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||Neutral Citation Number:  EWCA Civ 354
||Case No: A2/2016/0582
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MRS JUSTICE COX
 EWHC 3616 (QB)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE HAMBLEN
|| VANDEN RECYCLING LTD
||- and -
||KRAS RECYCLING BV
David Reade QC and Nick Goodfellow (instructed by Dentons UKMEA LLP) for the Appellant
Jonathan Cohen QC and Jamie Susskind (instructed by Sintons Law) for the Respondent
Hearing date : 4 May 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
LORD JUSTICE HAMBLEN:
- This is an appeal against the judgment of Mrs Justice Cox of 17 December 2015 whereby summary judgment was given for the Third Defendant respondent, Kras Recycling BV ("Kras"), in respect of the claims made against it by the Claimant appellant, Vanden Recycling Ltd ("Vanden").
- Judgment was given on the basis that the effect of a Consent Order made on 25 June 2015 as between Vanden and the Second Defendant, Bolton Brothers Limited ("Bolton"), was to give judgment for Vanden in respect of its damages claim. That consent judgment having been satisfied there was no longer any claim against Kras, as another tortfeasor liable on the pleaded case for the same damage.
- Vanden contends that the judge erred in law in so concluding.
The factual and procedural background
- This is set out in detail in the judgment  EWHC 3616 (QB) at  to  and is not in dispute.
- In outline, as set out more fully in the judgment, Vanden is part of an international group of companies involved in plastic waste management. It specialises in buying industrial and commercial plastic waste and selling it on to third party customers for a profit. The waste is sold either to companies that recycle the waste, or to companies that add value to the waste through a cleansing process, before selling it on for recycling at a higher price. Vanden is one of the largest brokers of plastic waste products operating in the United Kingdom.
- The First Defendant, Ms Tumulty, was employed by Vanden as a Business Development Officer. Her duties included the development of their European customer base, sourcing and developing purchaser relationships in Holland, Belgium, Germany and northern France, and establishing or maintaining supplier relationships in eastern England and Ireland.
- Bolton is a waste management company based in Ipswich, which collects and disposes of both recyclable and non-recyclable waste, including plastic waste. Vanden had, on occasion, purchased plastic recyclable waste from Bolton.
- Kras is a Netherlands company which conducts a range of waste management services, including the purchase, cleaning and onward sale of plastic waste.
- Vanden and Kras had a commercial relationship, with Vanden both purchasing plastic waste from Kras and selling it on to them.
- In mid March 2015 it was agreed that Ms Tumulty would in future focus solely on the purchase of plastic waste, rather than on its sale. However, on 8 April 2015, shortly after this agreed change of role, she gave notice of her resignation. Vanden became suspicious of the reasons for and timing of her resignation. FTI Consulting LLP ("FTI"), a specialist computer forensic company, was instructed to carry out an investigation and analysis of her work laptop and mobile phone.
- Vanden's case is that FTI's findings produced significant evidence of unlawful conduct, in that Ms Tumulty was providing confidential and commercially sensitive information to both Bolton and Kras, and that the three Defendants had all conspired to divert business away from Vanden and to set up Ms Tumulty in a business arrangement to compete with Vanden.
- Ms Tumulty was immediately placed on garden leave and her employment was then terminated. Letters before action were sent to all the Defendants seeking immediate undertakings.
- Having received no response from Kras, Vanden initially applied on notice, dated 18 May 2015, for urgent interim relief only against Ms Tumulty and Bolton. It commenced a claim against all three Defendants by way of a Claim Form dated 18 May 2015 with Particulars of Claim dated 19 May 2015.
