previously explained, I found them to be wholly credible and reliable witnesses.  Secondly, I heard no satisfactory reason why the hard drives were removed from the towers.  Mr MacLellan’s suggestion in the course of cross-examination that it was office practice to disconnect the hard drive of an item of equipment being transferred from one location to another was not put to the pursuer’s witnesses and I reject it.  I also reject as not credible his explanation that removal of the hard drives was helpful in order to allow them to be re-deployed separately from the towers from which they were removed.  It seems to me that the most likely reason for removing the hard drives was to attempt to avoid handing them over.  I do not accept Mr MacLellan’s evidence that the data on these office computers were almost entirely of a personal nature, which again seems inherently improbable and conflicts with the evidence of Mr Smith, which I accept, that prior to the events of March 2014 he had observed at least two of them being used for business purposes.  It is the case, as counsel for the defender submitted, that the removal was easily discoverable afterwards.  It has, however, enabled the defender to continue to insist that because Ms Fraser signed the BPA list, everything must have been handed over.  This appears to have been Mr MacLellan’s strategy at the time when the assets were being prepared for delivery.

[29]      In making this finding I have to reject Ms Woodward’s evidence that she saw boxes of IT equipment, and specifically a box containing these items, being handed over.  I conclude that she was mistaken about this in her recollection of the events of 7 April.  On the face of it, it might seem surprising that the items uplifted by Mr Smith and Ms Fraser included no boxes at all, but I regard that as explicable on the basis that the BPA did not contain any express or implied reference to anything other than the items of hardware listed, and that it was not Mr MacLellan’s wish on 7 April to do anything other than comply with his obligations to the least possible extent.  It is also of significance that the list signed by Mr MacLellan and Ms Fraser was amended in certain minor respects but was not amended to add any reference to boxes. 

 

(ii)  Buffalo external hard drives

[30]      It was Mr MacLellan’s position that because these drives were not listed in the appendix to the BPA, they had never belonged to the pursuer.  I do not require to consider whether this interpretation of the BPA is tenable because they were included within the terms of the undertaking given by the defender to the court on 4 April.  Mr MacLellan’s position was that they were among miscellaneous items handed over; Mr Smith’s position was that they were not delivered.  Neither received direct support from any other witness.  I accept Mr Smith’s evidence that they were not among the items handed over.  If, as I have found, no boxes were among the items delivered, it follows that these drives were not handed over in a box.  I have already explained why I regard it as unlikely that Mr MacLellan, in order to be helpful to the pursuer, would have handed over any item that he did not regard himself as obliged to deliver.

 

(iii)  Sales invoices

[31]      I have noted that by the close of the proof the pursuer no longer sought an order for delivery of hard copy sales invoices for March 2014.  So far as information in electronic form is concerned, it is not in dispute that Mr Steedman created a CD containing the old CRM data that would have included the information required to generate invoices for work done up to the time of the handover.  The factual issue is whether that disc was delivered on 7 April.  Mr Smith says it was not; Mr MacLellan’s position appeared to be that if it was not in one of the two boxes that he personally handed over, it would have been among the miscellaneous IT equipment delivered.  Again I prefer Mr Smith’s evidence.  Unlike, perhaps, the items of hardware that I have so far addressed, it is clear that the information on the CDs given by Mr MacLellan to Mr Smith was regarded by all concerned as being of major importance.  The CDs were handed over first, and separately from the other equipment.  When the pursuer’s staff discovered that neither the CD that was handed over nor the hard copy invoices appeared to be up to date, they made persistent efforts to obtain information from Braveheart staff, notably Mr Steedman, as to where the data needed to produce these could be found.  I reject the submission on behalf of the defender that the relevant details were all available within discs handed over on 7 April, if the pursuer only knew where to look.  I also reject the suggestion that the disc containing the old CRM must have been handed over among other miscellaneous discs and other items of equipment; even if I had been persuaded that a box of such equipment had been delivered, the discs containing the CRM and Mainstay application were regarded by all concerned as too important to have been handed over in such a casual manner.  Having regard to Mr MacLellan’s attitude to the Pinnacle Group at the material time, I consider that it is much more likely that this disc, along with the disc containing Mainstay 2.0.3.8, was not handed over.

 

(iv)  Dunfermline Building Society back-up tapes

[32]      I accept Mr Kotkin-Smith’s evidence that, prior to his departure on holiday on 28 March 2014, these tapes were in a drawer in his desk at the Kelty office, and that on his return from holiday two weeks later they were no longer there.  Whether or not it was the same desk is uncertain.  There is, of course, no reference to such tapes in the BPA list.  They were, however, covered by the terms of the undertaking given to the court on 4 April.  The issue is whether they were handed over on 7 April. 

