by David Cooper
Karen explained what she had in mind. Her plea won Lennie over.
“OK, purely on humanitarian grounds, I won’t try to stop you. But let’s see what Soraya thinks first.”
Karen looked across to the judge’s podium and saw the clerk leaving, his business evidently concluded. She hurried forwards and almost knocked Soraya off her feet with the force of her embrace.
“I can’t thank you enough for what you’ve done for me today. The way you managed to pick up on that missing text message. If you’d seen Wayne’s face when the judge gave us the date…”
“I can imagine.” Not for the first time, Soraya carefully disentangled herself. “I don’t want to speak too soon, but that really should have clinched it for you. On every single one of the issues, including the injunction. Shall I tell you why?”
“Go on.”
“Look at the judgment from the very first hearing, the one before I came on board. The time when you were trying to stop Wayne in his tracks right at the beginning. Wayne put himself across as Mr Clean when he knew he wasn’t anything of the kind. Think of what we know now. On the very day you told Wayne he might be redundant, Craven’s being interviewed at Bastables. Wayne must have fixed it on the quiet for his own benefit when he was still your employee and your director. Before he set up on his own. If all that had come out at the time, I think you’d have won the injunction then and there. And you’d probably have struck a decent deal to get rid of the whole dispute at least two months ago. We wouldn’t have needed to be here this week.”
“I hope you’re right. But in one sense I’m glad we are here.” Karen faltered. “I’d never have met you professionally otherwise. And I’d never have seen Wayne and his cronies taken apart quite like that…”
Karen suddenly found herself moved to tears. Lennie quickly spoke up.
“Come to think of it, Soraya, I wouldn’t have met you either. So much for that damned silly rule at my firm, saying we should always instruct counsel from London. I owe Alex Harris a pint. Or maybe several. Before I forget, can I show you this lot?”
Lennie passed Soraya the set of emails that had inadvertently served to swing Craven’s allegiance. She glanced through them in amazement.
“Unbelievable. I can tell you now, I really feel for him. How could anyone deserve an employer like that? I wouldn’t like to be in their shoes if these ever saw the light of day.”
Karen was on the verge of speaking up, but held back, her composure not quite fully restored.
“I’d act for him pro bono if he wanted to sue them!” Lennie said. “Just to see Squire put through the wringer.”
“As long as you brief me for the employment tribunal! Seriously, I’ve just been thinking about what Squire said when he was on the stand.” Soraya pointed to the trial bundle. “In a sense he was really quite clever. Cunning, I should say. The way he made out what a busy lawyer he was, day in day out, couldn’t remember everything that crossed his desk. But he must have known damned well that Wayne was doing something off the books. Especially if he did have a Ripple CV and couldn’t stop himself vandalising your photo.”
“That’s him all over. Charming on top, ruthless underneath.” Karen sighed. “Now I realise how much he must have hated me. But I still can’t understand why he ended up going to such lengths. Surely no one can despise somebody else that much? Well, I know how horrible I am…”
The ringing of Soraya’s phone cut through their outburst of shared laughter.
“Yes, Grant?” Soraya listened carefully. “OK, I’ll tell my client what you’ve just proposed, but I won’t be recommending she accepts. I’ll just put you on hold.”
Soraya touched the screen, muting the call, and turned to Karen and Lennie.
“This’ll amuse you. As you’ll have gathered, I’ve got Grant Collins on the phone. He’s just arrived at BLH’s office, and he’s waiting for Wagstaff to come out of a partners’ meeting and join him and Avery. He’s going to recommend they agree to an immediate offer of the full injunction, an order for assessment of damages in your favour on Craven and the three paralegals, and payment of whatever costs the court awards you. All at a later date, unless you and Wayne can agree the damages and the costs. As he puts it, that would save the need to put the judge out any further, and it would save the costs of tomorrow. But it’s all in return for a confidentiality clause. In plain English, a voluntary gagging order.” Soraya paused to let the absurdity sink in. “Just tell me this, Karen. Is that worth giving up what I fully expect to be the most far reaching public vindication you could ever hope for? I’m not sure the rules even allow this anyway, not so late in the day.”