- At an inter partes hearing on 22 May 2015 HHJ Seymour QC, sitting as a judge of the High Court, granted the orders for interim relief sought against Ms Tumulty and Bolton, all parties having given appropriate undertakings, including undertakings by both those Defendants as to disclosure and delivery up of documents which were the property of Vanden and its parent, Vanden Global Limited. The judge also ordered a speedy trial of the claim against those Defendants, with permission to Vanden to apply in respect of its claim against Kras, the trial to be limited to the issues of liability and injunctive relief, with all other remedies to be dealt with at a separate hearing if required. The trial was set down to commence on Monday 6 July 2015, with a time estimate of 3 days, and appropriate case management directions were given to ensure that the trial date was adhered to.
- After disclosure was given by the first two Defendants, and while correspondence was continuing as to the undertakings being sought from Kras, negotiations with Ms Tumulty and Bolton resulted in a Consent Order being made in the case of each of those Defendants.
- The Consent Order with Bolton ("the Consent Order") was made on 25 June 2015. Its terms will be referred to in detail below but it set out terms of settlement agreed by Vanden and Bolton and provided that Bolton "is to pay the total sum of £275,000 in full and final settlement of the Claimant's claims against the Second Defendant in these proceedings together with interest and costs".
- The Consent Order with Ms Tumulty was made on 26 June 2015. Paragraphs 1 – 5 of that Order recorded Ms Tumulty's full admissions to all the allegations of misconduct made against her: that she had acted in breach of the express terms of her contract of employment, of the implied term that she would serve Vanden with good faith and fidelity, and of her implied duty of confidence to Vanden; that she was induced by Bolton and Kras to act in breach of her duties to Vanden; that she provided Bolton and Kras with confidential and commercially sensitive information for the purposes of a business which the three Defendants intended to operate in competition with Vanden; that she conspired with Bolton and Kras to injure Vanden by unlawful means; and that such conspiracy was to use Vanden's confidential information and to set up a competing business.
- Upon the basis of these admissions, the trial date of 6 July 2015 was ordered to be vacated as between Vanden and Ms Tumulty and the mutual undertakings of the parties were discharged. Paragraph 3 of the Order provided that:
"3. There be judgment in favour of the Claimant in respect of its claim against the First Defendant in relation to the Admissions at paragraphs 1 – 5 above with damages to be assessed in due course."
- There were also consequential orders as to springboard relief and compliance with the restrictive covenants in Ms Tumulty's contract of employment. The Order provided for payment of Vanden's costs of the application dated 18 May 2015 and for payment of its costs relating to the speedy trial, to be assessed if not agreed.
- Copies of both Orders were sent to Kras. Kras acknowledged service on 26 June 2015 and served its Defence on 9 July 2015.
- No agreement was reached as to undertakings to be given by Kras, and Vanden's application for interim relief against Kras came in front of HHJ Seymour QC on 20 July 2015. By that stage, faced with lengthy witness statements and documentary evidence revealing extensive factual and legal dispute, the parties accepted more limited undertakings than were sought on both sides and these were incorporated in an order of the court with no order being made on Vanden's application.
- On 23 October 2015 Kras issued its application that the claim be struck out or summary judgment entered for Kras. Three grounds were advanced: (1) since the judgment by consent against Bolton has been satisfied, a satisfied judgment against either joint or concurrent tortfeasors discharges the tort, so there is no claim left to bring against Kras; further or alternatively, (2) the Consent Order in relation to Ms Tumulty, as one of three joint tortfeasors, was one of judgment with damages to be assessed. The parties reached agreement in the terms of the order and that agreement was one of release, with a mechanism for the determination of the figure that Ms Tumulty should pay. There was no reservation of the right to continue against Kras and in the circumstances of this case Vanden released the claim against all the Defendants; further or alternatively, (3) this is a claim without any remaining value. The Claim Form gave the sum of £100,000 as the maximum figure for Vanden's loss; the Particulars of Claim, which have not been amended, are inadequate and fail to identify what loss is claimed; and the loss that can be identified appears to be minor. Since Vanden has already obtained £176,000 from Bolton, the costs of continuing are out of all proportion to any value that could be left, if indeed there is any loss remaining.
