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Cite as: [2014] EWHC 988 (QB)

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Neutral Citation Number: [2014] EWHC 988 (QB)
Claim No: HQ/14/0085

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Claim No: HQ/14/0085
Royal Courts of Justice
Strand,
London WC2A 2LL
21 February 2014

B e f o r e :

MRS JUSTICE SIMLER
____________________

WARM ZONES
Claimant
- and -

(1) SOPHIE THURLEY
(2) ALEX BUCKLEY

Defendants

____________________

Digital Transcript of Wordwave International, a Merrill Corporation Company
165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7421 4046 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com
(Official Shorthand Writers to the Court)

____________________

MR T KIBLING (instructed by Watson Burton) appeared on behalf of the Claimant.
The Defendants appeared in person.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mrs Justice Simler:

  1. This is an application for interim relief arising from the alleged unauthorised use or disclosure by the defendants of the claimant's customer database and information contained within that database, said to be proprietary confidential information belonging to the claimant. The application is made as a matter of urgency now, information having recently come to light, albeit that the incidents referred to occurred almost a year ago.
  2. The claimant is represented by Mr Thomas Kibling of counsel. Both defendants have appeared in person without solicitor or counsel representation, but having taken some limited legal advice in relation to this application .They have made comprehensive representations, opposing the application.
  3. By her acknowledgment of service signed and dated 19 February 2014, the first defendant denied the allegations of misuse of confidential information belonging to the claimant and denied any breach of her confidentiality obligations. She confirmed that she would allow a computer expert to examine her computers, identifying those computers that were available for these purposes, and made clear that, had she been asked by the claimant to do this on a voluntary basis without "going to the extreme of issuing proceedings", she would have been prepared to make the same offer. However, that is not a position she has maintained today. The position of both defendants today is that neither has used or disclosed the claimant's information at any time, and whilst they are both prepared to comply with the affidavit requirements in the draft proposed order sought by the claimant (which would also embrace delivery up of any soft or hard copy documents in their possession) they both resist the parts of the proposed order relating to imaging and inspection of their computers or other electronic storage devices by a computer specialist, who would then provide that material to an independently instructed solicitor nominated by them, but at the cost of the claimant. This latter issue has as a result, been the focus of the dispute before me today.
  4. This being an interlocutory hearing, at which I have received written evidence from the claimant, no evidence formally from either of the defendants albeit I have had a written statement from each of them any views expressed are necessarily provisional. The evidence has, of course, not been tested, and further facts may emerge in due course. Subject to that observation, the fact can be summarised as follows.
  5. The Facts

  6. The claimant is a Community Interest not-for-profit company limited by guarantee. Its objectives include addressing fuel poverty in domestic homes by delivering energy efficient measures and welfare benefit and energy advice. Although it is a not-for-profit company, the claimant operates in a competitive market and has both commercial and proprietary information that would be valuable to any competitor. It programme manages area based energy efficiency projects, targeted principally at low income and other vulnerable households. Its principal funding sources are the energy supply companies obligation schemes, and local authority capital programmes .It operates across 11 geographical zones within the UK.
  7. The first defendant was employed by the claimant as a zone director from 8 January 2007 until her employment was terminated with effect from 15 March 2013. She was responsible for North Staffordshire and Cheshire West in her role, and this involved both strategic and day-to-day management of the claimant's operations in those areas. She operated with significant autonomy and responsibility, reporting to the regional director of the Northern Region.
  8. The second defendant was employed by the claimant as an IT and project manager, also based in North Staffordshire, but his employment ran from 2 November 2009 until 31 March 2013. He reported to the first defendant, and his duties and responsibilities included developing and implementing programmes on levels of fuel poverty. The claimant contends, and this is uncontroversial, that both defendants had regular access to the claimant's database for the North Staffordshire region as a natural incident of their employment, and in order properly to discharge their duties of employment with the claimant. The database contains information about a large number of householders, and has been developed by the claimant, it says, at substantial cost in terms of time, effort and money. The claimant maintains that this database contains important, unique confidential information and property belonging to it. The fact that the claimant recognised the confidentiality of this information is underscored, it says, by the express confidentiality clause contained with the contracts of employment of these defendants.
  9. Both defendants had written contracts of employment in identical terms. Although the copies I have been provided with are not signed, and having initially expressed some doubt as to whether the contracts contained within the bundles are their contracts, both defendants accepted that these were in fact their contracts of employment. Mr Kibling tells me he has signed copies available in any event.
  10. By clause 15 of each contract, the following provision is made:
  11. "15.1 You shall not use or disclose to any person either during or at any time after your employment with the Company any confidential information about the business or affairs of the Company or any of its business contacts, or about any other matters which may come to your knowledge in the course of your employment. For the purposes of this clause 15 confidential information means any information or matter which is not in the public domain and which relates to the affairs of the Company or any of its business contacts, client and/or customer information and/or any information relating to the finances of the Company and, in particular that information concerning the company's Financial and Partnership arrangements."