“Nor am I.” Lennie answered. “And there’s no mention of what he made when he placed Hillier and Russon, the two big ones…”
“Let’s just cut the crap, shall we?” Karen was by now burning with determination. “I want my judgment. Use whatever tact and diplomacy you think fit, Soraya, but make it clear that he can stick his offer where the sun doesn’t shine.”
Soraya smiled back at Karen, unmuted the phone and explained to her opponent that the offer was of no interest to her client. The call did not last much longer.
“Dead men walking. Well, I think we’re done. I’d better go and fine tune my closing submissions.”
“Sorry, one last issue.” Karen explained what she had raised with Lennie earlier. Soraya gave her a conspiratorial smile in return.
“Well, it’s not exactly regular and above board, but in one sense they’re nothing more than a windfall. And you’ve been through far worse than simply being called ‘young lady’ by a witness who knew he was lying on oath. I couldn’t possibly stand in your way.”
* * * * *
Craven closed his door behind him and sank into his chair. In his anxiety to put as much distance as possible between himself and the court buildings, harbouring irrational fears of either Avery or Hutchings coming after him, he had all but marched back to the office and was desperately short of breath. Once he was back on the department floor, he had looked anxiously in the direction of Sheila Driver’s workstation, but she was nowhere to be seen.
Pausing only to drink a bottle of water straight down, he looked at his computer screen and was relieved to see that Jackie had answered his earlier message with ‘OK, call me when you’re back’. He wasted no time.
“Hi, Jackie. I’ve had a really terrible day.”
“Sorry to hear that. Why don’t I come down and see you now? All the partners are in a meeting. No one’s going to tick me off over what they’ll never know about.”
Jackie turned up in Craven’s office two minutes later.
“How was court?”
“Awful. Really awful. That is, I’m sure that I did what I swore to do, but it’s just…well, I think their reasons for having me there were completely false, with everything they’d missed out, and I think I was just being used, and it was all lies…”
“What do you mean?” Jackie realised that Craven was in a state of turmoil. “I thought you were only supposed to be verifying a couple of documents. Just stop there, take a few deep breaths and tell me from the beginning. Remember I’m on your side.”
“Well, it all started to go wrong when they asked me to confirm that my statement was accurate…someone must have altered it after I signed it…no, wait a minute, I think I’d better tell you about what happened this morning first…”
Craven proceeded to tell Jackie how he had been welcomed to the Edgbaston office with a deeply personal insult, only for Shannon to show genuine remorse once she realised that she had unknowingly raked over one of Craven’s innermost secrets, before sharing one of her own.
“Have a look at these. This must be what Squire and the others really think of me. I haven’t any idea what to do.”
Jackie read the partners’ email exchanges in stunned silence.
“So then I find out that someone’s altered my statement, and added something to it behind my back, and when I swore
my oath…” Craven ran through what had then taken place in the courtroom while he was at the witness stand. “I never gave a second thought to that message I sent Wayne Avery just after I’d been offered the job. But if I’d just gone along to court and done what they asked me to do, pretend I couldn’t remember any of the detail, all for the sake of keeping my job here, when it looks as if they were going to get rid of me anyway…”
Suddenly the door flew open to reveal Hutchings. He looked across the room, saw Craven sitting at his desk, and strode in, completely failing to notice Jackie leaning against the filing cabinets alongside the door.
“You’ve really dropped yourself in it now. Aren’t you ashamed of that performance of yours this afternoon? Letting the side down like that. Wayne’s downstairs with Grant right now, waiting for Tony and Rufus to be dragged out of the partners’ meeting. Your ears are really going to be burning. If you’ve still got a job by this time tomorrow…”
Jackie noisily cleared her throat, trying not to laugh at Hutchings’ blatant name dropping. As Hutchings stopped in mid flow and spun round, realising to his horror that he and Craven were not alone, Jackie seized the initiative.