- The judge upheld Kras' application on ground (1) but made no ruling on grounds (2) and (3), neither of which she regarded as being "clear and straightforward".
- It was and is accepted that, for the purposes of determining the application to strike out or for summary judgment, the facts alleged in the Particulars of Claim should be assumed to be true.
The Particulars of Claim
- Individual breaches of duty were alleged against Kras as follows:
"22. The Third Defendant has:
22.1 induced the First Defendant to act in breach of her duties to the Claimant; and/or
22.2 acted in breach of the duty of confidence that it owed to the Claimant, inter alia by failing to destroy the Claimant's confidential information and also by making use of the same upon receipt from the First Defendant."
- Breaches of duty in like terms were alleged against Bolton (paragraph 21).
- The particulars of these breaches of duty included five examples of information being provided by Ms Tumulty to Kras (paragraph 23.1.1-23.1.5) and two examples of such information being provided to Bolton (paragraph 23.1.6-23.1.7).
- It was then alleged that the information was provided for the purpose of a business which the three Defendants intended to operate in competition with Vanden (paragraph 23.2).
- A collective breach of duty for conspiracy was alleged in paragraph 24:
"24. Further or in the alternative, the Defendants (or any two of them together) wrongfully and with intent to injure the Claimant by unlawful means conspired and combined together to breach the First Defendant's contract of employment. The claimant is entitled to and will rely on the facts and matters pleaded above."
- In terms of remedies, Vanden claimed interim and final injunctive relief against the Defendants, including Kras, as follows:
"26.3 Restraining the Defendants from using or disclosing confidential information belonging to the Claimants;
26.4 Requiring delivery up of confidential information and property belonging to the Claimant. Further or alternatively the Claimant seeks an order, pursuant to section 4 of the Torts (Interference with Goods) Act 1977 for the return of its property which has been wrongfully retained by the Defendants; and
26.5 Confirmation of compliance by way of affidavit evidence.
27. Further, unless restrained by the Court, the Defendants (and each of them) will benefit from the headstart which they have wrongfully obtained by reason of their misconduct. The Claimant is accordingly entitled to and seeks an injunction restraining each of them for a period of six months after the termination of the First Defendant's contract or such period as the Court thinks fit, in order to prevent them retaining any such unfair advantage."
- Damages and/or an account of profits were claimed as follows:
"28. Further the Claimant is entitled to and claims an account of profits made by the Defendants (and each of them) by reason of their wrongful conduct. The Claimant will particularise its claim in this respect following adequate disclosure by the Defendants.
29. Further or alternatively, the Claimant is entitled to and claims damages for breach of contract and/or breach of confidence and/or conspiracy and/or, in the case of each of the Second and Third Defendants, procuring or inducing breaches of contract by the First Defendant. The quantum of such losses is not presently capable of particularisation and the Claimant will provide particulars of the same at the earliest practicable opportunity.
30. Further or in the alternative the Claimant claims damages in respect of such sums as could reasonably have been demanded for giving permission to the Defendants to act in the manner that has been set out above. By reason of the said conduct, the Defendants have obtained an advantage for their own benefit. The Claimant is entitled to be compensated in the amount reflecting that which could reasonably have been charged, following a hypothetical negotiation in which the Claimant had made reasonable demands to the Defendants as a quid pro quo for permitting the said conduct, taking into account the amount of anticipated profits/income which the Defendants could make in respect of the benefit they have unlawfully obtained and the amount of anticipated costs which the Defendants would save in the event of the First Defendant being released from her contractual obligations.
31. Further or in the alternative the Claimant is entitled to damages in respect of wasted management time and overheads in addressing the disruption caused by the Defendants' wrongdoing.
32. Further or in the alternative, the Claimant is entitled to exemplary damages on the ground that the Defendants have acted on the basis that (or calculated that) the advantage which would accrue to them from their unlawful acts would exceed any damages which the Claimant might recover from them through legal proceedings."