[33]      Mr MacLellan asserted that he had been unaware that DBS back-up tapes were kept at Kelty.  On this point, I accept his evidence.  The keeping of the tapes appears to have been an informal arrangement entered into between members of the pursuer’s staff and a DBS employee.  It is not to be commended and, depending upon what the tapes contained, may have given rise to breaches of data protection legislation.  Mr Smith was also unaware of the arrangement until he was contacted by DBS inquiring as to the whereabouts of the tapes.  I accept Mr Smith’s evidence that they were not delivered to the pursuer on 7 April.  I am satisfied, however, that the failure to deliver them was inadvertent, given that Mr Kotkin-Smith appears to have been the only member of staff who knew that they were in the Kelty office.

 

Orders sought by the pursuer

Orders for delivery

[34]      The pursuer now seeks an order for delivery of the Dell PC hard drives, the Buffalo external hard drives, copies in whatever medium of the old CRM system in its form as at 1 April 2014, and the DBS back-up tapes.  I have found that none of these was delivered on 7 April.  The next question to determine is whether any or all of these items now remain in the possession of the defender.

[35]      As regards the Dell PC hard drives and the Buffalo external hard drives, there was no evidence of their current whereabouts.  There is accordingly no basis upon which I could decide, with any degree of confidence, that they remain in the hands of the defender.  Nothing in the evidence suggested that any of these items had any significant intrinsic value.  Nor was there evidence to indicate that any of them contained data that was of importance to the pursuer, either in the positive sense of needing the data in order to operate its business or in the negative sense of being concerned about it remaining in the hands of the defender.  That being so, I conclude that there is no compelling reason to exclude the possibility that during the period since April 2014 these items have been destroyed or disposed of, whether wilfully or inadvertently, by the defender.  I find that the pursuer has failed to prove, on balance of probability, that these items remain in the possession of the defender, and I therefore decline to make any order for delivery.

[36]      As regards the sales invoice data on the old CRM, Mr MacLellan stated that the CRM system had been deleted from Braveheart’s system at the end of March 2014.  There was no other evidence on this point; in particular, Mr Steedman was not asked about it.  Again, therefore, I do not feel able with any confidence to find that the data sought remains available to the defender, and I do not make an order for delivery.  The importance of the information that the pursuer could have obtained from the sales invoice data for March 2014 will no doubt have diminished since the time of the handover, and will further diminish as the pursuer continues to provide services to the customers concerned.

[37]      The DBS back-up tapes are now the most important item in respect of which delivery is sought, in view of DBS’s concern that they may contain confidential data that ought not to be in someone else’s possession.  In relation to this item I feel able to find with a greater degree of confidence that the back-up tapes no longer remain in the possession of the defender.  I say this because of the evidence that Mr Young and another Braveheart employee paid an unannounced visit to DBS with a view to trying to find the tapes there.  It seems very unlikely that this would have been done if unsuccessful attempts had not previously been made by Braveheart staff to locate the tapes at the Kelty premises.  I consider that the most likely scenario is that the importance of these tapes was not recognised when the pursuer’s equipment was being hastily removed from Kathellan House, and that they were disposed of or destroyed at that time along with other apparently worthless items.  Again, therefore, I decline to make an order for delivery.

Breach of undertaking

[38]      It was common ground between the parties that breach of an undertaking to the court should be treated as analogous to breach of interdict, and accordingly as a form of contempt of court (Graham v Robert Younger Ltd 1955 JC 28, Lord Justice-Clerk Thomson at 32); and that the standard of proof was proof beyond reasonable doubt (Gribben v Gribben 1976 SLT 266 at 269).  In order to amount to contempt of court, the breach must be intentional (Graham, above, Lord Birnam at 33).  It is also clear from Gribben that action for contempt of court requires the concurrence of the Lord Advocate, which has not yet been sought.

[39]      The pursuer seeks a finding of breach of undertaking in respect of the failure to deliver the Dell PC hard drives, the Buffalo external hard drives, and the DBS back-up tapes.  So far as the DBS tapes are concerned, I have explained why I am satisfied that the breach was inadvertent.  Accordingly, no contempt of court was committed with regard to this item.  On the other hand, I am satisfied to the requisite standard of proof that the defender’s failure, in breach of the express undertaking given to the court on 4 April, to deliver up the Dell PC hard drives and the Buffalo drives to the pursuer on 7 April, was deliberate.  To that extent, therefore, I hold that there has been a breach of undertaking amounting to a contempt of court.

[40]      Breach of an undertaking solemnly given to the court in order to avoid the granting of an order for interim interdict is a serious and highly reprehensible act.  Subject always to the Crown’s entitlement to proceed instead with a criminal prosecution, the question whether punishment ought to be imposed and, if so, the nature of the punishment, must be determined as it would be for other actings in contempt of court.  In the present case, I take into account that no evidence has been presented to indicate either (a) that the various hard drives were of any material intrinsic value or (b) that any of them contained data that was of significant and/or continuing value to either of the parties.  That being so, it does not appear to me that the interests of justice require me to take matters further or to consider the imposition of punishment.  In all of the circumstances I consider that a finding that, in respect of these items, the defender acted in breach of its undertaking and accordingly in contempt of court, is sufficient.  I shall make such a finding in my interlocutor and intimate it to the Crown Office.

 

Disposal

[41]      I shall put the case out by order along with the related action against Braveheart to be addressed on expenses and any further procedure.