    There are no restrictive covenants contained within either defendant's employment contract.

  12. In addition to the express terms of their contracts, the claimant relies on a number of implied terms said to arise, as a matter of law, to give business efficacy or to give effect to the presumed intention of the parties. It is undoubtedly the case that both defendants were obliged during the currency of their employments not without reasonable or proper cause to act in a manner that was calculated or likely to destroy or seriously damage the relationship of trust and confidence with the claimant. Beyond that implied term of trust and confidence, the claimant would have to prove at trial the remaining implied terms relied on. The claimant also asserts that the first defendant was a fiduciary, with fiduciary obligations during the currency of her employment. Again this is not a matter that I can accept at face value, and will have to be established, if necessary, at trial.
  13. For reasons that are unnecessary to recite, the first defendant was suspended from work in November 2012 to enable an investigation into her conduct to take place. She remained suspended from work until her employment was summarily terminated on grounds of gross misconduct on 15 March 2013. She has pursued employment tribunal proceedings in relation to that termination, but these are not matters that affect this interlocutory application, save to the extent that it is clear that there may be information on her computers covered by legal professional privilege or litigation privilege, and that is something that would clearly have to be addressed in relation to any order of the kind sought by the claimant if such order is made.
  14. The second defendant, by contrast, gave formal notice of his resignation from employment by letter dated 7 January 2013. In that letter he made clear that he had enjoyed his working time with the claimant, and wished to make the move as easy as possible with the handover of his work. He expressed a willingness to work out his notice period, but asked for his last day of employment to be 28 January 2013. The claimant did not wish to lose his services at that time, and agreement was reached between them whereby he would continue to work until 31 March 2013, on a part-time basis, but at an increased level of remuneration. All other terms and conditions of employment continued as before, although he tells me, and I accept, that when his employment finally came to an end on 31 March 2013, there was a dispute between the parties about the remuneration to which the second defendant was entitled. As a result, proceedings were issued by him, contested by the claimant, but he obtained judgment in the county court for the sums due and owing. He did not suggest in those proceedings, as I understand it, that there was any repudiatory breach of contract by the claimant during the course of his employment, and nor has he done so today, maintaining only that at the end of his employment there was a failure to pay the correct amount of wages due.
  15. As a result of the employment tribunal proceedings pursued by the first defendant an issue arose as to whether the first defendant had secured alternative employment and had received earnings by way of mitigation. It became clear that she had been employed by a company called UK SS Renewal Energy Services Limited ("RES"), and that she had brought proceedings against RES in relation to the termination of that employment. This information led to communication between the claimant and RES, as a result of which further information came to the attention of the claimant about the business dealings both defendants had had with RES in the early part of 2013 and whilst still employed by the claimant.
  16. In his witness statement dated 16 February 2014, William Gillis, the Managing Director of the claimant, states that he was provided with documentation by RES relating to the defendant's business activities with RES. He does not state what date this information came to his attention, but Mr Kibling has indicated that the information became available on 3, 4 and 10 February 2014, and that on 17 February 2014, Mr Christopher Graham, the solicitor acting for the claimant, obtained copies of a county court claim that the first defendant is pursuing against her so-called former employer, RES. Until disclosure of this evidence from RES last week, the claimant was unaware of the fact of or extent of any alleged wrongdoing in relation to confidential information by these defendants.
  17. Mr Gillis describes in his witness statement the information that has recently come to his attention. He has also exhibited a number of relevant documents. Of the material exhibited by him, there are three significant documents. First, an email dated 4 February 2013, in which the first defendant sent Steve Shirley of RES a document headed "Development proposals for RES re energy efficiency ECO and green deal market development". In that document she set out her experience and sought to promote the "value" of her services to RES, a competitor of the claimant, stating:
  18. "The databases and information technology I hold provides other opportunities for business development and targeting market sectors."

    She went on to state:

    "I can identify areas to be targeted which can then be market tested to the energy market to maximise the amount of ECO funding."

