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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Borax Europe Ltd v Cave [2002] EWCA Civ 741 (26 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/741.html Cite as: [2002] EWCA Civ 741

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL AND TO RELY
ON FURTHER EVIDENCE

		Royal Courts of Justice Strand London WC2 Friday, 26th April 2002

1. LORD JUSTICE BUXTON: Mr Cave seeks permission to appeal from an order of His Honour Judge Peter Clark made in proceedings brought against Mr Cave by his former employer, Borax Europe Ltd, that order having been made on 15th February 2002. The order was, first, that Mr Cave should deliver up various documents and recorded information that he had allegedly taken away with him when he left the claimant's employment. Secondly, and more particularly, which is what Mr Cave seeks to complain of before this court, is an injunction restraining Mr Cave in perpetuity from using or disclosing any confidential information of a nature set out in a schedule to the order.
2. I do not need in this judgment to set out the background facts of this matter because they are contained in some detail in the judge's judgment. Anyone who wishes further illumination as to this judgment may consult the judgment in the court below.
3. Mr Cave's contention is either that the injunction should not have been made at all; or that it should not have been made for an extended period. He bases that, first, on the contention that the information to which the order relates was not confidential information. Secondly, that its publication to the world or its use by Mr Cave in a business competing with Borax would not damage Borax. Thirdly, because of its perpetual nature, the injuction constitutes a restraint of trade or breach of the law of contract, Mr Cave pointing out that in his contract with Borax there was no anti-competition clause on termination, but that wrongly - and as conceded, he says, by counsel for Borax - this injunction is being used under the guise of protection of confidential information to create effectively the restrictive covenant unlimited as to time or area that the employer could not have included within his employment contract, and did not include.
4. The judge heard lengthy submissions proceedings on this matter, much of which Mr Cave tells me was in fact directed to the disputed questions of what Mr Cave had removed and when he had removed it upon leaving Borax's employ. The judge did consider, first of all, whether the information that was sought to be restrained was confidential and its dissemination damaging to Borax; and, secondly, whether it was necessary to protect Borax by means of an injunction. He found that use of this information would indeed damage Borax. That, I am bound to say, is a conclusion that is not surprising to anyone who has any experience of this field. One only has to look at the list of information set out in schedule 2 to the order - such as the identities and contact details of the claimant's customers, the operating profit per employee of the claimant, targets for new business developments and cost control mechanisms, to quote but a few examples - to realise that, first of all, this is material that, of its nature, is confidential to an employee; and, secondly, having heard the evidence, it is very difficult to say the judge misdirected himself or erred in law by saying that it was -

"axiomatic that such misuse will cause real harm to the claimant in the marketplace."

5. Mr Cave says Borax are very large, and the sort of pinprick that he might assert on them by his own business using this information would not have much effect on them. I emphasise that I do not use his own language; I paraphrase what he said. That may or may not be so. But the question for the court is whether there is going to be a significant effect on the claimant, not whether that effect in the whole context of their business is going to be proportionally significant or not, and here the judge is entitled to accept the evidence he heard of the damaging nature of this information.
6. Should there be an injunction? An interim injunction had been obtained. The judge was asked to extend it, as he agreed to do. The contentions of Mr Cave before him were, as they are before me, as I understand it, that such an injunction was not necessary and perhaps undertakings could be put in its place. The judge considered this matter in some detail on the basis of Mr Cave's behaviour upon leaving his employer, the account that he gave of it, and the way in which he had conducted the case before the judge. He said:

" ..... his very behaviour since leaving the claimant, as he accepted to me, gives rise to grave suspicion that he has retained and will misuse the claimant's confidential information, which tends me towards continuing the protection presently afforded to the claimant by the undertakings originally given by the defendant to Gray J."

7. That was a conclusion that the judge was entitled, on the evidence he heard, to reach. This court will not go behind it. Further, as I understand it, Mr Cave has never suggested that he is not going to use such information as he has. In argument today he suggested such use would not be damaging or relevantly damaging to Borax.
8. The judge was quite right, in my judgement, to reach the conclusion that he did. Earlier in his judgment he gave a lot of detail of events and other exchanges that have led him to that conclusion. It is not right to say that the judge was precluded from that course by considerations of restraint of trade. It is not merely a lawyer's point to say that considerations of breach of confidence and considerations of restraint of trade fall into different categories. An employer can impose a covenant on his employee in restraint of trade in certain limited circumstances even though he is not able to point to any confidential information that the employee might subsequently misuse. Such covenants are jealously regarded by the law for that very reason, that they prevent competition of any sort, and not just competition using confidential information. It is for that reason that the law has placed restrictions on them. Once the employer can demonstrate, as Borax demonstrated in this case, that there is confidential information in the hands of the employee; and once they can show that they are liable to be damaged by its use; they are entitled to restrict the use that is made of that information. If needs be, in an appropriate case they are entitled to restrict its use in perpetuity, bearing in mind always of course that that restriction only pertains while the information remains confidential and not otherwise in the public domain.
9. Therefore there is no ground, in my judgement, for saying that the judge was wrong in granting this injunction.
10. I should mention two other things. Mr Cave has complained that he has had difficulty in obtaining the transcript of the proceedings, that is to say, of the evidence and submissions. The judge was not prepared to make an order that he should have such a transcript at public expense. Borax apparently had caused their own transcript to be made. They indicated they would make that available to Mr Cave only under certain conditions of confidentiality. I have been told no more about that, but he indicated that he was not prepared to accept that condition. The transcript being a transcript hired and paid for by Borax, not a transcript made by the court, they were entitled in law to impose what restrictions they wished on that document. More particularly, I have not been told anything by Mr Cave that even starts to suggest that a transcript of this lengthy hearing would reveal anything that supported his case. He was in court and, albeit under the difficulties of a litigant in person, he has told me nothing that suggests that anything would be shown by further consideration of the transcript.
11. He made a complaint in the grounds of appeal about the costs order made against him, pointing out that at one point he had received assistance pro bono, and had difficulties with the Legal Services Commission in obtaining legal aid. I fear that until he obtains an order for legal aid he is not an assisted person and therefore the particular provisions about making costs against assisted persons do not apply to him.
12. There is nothing in the points put before me that suggests there is anything in this case to justify intervention by the Court of Appeal.
13. I do not allow permission.
Order: Application refused