“I don’t think we’ve met before. But I’ve got a pretty good idea who you are. You’ve got two choices. Either you leave this office right now without a further word, or I give you a practical demonstration of how much I’ve learnt so far from my judo classes. You choose.”
Jackie deliberately put her face right next to Hutchings’, almost recoiling from the odour of cigarette smoke. Hutchings could not help but notice her determined stare, and chose to slink out without a further word. Jackie turned back towards Craven.
“Battlefield tip from my husband. If the enemy’s bigger than you are, sometimes the best thing to do is take the fight right to them. They never expect that.”
It was rare for Craven ever to burst out laughing, but then and there it was a wholly natural reaction on his part.
“I’m glad you were here just now. I don’t know if I could have handled that on my own.” Craven’s phone rang. “What should I do?”
“Ignore that, for a start. Go home now, and call in sick tomorrow. You’ve had a real shock today, and you need a day off to get over it. Maybe more than just a day. That’s up to you. But when you do come in, put a written grievance in straight away. And don’t just give it to HR. Send it to the managing partner as well.”
Craven nodded. “Should you be telling me all this? Won’t it harm you?”
Jackie laughed.
“Not when I’ll be on a disciplinary tomorrow for threatening to throw a trainee across your department floor!” She noticed an all too familiar baffled expression in return. “That was a joke. No, seriously, if I am going to be made up to associate, I’m not going to let them dictate who my friends are. And don’t ever forget, Paul, that you’re one of them. Now go home.”
To Craven’s acute embarrassment, Jackie bent down and gave him a hug and a kiss before leaving his office, waving as she closed the door. The phone rang again as he placed the set of emails in his briefcase and made to leave. He decided to let it ring and was soon on his way out of the office in search of an early train home.
Wednesday 19 th June
“In the matter of Rutherford Professional and Legal Recruitment (Birmingham) Limited versus Wayne Avery and Wave Professional Recruitment Limited.”
Lennie leaned towards Karen for a final whispered comment once the clerk finished his announcement. “She’ll launch straight into it. No messing about.”
“OK.” Karen looked to her right. Behind Collins, Avery was present in his usual place. There was no sign of the cocky arrogance on his part that had been evident right up until Craven had taken the stand. It was not at all surprising to Karen and Lennie that Squire was nowhere to be seen, but they were puzzled to notice a stranger sitting where Wagstaff had been.
At the last minute, Tom Ritchie entered the courtroom and discreetly took a place in the middle of the bench behind the two opposing sides. Karen noticed him and flashed a brief smile in his direction before turning back to face Judge Banks as she began to deliver her judgment.
“This claim arises out of a bitter battle between firms of local recruitment consultants over the introduction of candidate clients to law firms. Regrettably, the bona fides and truthfulness of all concerned has been very much at issue throughout the course of these proceedings, and it has necessarily fallen to me to address that in drawing my overall conclusions.
“The First Defendant, Mr Avery, is accused of wrongfully enticing candidate clients away from his former employer, in order to place them with law firms via his new company. For convenience I will refer to the two companies as Ripple and Wave respectively. Mr Avery is also accused of diverting a specific business opportunity while he was still an employee and director of Ripple, namely the chance for Ripple to place Mr Paul Craven with a new employer and thereby to earn a commission. Mr Avery and Wave deny that Ripple have any basis to claim any interest in Mr Craven.
“Ripple asserts that it is entitled to uphold a twelve month restraint clause against Mr Avery. The purpose of that clause was to prevent him enticing Ripple’s candidate clients after he ceased to be a Ripple employee. Ripple proclaims itself to be a small business, seeking protection for no longer than is reasonable. Predictably, Mr Avery and Wave contend that the clause is an unlawful restraint of trade, and is therefore void. They deny breaching the restraint in any event, and they assert that all of the relevant candidates followed Mr Avery to Wave of their own free will. Mr Avery also denies any breach of directors’ duties.