- As to the quantum of damages claimed, the Claim Form had stated that "the Claimant estimates the value of the claim to be in the region of £100,000". As set out above, the Particulars of Claim did not specify any figure but stated that further particularisation would be provided in due course.
The Consent Order
- The Consent Order included the following:
"1. The trial as between the Claimant and the Second Defendant presently fixed to commence on Monday 6 July 2015 be vacated.
3. The Second Defendant is to pay the total sum of £275,000 in full and final settlement of the Claimant's claims against the Second Defendant in these proceedings together with interest and costs….For the avoidance of doubt should the Claimant be unable for any reason to recover costs from any other party to this action whether subject to an Order or otherwise the Claimant acknowledges that in consideration of the Second Defendant entering the Consent Order on these terms it shall not be able to recover any further costs from the Second Defendant.
4. All further proceedings in these proceedings as against the Second Defendant be stayed forthwith except:
(a) for the purpose of enforcing compliance with paragraphs 7-13 below; and
(b) for the purpose of enforcing and carrying out the terms of settlement set out in paragraphs 14-17 into effect with liberty to apply for that purpose.
5. The Claimant is permitted to retain and make use of all disclosure that has been provided by the Second Defendant in these proceedings in respect of its continuing claim against the First Defendant and the Third Defendant.
Inducing a breach of Bevin Tumulty's restrictive covenants
Information belonging to the Claimant
14. The Second Defendant shall pay the sum of £275,000…. (the "Settlement Sum" ) to the Claimant in full and final settlement of the Claimant's claims against the Second Defendant in this action.
15. The Settlement sum shall be paid to the Claimant as follows:
(a) £200,000….must be paid within 14 days from the date of this Order.
(b) The balance of £75,000….must be paid by 31 August 2015.
17. The Settlement Sum comprises:
(a) damages of £176,000; and
(b) a contribution to the Claimant's costs in the sum of £99,000.
18. Save as is set out above, no order as to costs."
The grounds of appeal
- The grounds of appeal are that the judge erred in law in:
(1) Failing to identify distinct and several causes of action other than conspiracy within the Particulars of Claim;
(2) Failing to determine that upon a proper construction of the Consent Order there had been no intention to discharge Vanden's claims against the other Defendants;
(3) Failing to determine that it was implicit within the Consent Order that Vanden intended to proceed with its action against Kras, even if its order for payment of the settlement sum against Bolton was satisfied;
(4) Finding that the claims were limited to seeking a single, joint remedy from the Defendants when the reality was that damages or an account of profits was sought from each separate Defendant;
(5) Concluding that the satisfaction of the payment terms of the Consent Order was a bar to the continuance of Vanden's separate claims against Kras for misuse of confidential information, inducement of breach of contract and/or in its alternative claim for an account of profits derived from such unlawful acts.
- As both parties accept, central to the appeal is the proper interpretation of the Consent Order.
- The case of Kras, which the judge accepted, is that the Consent Order was a judgment by consent and not a compromise agreement or Tomlin order. As such, it fixed the full measure of Vanden's loss and its satisfaction extinguished all Vanden's causes of action.
- It is clear that a satisfied judgment ordinarily bars claims against other tortfeasors who are liable for the same damage.
- As Lord Hope stated in Jameson v CEGB  1 AC 455 at 473 E:
"….a claim of damages in tort is a claim for unliquidated damages. It remains unliquidated until the amount has been fixed either by the judgment of the court or by an agreement as to the amount which must be paid to satisfy the claim. It cannot be doubted that, once the amount of the damages has been fixed by a judgment against any one of several concurrent tortfeasors, full satisfaction will have been achieved when the judgment is satisfied. The law used to be that the judgment against one tortfeasor was itself, without satisfaction, a sufficient bar to an action against another joint tortfeasor for the same cause….In the case of concurrent tortfeasors a judgment recovered against one of them did not put an end to the cause of action against any of the other tortfeasors until it had been satisfied….Section 6 (1)(a) of the Law Reform (Married Women and Tortfeasors) Act 1935 , which was replaced and extended by section 6 of the Civil Liability (Contribution) Act 1978, altered the common law on these matters. As the law now stands, a plaintiff is barred from going on with a separate action against another tortfeasor if the judgment which he has obtained in the first action has been satisfied."
