by David Cooper
“The evidence of Mr Thompson, Mr Davenport and Mr Rider initially appeared via an umbrella statement in the name of Mr Wagstaff, the solicitor for the Defendants, for the first hearing. The three of them then provided statements of their own for use at trial. They all consistently sought to explain that they found out that Mr Avery had set up on his own, and that they followed him to his new business without prompting.
“In the course of this trial, where I note in passing that Mr Rider absented himself shortly before he was due to be called, it did not take long for their stories to unravel. Their claims to have had no material contact with Mr Avery at all until he had set up as Wave are not borne out by Mr Avery’s phone records.
“Mr Thompson claimed that he coincidentally found out about Wave because he and Mr Avery were ‘drinking mates’. He then fell headlong into the trap set for him by Miss Modaresi when he failed to identify Mr Avery’s favourite drink consistently with the answer that Mr Avery had given to the same question on the previous day.
“The suggestion on Mr Davenport’s part that he found out about Mr Avery’s new business venture online, or as a result of word getting around, is a downright lie. When confronted with the fact that Mr Avery had no personal online presence until eight days after Mr Davenport notified Ripple that he was moving to Wave, Mr Davenport had no answer.
“Their evidence is further tainted by two additional matters. In Mr Thompson’s case, he was asked to explain an entry on Mr Avery’s bank records. The entry evidently comprised a payment of three hundred pounds to him shortly after Mr Avery received commission for introducing him to a new employer. Mr Thompson was quite literally unable to offer any explanation for this payment at all. It may not be unduly cynical to infer that the payment amounted to some kind of bribe, in order to ensure that Mr Thompson would continue to support Mr Avery throughout the course of this dispute.
“Over and above this, I gave a specific direction at the end of the first day of this trial, namely that the three individuals were to be called into court consecutively to give their evidence, in order to diminish any risk of collusion. It was drawn to my immediate attention at the outset of yesterday’s proceedings that the three of them had participated in a pre-hearing conference together with Mr Avery and his legal team. This was an act of open defiance of my order, compounded on Mr Thompson’s part by his vulgar abuse of Miss Modaresi when she sought to object to what was taking place, and his further outright lie about that incident under cross-examination.
“In summary, their evidence taken together with that of Mr Avery upon the relevant matters is deeply unsatisfactory. It is collusive, highly improbable and completely at odds with the contemporaneous documentary evidence that the defendants were compelled to disclose during the course of these proceedings. I emphatically reject their evidence in its entirety.
“While I am mindful that I have said nothing so far about Mr Craven’s evidence, or indeed Mr Squire’s, I shall make some initial findings of fact.”
Judge Banks paused for a drink of water. Lennie whispered ‘looking good’ in Karen’s ear and received a nod and a grin in return. In front of them, Soraya was carefully assessing what she would need to address in her immediate response to the judgment once it was concluded. They all knew that there was no need to take a laborious note of what they were hearing. A printed copy of the judgment would literally be handed down as soon as it had been delivered in full.
“I find that on the fourteenth of March, Miss Rutherford informed Mr Avery that he might be facing redundancy. She did so with genuine reasons and indeed with genuine regret. This was not a fait accompli. She had made no final decision. It was an initial step in a consultation process, to give Mr Avery an opportunity to raise any relevant issue that might influence her final decision.
“Mr Avery reacted to this by deciding to jump before he was pushed, and to set up on his own in competition with Ripple. Conveniently, he already had a dormant company in the wings for this purpose, and in due course he changed its name to Wave Professional Recruitment Limited, albeit in such haste that he initially overlooked an unfortunate clerical error when renaming the company.
“Having made this decision, Mr Avery then set about enticing Mr Thompson, Mr Davenport and Mr Rider away from Ripple. The telephone traffic from the fourteenth onwards lends itself to no other reasonable explanation. Over the weekend before he resigned from Ripple, Mr Avery also sought to destabilise Mrs Vallance via a series of text messages, first by looking to entice her away from her employment with Ripple and then, having been rebuffed, by leaving a threatening marker in the hope that she would keep the contents of that correspondence to herself.