“The issues, at their simplest, are as follows. Is the restraint clause enforceable? If so, did Mr Avery breach its terms? Did Mr Avery act in breach of the duties that he owed Ripple as a director? If he was in breach of either or both, what loss and damage arises?
“I shall initially address the relevant law on the enforceability of restraint clauses and what acts may amount to solicitation and enticement. I shall also cover the guidelines that a judge is expected to follow in circumstances where there is a conflict of evidence and where it is necessary to determine which witnesses are honest and reliable, and which are not.”
The judge proceeded to expound upon a lengthy analysis of legal principles and precedent. Karen had been warned to expect exactly that, but could not help herself beginning to glaze over while the facts of the dispute took second place to the legal dissertation. A friendly nudge from Lennie alerted her to the first key finding.
“In my opinion, the non-solicitation clause relied upon by Ripple is reasonable and thus enforceable. It is well drafted, unambiguous and provides appropriate protection. It does not prevent Mr Avery from earning a living by exercising his personal skills and expertise.”
Lennie wrote a note ‘journey of thousand miles begins with single step’ and showed it to Karen, who nodded and smiled in return.
“I shall now turn to the testimony of the respective witnesses relating to the issues in dispute.
“Miss Rutherford, the remaining director and sole proprietor of Ripple, gave her evidence in an open and direct manner. In the course of her cross-examination, which notably strayed into events from her private life that were only of indirect and marginal relevance to the central issues of this dispute, she gave clear and consistent answers that tied in with all of the key contemporaneous evidence of how Mr Avery came to leave Ripple and how the defection of candidate clients then began. She maintained her dignity while never losing sight of the truth.
“Mrs Vallance, Miss Rutherford’s PA, was similarly open and helpful, again despite being forced to recall private matters of personal embarrassment. As to Miss Gabriel, a Ripple candidate, I did not have the benefit of evaluating her evidence in person, but I have no reason to doubt her recollection of the ancillary issues that she covered.
“On the other hand, Mr Avery in giving his evidence was unhelpful and closed in his manner. He took almost every
opportunity available to him to seek to cast Miss Rutherford in a poor light, despite the fact that this dispute turned primarily upon what he himself may or may not have done after he resigned from Ripple.
“I say ‘almost’ because of one notable omission so far as this trial was concerned. When this matter was first before the court, his statement opposing the initial injunction application cynically accused Miss Rutherford of drawing first blood, by dismissing him without notice. Had that been true, Ripple would have been in breach of contract, and would have lost any legal right to cherry pick the favourable restraint clauses from that contract and enforce them against Mr Avery after the termination of his employment. However, this allegation formed no part of Mr Avery’s defence to this action once he had avoided the grant of any interim injunction against him. By any objective standard, this was breathtaking.
“Mr Avery’s evidence was also at odds with the contemporaneous evidence before the court. Having grudgingly conceded that he supplied a template to Mr Thompson to assist him in communicating his decision to leave Ripple, he was markedly evasive when asked whether he had also provided it to Mr Davenport and Mr Rider. This was despite the obvious common origin of their emails to Miss Rutherford notifying her that they were switching their allegiance. Perhaps unwittingly, Mr Davenport let it be known in the course of his evidence, somewhat late in the day, that Mr Avery had in fact also provided the template to him.
“Over and above this, Mr Avery inexplicably failed to ensure that his personal electronic communications were preserved from what he himself described as ‘seven day auto delete’. He then fought tooth and nail to keep his personal mobile phone records away from scrutiny. As soon as they saw the light of day, he sought to assert that the relevant calls were merely personal in nature, despite their frequency and timing. I emphatically reject this. By any objective standard, it portrayed an unusually close relationship with the three paralegal candidates over the key period surrounding the alleged solicitation.