- As set out in Halsbury's Laws, Vol 97 at paragraph 449:
"Judgment recovered against any person liable in respect of any debt or damage is not a bar to an action, or to the continuance of an action, against any other person who is (apart from any such bar) jointly liable with him in respect of the same debt or damage. However, a satisfied judgment (except in the case of a foreign judgment) is a bar to a claim against other tortfeasors, whether joint or several, who are liable for the same damage."
- Satisfaction of a settlement agreement as opposed to a judgment will only have this effect if the sum agreed and paid was intended to fix the full measure of the claimant's loss.
- As further stated in paragraph 449 of Halsbury's Laws:
"….acceptance of a settlement from one tortfeasor bars continuance of proceedings against another, whether the liability is joint or several, if the entire sum agreed upon is received and it was intended to be in full satisfaction of the claim[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]. In such a case, the compromise fixes the claim as if judgment had been given, and the claimant cannot subsequently contend that the settlement figure fell short of the claim's full value and thereby justify proceedings against another tortfeasor[Diagram or picture not reproduced in HTML version - see original .rtf file to view diagram or picture]."
- This is clearly set out by Lord Bingham in his judgment in Heaton v AXA Equity & Law Life Assurance Society plc  UKHL 15,  2 AC 329 at - in which he considered and explained the conclusion reached in Jameson as follows:
"This conclusion was reached by a number of steps which included the following.
(1) Proof of damage is an essential step in establishing a claim in tortious negligence ( 1 AC 455 , 472a-c).
(2) Such a claim is a claim for unliquidated damages (pp 473d, 474a).
(3) Such a claim is liquidated when either judgment is given for a specific sum or a specific sum is accepted in a compromise agreement (pp 473d, 474b, 474e).
(4) A judgment on such a claim will ordinarily be taken to fix the full measure of a claimant's loss (pp 473e, 474b).
(5) A sum accepted in settlement of such a claim may also fix the full measure of a claimant's loss (pp 473e, 474e-f): whether it does so or not depends on the proper construction of the compromise agreement in its context (pp 473b, 476e, 474h).
(6) On the facts of A's case, the sum accepted from B in settlement was to be taken as representing the full measure of A's loss: it followed that A's claim in tortious negligence was extinguished and he had no claim which could be pursued against C (p 476e).
I do not think the first four of these steps are controversial. The fifth proposition may perhaps have been stated a little too absolutely in Jameson , but as expressed above I do not think it can be challenged. There was clearly room for more than one view, as the division of judicial opinion in Jameson showed, whether the sum accepted in settlement by A was to be taken as representing the full measure of his loss, but if it did the conclusion followed: A could not have proved damage, an essential ingredient, in his action against C, and that was fatal to the widow's Fatal Accidents Act claim against C.
9 In considering whether a sum accepted under a compromise agreement should be taken to fix the full measure of A's loss, so as to preclude action against C in tort in respect of the same damage, and so as to restrict any action against C in contract in respect of the same damage to a claim for nominal damages, the terms of the settlement agreement between A and B must be the primary focus of attention, and the agreement must be construed in its appropriate factual context. In construing it various significant points must in my opinion be borne clearly in mind:
(1) The release of one concurrent tortfeasor does not have the effect in law of releasing another concurrent tortfeasor and the release of one contract-breaker does not have the effect in law of releasing a successive contract-breaker.
(2) An agreement made between A and B will not affect A's rights against C unless either (a) A agrees to forgo or waive rights which he would otherwise enjoy against C, in which case his agreement is enforceable by B, or (b) the agreement falls within that limited class of contracts which either at common law or by virtue of the Contracts (Rights of Third Parties) Act 1999 is enforceable by C as a third party.
