by David Cooper
‘Dear Mr Wagstaff
Thank you for your correspondence on behalf of Wayne Avery and Wave Professional Recruitment Limited.
I note your interest, but will not be drawn further in relation to (a) the time estimate for this Thursday’s application and (b) your comments about the costs of the application, until I have had sight of your clients’ reply evidence.
I am obliged for your confirmation that you will be briefing Grant Collins on Thursday. My Counsel is Gilbert Hopkinson.
Regards
Lennie Rose’
Having sent his response, he fired off a brief updating email to Karen and advised her not to panic, but to sit tight and wait to see exactly how Avery was going to put his side of the story, such as it may be. Karen’s reply came back in five minutes, simply expressing her hope that Lennie understood just how hard it was for her to be kept in suspense.
* * * * *
“What are you doing here?” Craven’s question reflected his shock and dismay at the sight of a stranger sitting in his office.
On the previous Friday afternoon, once Craven had calmed down after the horror of the abortive lunchtime pub trip, he had meticulously taken stock of all of the files that had been handed over to him. Having placed all those that called for no immediate further action in the cabinets, he was still left with a substantial number of client matters to progress. On some of them, he had taken a few initial steps, but still needed to address everything they called for. There were others where he had only just started to familiarise himself, or had not yet had the time to do anything at all upon them. These he had carefully arranged in a logical sequence on the spare office desk.
On that Monday morning, he had reached the office twenty minutes late thanks to a signal failure at Smethwick. Oblivious to the fact that no one would have even noticed his involuntary absence, let alone mentioned it, he had hurried all the way from the station and arrived in a breathless state. Hoping for a few minutes of calm composure before making a start on the working week, he entered the open door of his office to find all of his meticulously organised files in random stacks on the floor. And an unfamiliar face at the spare desk.
“It’s my seat. Are all those your files?”
Craven detected no sign of respect in either the answer or the question, despite the fact that the stranger’s youthful appearance gave him away as a trainee solicitor. The creased shirt and the carelessly fastened tie left little room for doubt. And the unmistakeable odour of cigarette smoke was jarring.
“Yes, they are my files. Couldn’t you have asked before moving them?”
“Sorry.” The answer was more a throwaway remark than a genuine apology. “You must be Paul Craven. I’ve heard about you. I’m Jake Hutchings. Roger Blake’s trainee, as from today.”
Craven accepted the outstretched hand with a sense of anxiety, wondering exactly what the new occupant slouched in the chair beside the spare desk might have heard about him. A brief and uncomfortable flashback to the previous Friday lunchtime was far from reassuring.
“No one told me I’d be sharing an office.”
“Just back off holiday. I’d certainly been told about it.” Hutchings replied.
“How come you’re not sitting with Roger Blake?” Craven could not understand why his unwanted companion was not under the direct first hand control of his assigned supervisor.
“No idea. I just do as I’m told.”
At that moment, the phone on Hutchings’ desk rang. While Craven resigned himself to the task of reorganising his once carefully arranged files, he found himself involuntarily listening to one half of a long social call, with his new room mate expounding upon what had evidently been a week of bar crawling somewhere in the Mediterranean. With the last of the files restored within a logical sequence, and the graphic recollection of holiday memories still in full flow, he left the office in search of an explanation. Blake had said nothing at all about any arrangement of that kind during Craven’s first week at the firm. On discovering that he was out at court, Craven asked Caroline Shore if she could throw any light on what had taken place. Her response only added to his displeasure.
“Rufus thought it would be a good idea for Jake to share in some of my files too, and Roger fancied a spell on his own for this trainee cycle. He’s had five in his office in succession.”
Craven gave an involuntary gasp. The thought of being put under any pressure to delegate work to a complete novice and then correct it, rather than simply work alone as had always been his practice, filled him with horror.
“But I’ve never had a trainee sitting with me before. Surely it’s against regulations anyway? I’m only a legal executive.”
“I’ve no idea. I’m sure Roger will look after most of it. Anyway, there’s something else you need to know.”
Caroline rapidly explained that Hutchings was the son of a top client of the firm. Six months earlier, he had unexpectedly joined Bastable & Co half way through his training contract when his original employer, a prestigious London firm, had taken exception to a widely publicised social media exchange of a highly personal nature between him and a female trainee accountant from an equally upmarket practice. His online bragging about his exploits to his circle of like minded friends, who had accidentally created a domino effect when they forwarded the messages that Hutchings had shared, had not gone down at all well with a firm whose reputation was founded upon its client base of landed families.
“So we end up taking on a lout like that? He stinks of stale ashtrays as well.”
“Best not ask.” Caroline answered. “Between you and me, rumour has it that his dad’s promised to buy him a house and a car if he gets his act together and qualifies. Not that a car will do him much good until his driving ban’s expired. I’ve got to go. I’ll leave you to it.”