    Mr Gillis states that he believes this can only be a reference to the claimant's databases and proprietary information. It suggests, he says, that the first defendant has misused information provided to her for the proper performance of her working duties with the claimant and not publicly available, in breach of her confidentiality obligation whilst still employed by the claimant.

  19. The second document is an email exchange dated 23 April 2013 between the first defendant and Sue Beardmore of RES. At 10.19 a.m. Sue Beardmore asked the first defendant whether she had any tender documents she could have a look at because she was "working on the WM Housing Tender for boiler installs". The first defendant responded at 10.59 a.m stating that she "could bring in my tender file with approx 80 submissions". This is relied on as indicating that the first defendant was prepared to use confidential information made available during the course of her employment for an impermissible purpose in breach of her confidentiality obligations.
  20. The third document is an email sent by the second defendant to Steve Shirley of RES dated 17 April 2013, in which he stated as follows:
  21. "Sophie has told me you may be interested in some affordable warmth group leads, so I have worked on the data I have and have put together a list of leads that could help target your door-knocks and other marketing such as leaflet drops, etc. These are all taken from a much larger data set that covers about a third of the private properties in the local area."
  22. In that email the second defendant goes on to make clear that he had 5,200 addresses, but had refined the search so as, first, to identify households qualifying for affordable warmth funding and, secondly, using measures such as whether the property has a solid wall, or type of boiler system, or storage heater, thereby excluding properties on mains gas. In this way he explains that he has identified a list of leads which might be of interest in the context of the affordable warmth programme. In terms of the quality of the data, he makes clear that it is based on information gathered over the last four years, so that there would be some material that was out of date. The claimant contends that it is clear that this information included, or was comprised of, the claimant's confidential information, and that the period of 4 years coincides with the period of the second defendant's employment with the claimant as its IT and project manager.
  23. Mr Gillis exhibits to his witness statement a Warm Zone database questionnaire created by the claimant and used in the Stoke and Newcastle-under-Lyme areas covered by the North Staffordshire Warm Zone during the defendants' employments. The questionnaire seeks detailed information from householders within the zone about their properties, including in relation to age of property, main wall type, main wall insulation, main space heating system, water heating and whether mains gas is available. There are also questions about the occupants, including age and nature of any benefits received, and the questionnaire makes clear, so far as that latter aspect is concerned, that information would be exchanged with scheme partners, providing advisory and additional services to the scheme, but would not be given to other agencies and would be held or used in accordance with the Data Protection Act 1998.
  24. Using that questionnaire, Mr Gillis explains that the claimant generated a database of some 87,000 households in the North Staffordshire area, comprising the completed data obtained by reference to that standard form. The data is held electronically, though there are manual records available as well. Mr Gillis states that, to the best of his knowledge and belief, the claimant is unique within the sector in the way it collects, maintains and uses this type of data. He explains that the reason the claimant invests time and resources in collecting this data is to enable it to target services to low income households as and when specific schemes for funding become available, and to do so on a cost efficient basis. He explains that affordable warmth is shorthand for the home heating costs reduction element of Energy Company Obligation (or ECO) funding. It is available to private sector households claiming a range of means-tested benefits and other supplements. Along with area-based entitlement, affordable warmth is one of the key elements of ECO targeted at low income households, and this funds the claimant's work. The database accordingly enables the claimant to identify and target households as soon as funding becomes available. In the case of each household, the claimant's database includes details of all the measures identified by the second defendant as having been applied by him in order to refine his search and thereby identify leads for RES. That information, according to Mr Gillis, is not only commercially sensitive, but is confidential and not publicly available, and certainly not publicly available in such a convenient and accessible form. The level of information available to the claimant, including the measures used by the second defendant to refine his data sample and the high percentage of households on which the claimant holds data is, according to Mr Gillis, unique.
  25. Moreover, it is clear from the email dated 5 April 2013 from the second defendant to the first defendant that he cleared the contents of his email with her before sending it to Steve Shirley of RES. Her response to his email was to say: "Yes, reads well. Do you have a list of electric heated properties with solid walls also?" Again, this in context, is highly significant.