(3) The use of clear and comprehensive language to preclude the pursuit of claims and cross-claims as between A and B has little bearing on the question whether the agreement represents the full measure of A's loss. The more inadequate the compensation agreed to be paid by B, the greater the need for B to protect himself against any possibility of further action by A to obtain a full measure of redress.
(4) While an express reservation by A of his right to sue C will fortify the inference that A is not treating the sum recovered from B as representing the full measure of his loss, the absence of such a reservation is of lesser and perhaps of no significance, since there is no need for A to reserve a right to do that which A is in the ordinary way fully entitled to do without any such reservation.
(5) If B, on compromising A's claim, wishes to protect himself against any claim against him by C claiming contribution, he may achieve that end either (a) by obtaining an enforceable undertaking by A not to pursue any claim against C relating to the subject matter of the compromise, or (b) by obtaining an indemnity from A against any liability to which B may become subject relating to the subject matter of the compromise."
- Vanden contends that the Consent Order is not a consent judgment, but is simply an order giving effect to a compromise agreement and falls to be considered in the same way. If so, the critical issue is whether that agreement intended to fix the full measure of Vanden's loss and it is submitted that it is clear that it was not so intended. In particular it is stressed that clause 3 uses the language of a compromise agreement rather than of a judgment; clause 3 contemplates proceedings will continue against other parties because it envisages that Vanden will be seeking costs orders against them, and clause 5 provides for the use of materials disclosed by Bolton "in respect of its continuing claim against the First Defendant and the Third Defendant".
- Kras contends that intention is irrelevant where, as in this case, one is ascertaining the effect of a judgment. The latter automatically has effect, whatever the parties intended, because it is an order of the court of the same status as one made after trial. Reliance is placed on the distinction explained by Ramsay J in Community Care North East v Durham County Council  EWHC 959 (QB) at :
"…where the terms are contained in a schedule to the Tomlin order the position is different from the terms being incorporated as part of a consent order…a party can settle a case and seek a court order in one of two ways. First it can seek to incorporate the terms of the settlement within the body of the order so that those terms are part of the court order. The alternative way is by way of a Tomlin order under which the parties seek a stay of the proceedings on terms that the parties will comply with the agreement in the schedule, with liberty to apply to enforce those terms. The court approves and orders the consent order in the first case but only approves and orders the terms of the order but not the terms of the schedule in the second case."
- Kras further relies upon various differences between a consent order and a Tomlin order in terms of approval, breach, enforcement, variation, confidentiality and appeal. Thus a court will not make a consent order unless satisfied that it has power to do so, whilst it has no right to disapprove a Tomlin order and such an order can include matters that the court has no power to order. A breach of a consent order may be punishable as a contempt in appropriate circumstances, whilst the remedy for breach of the scheduled terms of a Tomlin order is a claim for breach of contract. In terms of enforcement, the remedies in CPR Part 83 are available for breach of a consent order but not for breach of a Tomlin order. Variation of a consent order is possible in the interests of justice, whilst rectification would be necessary to vary the contractual terms of a Tomlin order. Confidentiality for a consent order requires CPR 39.2 to be satisfied, whilst it can be contractually agreed for a Tomlin order. An appeal of a consent order is possible subject to the usual permission test, whilst there is no appeal from the agreed terms of a Tomlin order. These differences reflect the fact that a consent order is an order of the court whilst the scheduled terms to a Tomlin order are a contractual agreement.
- In the White Book commentary to CPR 40.1 there is a discussion as to the meaning of a "judgment" or "order" under the RSC and the CPR. It is pointed out that although the CPR refers to the two terms, sometimes in conjunction and sometimes not, "no basis for distinguishing between them can be derived from the rules themselves".