Resigning himself to his fate, Craven returned to his office. He tried his best to concentrate on the next of his more pressing matters, unnerved as he was by Hutchings’ mere presence. But on the third occasion when Hutchings launched into his holiday tales for the benefit of an unfamiliar face wandering in through the open door, reckless to the disturbance they were causing, Craven’s tolerance was stretched beyond limits. He interrupted them and requested that they carried on their conversation outside. Having received an insolent look from Hutchings in response, accompanied by an offensive gesture that the latest visitor made no effort to hide, his patience finally snapped. He painstakingly typed a summary of his predicament for Squire’s benefit before hitting the Send command. Half an hour later, he found himself summoned to Squire’s office.
“Couldn’t you have just caught me for a quiet word, rather than email a memo?”
It was evident that Squire was far from pleased. Craven quaked inwardly and mumbled an apology.
“People read these things, you know.” Squire continued. “You don’t seem to have given enough thought to client relations.”
In his memo to Squire, Craven had explained how his work had been interrupted earlier that morning. He had gone on to ask either for his unwanted companion to be moved, or that he himself might be found a base somewhere else on the department floor. He had not appreciated that by going on to expand upon his theme, weighing up the advantages of keeping Hutchings’ father happy alongside the disadvantages to his personal productivity, he would end up pouring oil on troubled waters.
“I can’t go back on what I promised Roger.” Squire thought for a moment, realising that he ought not to be too dismissive of Craven’s concerns, despite his exasperation with his latest recruit and the way in which he had made his complaint. “If you really can’t put up with it, the only option’s room twenty six. It’s been a box room for the last six months rather than an office. No natural light, no room to swing a cat, and right next to the back staircase. Go and have a look, and if that’s what you want, tell the admin boys to empty it and wire it up.”
Craven did not take long, once he had looked at the alternative office, t
o realise that it was in one sense every inch as uninviting as Squire had described. But knowing that he would find it intolerable to remain where he was, with Hutchings in such proximity, it was a virtual godsend. Tucked away in the most distant corner from the main entrance to the departmental floor, it held out the advantage of fewer interruptions and less impact from the open door policy. With a promise of a seamless relocation of his files and effects overnight, Craven managed a more productive afternoon’s work. It never occurred to him to share his decision with Hutchings, whom he studiously ignored for the rest of the day.
Wednesday 10 th April
“Still no news about tomorrow?” Karen’s anxiety was gaining the upper hand.
“Not a word.” Lennie replied. “And they’re running a real risk. If they serve their reply evidence too close to the hearing, there’s a fair few judges who’d just refuse to read it. Either that, or they’d be on your side from the word go.”
Lennie had heard from an increasingly worried Karen at midday. There were just over twenty four hours to go before the application was due to be heard. He had done his best to assure her that the case for an immediate injunction against Avery was still robust, well explained and very much on the moral high ground.
“But please don’t forget, Karen, you know that’s as far as I can commit myself. There’s always going to be two sides to the story in a case like this.”
“I know. Where’s this Wagstaff man from anyway? I’m pretty sure I’ve never heard of him from any of the firms I’ve ever dealt with.”
“According to the Law Society directory, Lewis Hackett. Edgbaston firm, but I think there’s been a change…”
“No, never dealt with them.” Karen interrupted. “And if Wayne’s the kind of person they want as a client, I don’t think I ever will be dealing with them.”
“OK. I promise I’ll let you know the minute I hear anything. Hopefully there’ll be a massive climbdown.”
It was no fault of Lennie’s that he could never have predicted just how far wrong his guess would be.
Just under an hour later, Lennie received an email from BLH Solicitors. It confirmed that they were successors to the former practice of Lewis Hackett. The reply evidence was attached, comprising one statement from Avery himself, and one from Wagstaff in his role as Avery’s solicitor. Lennie was effectively left with just over one working day in which to assess it, advise Karen on its contents and effect, and obtain as much constructive input from her as time and emotion permitted. In turn he would have to make sure that Gilbert Hopkinson, the barrister he had briefed to argue Karen’s case, was fully conversant with the new material. Having forwarded the email to both of them, promising his own thoughts as soon as possible, he set himself to the task of working through both statements in detail.
It was not long before he had to pause for thought. Karen had taken pains to confirm that despite the tense background, there was no sign of any personal ill feeling when Avery had chosen to resign and leave straight away, sparing her the need to make her mind up. But Avery’s version of events was markedly different. On the previous Thursday, as he would have it, Karen had told him outright that she would definitely have to terminate his employment. Following three days of hardly sleeping or eating, he had decided that his only option was to set up on his own, and to try his best to earn a living by using his personal skills and expertise in the recruitment industry, the only field he had ever known.
‘I am advised by my solicitors and I verily believe that by effectively dismissing me on short notice on Thursday 14 March, Ms Rutherford committed a serious breach of contract that I was entitled to accept, bringing the contract to an end. Because of this serious breach, she cannot therefore rely on the post termination restraints any longer, all of which are null and void.’