  26. Mr Gillis explains that to create a database appropriate for the uses to which the claimant puts it involves an enormous amount of time and resource. As a working example, he says, a good assessor can complete up to 20 assessments per day, or 100 in a week. To establish a database of 100,000 households would take, on that basis, 20 assessor years of work.
  27. The evidence contained in Mr Gillis' witness statement, together with exhibits, were served on the defendants on 17 February 2014. I am satisfied that this is the case by reference to sworn evidence in these proceedings from Mark Heath, a process server, dated 19 February 2014. But despite that, neither defendant has put in any sworn evidence in response to that evidence. Instead, the first defendant has produced a typed document attached to the acknowledgment of service without a statement of truth in the form ordinarily required and, as I have already indicated, has attended and made representations today. The second defendant has produced a 5-page typed statement of facts signed as true to the best of his knowledge, and dated 20 February 2014, and he too has amplified that document by way of representations today.
  28. The first defendant accepts that the three documents referred to above, raise a serious question to be tried. She realistically agreed that, on their face, these documents give rise to a serious concern of misuse of the claimant's database information. She explains, however, that she has never misused the claimant's information, and that these documents are evidence of "sales type" activity, where she and the second defendant were, in effect, "talking up the data that they had". The email exchange of 23 April, in particular, raised no issue and the claimant's reliance on it represents a fishing exercise. She explains that she had worked for over 20 years before joining the claimant, preparing proposals and tenders before joining the claimant, and would have had a bank of such documents at her disposal. She says this is quite obviously what she was referring to in her email response to Sue Beardmore, and that the claimant well knew this.
  29. The second defendant takes two main points of objection to this application. First, he asserts that the so-called proprietary information does not belong to the claimant. He asserts that it was collected on behalf of Stoke on Trent City Council, and that the database is in fact the property of Stoke on Trent City Council. He has produced no evidence to support this assertion, and has suggested rather that the claimant should have obtained a letter from Stoke on Trent City Council in this regard. The second defendant could have obtained such evidence from the City Council by way of a statement or letter, had he chosen to do so. He has not.
  30. Secondly, he maintains (like the first defendant) that he did not at any time use the claimant's data and that the suspicion that arises from the documents referred to comes from the fact that these are "Very much a sales-type pitch worded to impress". He states that the information referred to by him in the email to RES, in particular, was available from public domain sources he has identified, including the multiple deprivation index documents, census data, or Google Street Map, and other such sources, and he maintains that that is where he obtained the information that enabled him to refine his leads. He nevertheless agreed that for a non-expert without experience in this field, these documents do give rise to reasonable suspicion and concern. He maintains, however, that once it is understood that the terms used are standard industry terms, and their context is understood, no such suspicion is justified. Furthermore, he states that the most valuable aspect of information within the claimant's database would have been the names of particular householders. He points to the sentence in the 5 April email prepared by him, where he states: "Also, and importantly, there is no personal data attached, as I can't give you the household names or benefit details, so I've priced them accordingly". This, he says, strongly supports his case that he was not using the claimant's data because, if he had been doing so, he would have included just that sort of information. He denies that the prohibition under the Data Protection Act 1998 is the explanation for not providing that personal data. He urges me to accept his word and, on that basis, he maintains that there is no issue to be tried between the parties in this case. Moreover, he does not believe that the claimant is genuine in wanting to know whether and to what extent its confidential information has been used or disclosed; rather, he regards this application as part of an attempt to hound the defendants and, in particular, as part of a campaign to persecute the first defendant at a critical point in the employment tribunal proceedings between her and the claimant. Had he been satisfied that the claimant was genuine in wanting to know to what extent its confidential information has been used, he would have accepted that the documents identified above would have afforded a basis for the order sought. Ultimately, he explained that his real objection to allowing access to his computers, pursuant to this application, was based on his concern that documents covered by legal privilege relevant to the first defendant's employment tribunal would be obtained pursuant to this order, and to her detriment.
  31. The applicable legal principles