- As Vanden points out, the Consent Order is expressed in similar terms to a Tomlin order. It refers to Bolton being required to pay sums "in full and final settlement of the Claimant's claims" and it purports to stay proceedings "except for the purpose of enforcing and carrying out the terms of the settlement". It is clear, however, that it is not a Tomlin order. A Tomlin order involves a contractual settlement agreement and allows for proceedings to be continued for the purpose of carrying out that agreement. In the Consent Order the settlement terms are part of the court order. Enforcement does not require further proceedings. Application can be made directly to the court to enforce the terms of the order it has made.
- Although the Consent Order purports to stay the proceedings there are in fact no continuing proceedings to be stayed. Vanden already has a court order which it can enforce for payment of its claim and there is no further order to be obtained other than in relation to enforcement.
- If one has regard to what the Consent Order does rather than what it says it requires Bolton to pay a specified sum in respect of Vanden's claims. As far as those claims are concerned it is a final order. If there was judgment for Vanden on its damages claims following a trial a court order for payment in similar terms would be likely to be made. Although the Consent Order does not use the wording of adjudication or judgment, the order it makes is to the same effect as one which would be made following a judgment.
- Since in substance and in effect the order for payment made by the Consent Order is the same as would be made following a judgment I consider that the judge was correct to conclude that it is to be treated as a judgment for the purpose of the rule that satisfaction of a judgment bars claims against tortfeasors liable for the same damage.
- The judge was also correct to hold that in those circumstances the question of whether there was an intention to fix the full amount of the loss does not arise. The judgment fixes the loss regardless of what may have been intended – see Bryanston Finance Ltd v de Vries  1 QB 703 at pp717E-F, 733 (per Lord Denning MR) and p739E-740B (per Lawton LJ).
- Vanden submits that there may be exceptional cases in which satisfaction of a judgment may not bar a claim for the same damage, as recognised by Lord Bingham in Heaton at , referring by way of example to the Scottish case of Crawford v Springfield Co Ltd. Even if that be so, there is no equivalent wording in the Consent Order which might bring it within any such exception.
- The question which then has to be addressed is what claims are thereby barred. The Consent Order refers to settlement of all Vanden's claims and that the settlement sum includes damages of £176,000. It does not, however, seek to make any attribution between the different claims made by Vanden against Bolton.
- The judge gave summary judgment for Kras and thereby held that all Vanden's claims against Kras were barred. Vanden submits that she did not sufficiently analyse the different causes of action advanced and the different remedies claimed.
- One of the claims made by Vanden against Kras, for example, is for injunctive relief. As is rightly accepted by Kras, such a claim cannot be barred by satisfaction of a damages claim. Kras submits, however, that there remains no effective claim for such relief in the light of the undertakings provided by them in the order of HHJ Seymour QC of 20 July 2015. But those undertakings, which were granted until trial or further order, were the equivalent of interim relief whilst Vanden is seeking permanent injunctive relief. It is also seeking relief which goes beyond the undertakings given and in particular delivery up of its confidential information and property. Whilst Kras casts doubt on the practical utility of such orders, in my judgment that is not sufficient reason for summarily dismissing the entirety of the claim for injunctive relief.
- In written submissions, but not orally, Kras argued that the effect of the award of damages to Bolton was to transfer ownership of the confidential information to the Defendants – see Seager v Copydex Ltd (No.2)  1 WLR 809. But, the Consent Order required delivery up by Bolton of the confidential information which is plainly inconsistent with any transfer of its ownership to it. In any event, in circumstances where some confidential documents were transferred to Kras and some to Bolton, settlement of the claim against Bolton would not address ownership of documents separately divulged to Kras.
- In relation to the damages claims made, I agree with the judge that the claim made for damages for conspiracy is a claim for the same damage. Although the pleading covers the possibility that the conspiracy included only two of the three Defendants, it is a single conspiracy which is alleged. The conspiracy claim was one of the claims made against Bolton and is a claim covered by the Consent Order. If Kras is liable for damages on the conspiracy claim it is for the same conspiracy and the same damage as the claim against Bolton.