Lennie was torn. He immediately realised that his opponents had resorted to a scarcely permissible rhetorical device. They had ignored the rule that statements should only consist of facts either known to the witness, or presented by the witness with the authority of the person who knew those facts. A point of partisan legal advice, anticipating opinion and argument, was nothing of the kind. It was beyond the pale for any responsible solicitor. He thought of the aggressive manner in which Wagstaff had introduced himself earlier that week, and concluded that this could only be a deliberate tactic.
But he was still troubled. Might Karen have given him an incomplete or inaccurate version of events, when led astray by her sense of betrayal? Could she have accidentally ruined her own chances in the process? The underlying legal point cited by Avery, that someone who had fundamentally breached a contract could no longer rely on its favourable parts at all, was entirely sound.
Just as quickly, he realised that the point was not an outright game changer. The conflict between Karen’s recollection and Avery’s would still ultimately have to be resolved at a full trial, where they would each give evidence in person. Then and there, the issue for the following day’s court appearance was still whether there was a serious case to be tried, and whether the balance of convenience lay in favour of an immediate injunction rather than against it. And it would all turn on legal argument over the relatively limited amount of material that the judge would be asked to consider.
Reading on, Lennie gave short shrift to Avery’s attempt to blame his redundancy on the fact that he was the only man working at Ripple. In Avery’s opinion, Karen had incorrectly closed her mind to the duty to choose one individual from a selection pool comprising Avery and Neeta Patel, and had arguably committed an act of sex discrimination by focusing on him alone. But Lennie was fully aware of the fact that the two of them worked in different sectors, one unaffected by the downturn while the other was in decline. He brushed the argument aside as a makeweight.
As he looked down to the next section, he suppressed an outbreak of laughter. Avery was reserving his right to submit an employment tribunal claim against Ripple, and asserting almost in throwaway fashion that his status as a director of Ripple was never much more than a courtesy title. In doing so, Avery had glossed over the inescapable fact that he was not merely held out to candidates and clients as a director. Companies House records had confirmed that this was his official status, alongside Karen, until his formal resignation.
Lennie moved on to find out how Avery would explain the paralegals’ collective defection to Wave Recruitment. Avery was readily admitting that he had provided a template to Chris Thompson, the first of the paralegals, to facilitate him in giving notice. But he was asserting that he had only done so after Thompson found out by chance about Avery’s new business and took the initiative to contact Avery with a view to jumping ship.
As to the other two, Mark Davenport and Dale Rider, Avery’s explanation was far from clear. Lennie was left guessing whether Avery was stating that they contacted him for the template, or obtained it from Thompson. He wondered whether the ambiguity was deliberate. And Avery had again rounded off his purported explanation with a rhetorical device.
‘Now that I know what I do about Ms Rutherford’s breach of contract, I am advised and I verily believe that I would have been free to approach the three individuals anyway.’
But you still haven’t nailed your colours to one single mast, Lennie thought. You’re trying to have it both ways. You’re making out that you didn’t poach them, but then you’re arguing that you were free to poach them anyway. That won’t go down well, surely?
Lennie found the next section greatly irritating. Without referring to any supporting evidence, Avery had questioned Ripple’s financial position, citing the economic background that Karen had relied upon to justify making him redundant, alongside the poor outlook for legal professional recruitment generally. He had gone on to contend that Ripple would not be good for the losses he would suffer over the remaining period of the post termination restraint, in the event that a temporary injunction was imposed now but quashed as legally incorrect many months down the line.
“An
d you’re setting up your own business in the middle of all that?” Lennie snapped at the text on the screen. “Come off it.”
Lennie read on to the end and found Avery’s reasons for believing that he and Wave Recruitment should not be subjected to any interim injunction until trial.
‘If I am prevented, in all of the circumstances described above, from carrying on my activities in my long chosen field – recruitment consultancy – for any length of time, it will effectively strangle my new small business at birth. I have entered into commitments with my bank and my landlord that have already involved personal guarantees. I hope to take on staff in the immediate future. It would surely be wrong for candidates and employers to be deprived of choice in how they expanded their careers and businesses, in the event that they found themselves unable to engage my services merely as a result of some legal nicety…’
A thought flickered in Lennie’s mind about the scope this might give for an interesting academic debate. The essential purpose of the recruitment industry was to introduce candidates to employers, with a view to their mutual benefit from a future employment relationship. There would in turn be wider benefits for the national economy in general, as a result of candidates finding gainful employment in a happier environment, and companies engaging productive new employees.
So might the recruitment industry ever be looked upon as a special situation? So special, perhaps, that non-solicitation clauses in headhunters’ service agreements should all be struck down, on public policy grounds? Might it ever be thought that candidates who were looking for better paid and more rewarding jobs should be fair game for anyone at all who could help them achieve those aims?
Surely not, he concluded. If there was a free for all, it would end up killing the industry. In circumstances like that, no consultants would ever want to share the private professional relationship that they had built up with a candidate. The process of efficient recruitment would stagnate. The law of unintended consequences, many times over.