  32. It is well established that the principles ordinarily to be applied on an application for an interlocutory injunction are those set out in American Cyanamid. Where a mandatory injunction is sought however, because courts are more reluctant to grant such injunctions than they are to grant prohibitory injunctions. The reason for that, as described by Hoffman J (as he then was) in the Films Rover case, is the risk of making a "wrong" decision, in the sense of granting an injunction to a party who fails to establish his right at trial. That problem is minimised or diminished if the court takes whichever course appears to carry the lower risk of injustice, should it turn out that the order has been made wrongly on that basis. Thus, where an application for interim relief involves a mandatory interlocutory injunction, the principles to be applied are those summarised in the judgment of Chadwick J (as he then was) in Nottingham Building Society v Eurodynamics Systems [1993] FSR 468 at 474 ( approved by the Court of Appeal in Mercury Communications Limited, 27 August 1997). Those principles are as follows:
  33. "First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be 'wrong' in the sense described by Hoffman J.

    Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo.

    Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish this right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted.

    But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted."

  34. So far as what constitutes a breach of confidence or an unauthorised use of confidential information is concerned, the information in question must have the necessary quality of confidence about it. It must have been communicated in circumstances importing an obligation of confidence, and there must have been an unauthorised use of the information to the detriment of the party communicating it - see Coco v AM Clark Engineers. The information must be neither public property, nor public knowledge, and although it need not be commercially valuable, the preservation of its confidentiality must be of significant concern to the claimant. An obligation of confidence may, of course, be imposed by contract. Where parties are linked by a contract of employment, the obligations of the employee are inevitably determined by the contract between those parties. Moreover, even in the absence of an express term, the obligations of employees during the course of employment in respect of the use and disclosure of information will be subject to the implied term of good faith or trust and confidence.
  35. It is not necessary on this application to consider the limits of the implied term and whether it extends as far as contended for by the claimant in their particulars of claim, because it is well established that this duty of good faith is broken where, during the course of employment, an employee makes or copies a list of customers of the employer, or information from a database relating to customers and their requirements for use after the employment ends see (if necessary) Robb v Green (1895) 2 QB 315 and Wessex Dairies Limited v Smith [1935] 1 KB 80.
  36. The position is, more restricted once the employment has come to an end. A covenant against post employment use of confidential information is unenforceable as being in restraint of trade insofar as it purports to prevent the ex-employee from using, for his own benefit or that of the subsequent employer, information which has become part of his general skill, knowledge and experience. This is the case whether the contract contains an express confidentiality clause, or merely an implied term. Thus, absent a restrictive covenant, the ex-employee can only be restricted from using information which is a trade secret or akin to a trade secret. So far as this application is concerned, that difficult question whether the information here amounts to a trade secret or akin to a trade secret is a question that does not need to be resolved today, although it will need to be resolved at a trial, if that is the way these proceedings go. For today's purposes, since there are allegations of alleged misuse and/or disclosure of confidential information occurring during the course of both defendants' employments, this is not a question that requires resolution today.
  37. The application and its disposal