- In addition to the conspiracy claim there are, however, also claims for damages for breach of confidence and inducing or procuring breach of contract. These claims are made individually against Kras and Bolton. The particulars of breach identify confidential information being provided separately to Kras (paragraphs 23.1.1 – 23.1.5) and to Bolton (paragraphs 23.1.6-23.1.7). The losses occasioned by these separate acts and separate alleged breaches of duty are not necessarily the same and do not necessarily fall within the alleged conspiracy.
- The pleading itself does not particularise the loss and damage being claimed. It is said that further particularisation will be provided as soon as practicable. In oral submissions the importance of disclosure for that purpose has been stressed but the action has been cut short prior to disclosure. Although in paragraph 29 "damages" are claimed in relation to each of the alleged breaches of duty, in the absence of particularisation it cannot be said that the same damages are being claimed. The judge sidestepped this difficulty by finding that the damages claimed were limited to £100,000 by reference to the figure set out in the Claim Form. This, however, was only an estimate of the damages and Vanden's witness statement evidence suggested losses of over £300,000.
- Further, the pleading includes in paragraph 30 a claim for damages based upon a hypothetical licensing of the use of the confidential information or Wrotham Park damages. This is a claim for damages which would appear to be directed at the breach of confidence and/or inducing breach of contract claims since it focuses on the gain made by each Defendant rather than loss suffered by Vanden. It is unlikely to form part of any damages claim for conspiracy. Indeed, there is authority that such damages are not an available remedy for a claim in conspiracy – see the decision of Leggatt J in Marathon Asset Management LLP v Seddon  EWHC 300 (Comm) at -. Although Kras challenges the correctness of this decision and contends that such damages are an available remedy I consider that, if necessary, Vanden has a real prospect of establishing otherwise.
- Vanden has a further point that paragraph 28 claims an account of profits which is not a damages claim at all. Kras submits that this alternative claim is not open to Vanden in the light of its election to claim damages, as reflected in the terms of the Consent Order. It is not necessary to resolve this issue as, even if Vanden is confined to its claim for damages, on the pleadings as they stand it has claims for damages for inducing breach of contract and for breach of confidence which are potentially distinct from the damages claimed for conspiracy.
- The basis of the judge's summary dismissal of all the claims was her finding that by the Consent Order "one of the joint wrongdoers, Bolton, was ordered to pay £176,000 in damages plus costs on a claim brought against three joint wrongdoers for the same damage". In so concluding she accepted Kras's argument that all of the claims made were subsumed within the conspiracy claim. For the reasons outlined above I do not consider that it can be said that all the claims are so subsumed. Quite apart from the injunctive relief claimed, the pleading asserts different causes of action and potentially separate and distinct claims for damages.
- On the basis of ground (1) I accordingly consider that the judge was wrong to give summary judgment in respect of all Vanden's claims. In my judgment summary dismissal should have been confined to the damages claim for conspiracy. To that extent I would allow this appeal.
- As already noted, Kras advanced two further grounds in support of its application, which the judge did not determine. The parties should seek to agree the appropriate terms of the order to be made in those circumstances, failing which short written submissions should be made.
- For the reasons outlined above, I would allow the appeal in respect of all Vanden's claims other than its claim for damages for conspiracy.
- We have received written submissions on costs. In relation to the costs of the applications we consider that the appropriate order is to reserve those costs to the judge hearing the restored applications, alternatively (if such applications are not restored) to the trial judge. They will be best able to assess the significance for the case as a whole of the summary dismissal of the claim for damages for unlawful conspiracy. In relation to the costs of the appeal we regard the outcome of the appeal to be a score draw. Vanden has been partially successful on its appeal and received no offer to compromise its appeal. On the other hand Kras has succeeded on the issue of the effect of the Consent Order and in upholding the dismissal of the conspiracy claim, which is on any view a significant success. In those circumstances we consider that it is appropriate to make no order as to the costs of the appeal.
LADY JUSTICE BLACK:
- I agree.
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