  38. Against that background, Mr Kibling contends that there is a plainly a serious issue to be tried in this case. He maintains that the claimant has an incontrovertible right to protect its confidential information and the defendants have a corresponding legal obligation not to make unauthorised disclosures or use of that confidential information. This is not a case in which, he says, there is a real doubt about, for example, the reasonableness of a post-termination restrictive covenant that would fall to be resolved at trial. He maintains that the court can have a high degree of assurance about the strength of the claimant's claim; that damages would not be an adequate remedy; and that, in any event, the claimant is in a position to provide a reliable cross-undertaking in damages. Whereas, he says, the defendants are unlikely to be in a position to satisfy any award of damages ultimately made in the claimant's favour. Put simply, he contends, not granting an interim injunction in this case is likely to cause irremediable prejudice to the claimant.
  39. Against that, the defendants contend that the provision of affidavit evidence, which they have this morning consented to, together with delivery up, is sufficient and should be an end of this matter. The further order sought, they say, is not for the purpose of identifying whether genuinely confidential information has been used or disclosed by them in breach of their obligations. Rather, it is a fishing exercise for emails particularly relevant to the employment tribunal proceedings between the first defendant and the claimant, and is part of a process of harassment of both defendants.
  40. I cannot accept the defendants' arguments. In my judgment, this is a case where the overriding consideration for the court is to choose the course that will involve the least risk of injustice if it ultimately transpires that the chosen course is wrong. In my judgment, the least risk of injustice is to make the order sought today with the undertaking in damages the claimant has given that will compensate the defendants in due course if the course chosen proves to be wrong. My reasons for adopting that approach are as follows.
  41. Mr Gillis' witness statement is, cogent evidence that the claimant does indeed have a unique proprietary database created over many years, using significant resource, that has commercial value and contains a package of information not readily available, certainly in the form of that package, in the public domain. It is clear from the evidence on both sides, that in order to produce information of that kind, it would be necessary to consult many separate sources of information. Moreover, to have the information available in the package represented by the database is of considerable utility and increases enormously the accessibility of the information and the ability to respond quickly to new forms of energy benefits identified. I am satisfied that the evidence supports the conclusion that there is a serious issue to be tried that the claimant has confidential information it is entitled to protect. The only challenge to that evidence from the defendants is the suggestion that the material in fact belongs to the City Council. But no independent evidence to substantiate this ascertain has been provided, and this issue will have to be tried. I am also satisfied, given the terms of the contract both defendants had with the claimant, that the information was imparted in circumstances importing an obligation of confidentiality to those employees who had access to it for the purposes of their employment and for completing their duties with the claimant. Furthermore, the evidence exhibited to Mr Gillis' witness statement in particular, the emails referred to above ,and other material including evidence relating to the second defendant's establishment of a company called Carbon Ton Limited, is cogent prima facie evidence of misuse by the defendants of the claimant's database or information contained within it during the course of their employments. The defendants accept that, taken at face value that is indeed what these documents show. However, they maintain strongly that the emails represent them talking themselves up, and that they only had information that was available in the public domain at their disposal. I cannot resolve these issues without evidence given on oath, tested by cross-examination at trial. But, in my judgment, this material undoubtedly raises a serious issue to be tried in relation to the unauthorised use or disclosure by the defendants of proprietary confidential information belonging to the claimant and will require some explaining from them in due course.
  42. Given that mandatory interim relief is sought in, I am bound to consider what degree of assurance I have, based on the evidence so far available, that the claimant will be able to establish this case at trial. My preliminary view, based on Mr Gillis' evidence and the email correspondence I have referred to, and bearing in mind the points raised by the defendants which, with all due respect to them, I have a high degree of scepticism about, it is my judgment that the court can have a high degree of assurance about the strength of the claimant's claim, and that is particularly the case since it relates principally to allegations of breach while their employment was subsisting. There will be a higher burden on the claimant so far as establishing breach of confidence is concerned in relation to any unauthorised use alleged after employment ended, but, as I have already indicated, that will be a matter to be argued about and ultimately resolved at the trial of this action, and does not require resolution today.
  43. So far as the balance of convenience is concerned, damages are rarely an adequate remedy in cases of this kind, and this case is no exception. Moreover, the claimant is in a position to provide a sound cross-undertaking in damages, and has done so by reference to financial statements for the year to March 2013. Conversely, there is no guarantee that the defendants will be in a position in due course, if necessary, to satisfy any award of damages made by the court in the claimant's favour. Further, in assessing the balance of convenience, I agree with Mr Kibling that it is of relevance that the claimant is not here seeking to restrain the defendants from working in their chosen fields, whether in competition with the claimant or not. Both defendants are free to do so. They are only prevented from doing so if they use, misuse, or disclose the claimant's confidential information. In my judgment, the order sought by the claimant is a focused one, designed simply to secure the return, protection and security of its confidential information. Subject to one matter referred to below, I am satisfied that the balance of convenience in this case lies firmly in favour of granting the imaging and inspection order sought by the claimant. If, as the defendants have strongly maintained, they have done nothing wrong, this order is likely to bring the litigation to a swift end, because it will identify no wrong doing on their parts. The claimant will bear the costs of the instruction of a solicitor instructed independently to inspect the images obtained. Moreover, I am quite satisfied that, given the terms of the emails referred to above, there is a strong, objectively justified basis for the claimant's suspicion in respect of the defendants' conduct, and there is nothing, in my judgment, to support the defendants' assertions that this action is being taken merely to harass or persecute them. The timing of the application is explicable by reference to the course of the employment tribunal proceedings, but there is no evidence to support any other connection or the strong suspicion expressed by the defendants about the lack of genuineness on the part of the claimant..
  44. The only matter advanced by the defendants that has caused me concern was raised very properly by the first defendant and related to third party data and client confidential information that may be contained on her computer or computers, and indeed on those of the second defendant. She referred, in particular, to data in relation to housing associations, energy companies, and Stoke City Council. Mr Kibling has made clear that any order granted would have to address these perfectly proper and reasonable concerns, and has told me that the claimant is content to provide safeguards in respect of any client confidential or third party data on the defendants' computers that are inspected pursuant to an order of this court. I am grateful for those assurances, which satisfy my concerns. I hope that they will satisfy the concerns expressed by the defendants.
  45. For all those reasons, I am satisfied that the least risk of injustice is to make the order sought by the claimant, and I will hear from counsel as to the precise terms of that order in light of the assurances given by Mr Kibling. It may be that time is needed for the parties to discuss the precise terms of the order in order to address the concerns I have already identified and, if that be the case, I would be more than happy to initial a draft order received in due course.
  46. _______________


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