“On the eighteenth, Mr Avery resigned from his employment with Ripple voluntarily and of his own free will, and he also resigned as a director of Ripple. He then set about the task of soliciting the three paralegal candidates away from Ripple. Their solicitation was wrongful and in breach of contract. In due course he ignored the formal legal requests on behalf of Miss Rutherford and Ripple to cease and desist, and proceedings were issued.
“The evidence that was submitted to this court on behalf of Mr Avery and Wave, for the purpose of opposing the application made at the first hearing on the eleventh of April, was accepted by Judge Chandler as sufficient to defeat Ripple’s arguments that the balance of convenience favoured the grant of an interim injunction. There was, of course, no oral evidence and no cross-examination on that occasion. To the extent that this evidence was still relied upon in the course of this trial, rather than cynically abandoned once it had served its short term purpose, it has not stood the test of time. Even allowing for the fact that written evidence for interim relief applications is frequently collated in great haste, without the same eye for detail that precedes evidence collated for a full trial, I find that the defendants knowingly misled the court on that occasion.
“Following that hearing, three further candidates left Ripple for Wave. Those candidates were Miss Russon, Mr Hillier and Mr Nicholas. It is to Miss Rutherford’s credit that she managed to stem the tide by circulating a mailshot to her client base, comprising the law firms as well as the candidates. She described this as a defensive marketing exercise. I particularly note her assertion ‘this craven conflict is not of my making’. I reject the suggestion that this might have been any kind of tacit or accidental invitation for her clients to go out and find Mr Avery if they chose to do so.
“I can draw no other conclusion save that those three further candidates were wrongfully solicited away from Ripple. The pattern of behaviour on Mr Avery’s part is unmistakable. I have been given no reason to accept that Miss Russon, Mr Hillier or Mr Nicholas would have voluntarily abandoned Ripple for Wave if they had not been so enticed.
“I also find, for completeness, that in acting as he did before he resigned as a director of Ripple on the eighteenth of March, Mr Avery was in breach of the statutory duties that he owed to Ripple as a director. I need not expand upon this.”
Lennie realised straight away that Karen had effectively crossed an important threshold. Her likely damages award was not now going to be limited to whatever profits she might have made, or Avery actually made, from placing the three paralegals alone. Any hopes that Avery and Wave might have had for protection against an adverse costs award, by reference to the sums that they had offered in settlement before the trial, were virtually dead in the water. The offers had clearly fallen a long way short. But Lennie decided not to count too many chickens ahead of the judge’s decision upon the remaining issues, and chose to bide his time rather than share his thoughts with Karen then and there. He glanced across the courtroom and saw a look of thunder on Avery’s face.
“Having made those initial findings, I shall turn to Ripple’s claim in relation to Mr Craven. As I have already said, this has been argued in the alternative. Ripple contends in any event that Mr Avery wrongfully enticed Mr Craven away, just as he did with the others. In the alternative, in the event of a
finding that Mr Craven was in fact introduced and placed prior to Mr Avery’s resignation as its employee and director, rather than subsequently to this, Ripple contends that Mr Craven’s placement comprised the wrongful diversion of a live business opportunity.
“In response, Mr Avery and Wave assert that Mr Craven was never a candidate client of Ripple, not even a potential client. They say he merely contacted Mr Avery many weeks earlier without ever going onto Ripple’s books, and that he coincidentally got back in touch with Mr Avery once more just after Wave had started up. It has also been argued that Mr Craven was a niche candidate in search of a niche vacancy, and that Ripple would have stood no chance whatsoever of introducing him to the relevant vacancy at Bastable & Co, now BLH Solicitors.
“Ripple’s claim in relation to Mr Craven was not before this court at the first hearing. The grounds for including it only came to Ripple’s attention afterwards. Mr Avery and Wave initially responded with a bare denial of liability. The mast to which they eventually nailed their colours was that Bastable & Co interviewed Mr Craven on the twenty first of March, following his introduction under the auspices of Wave two days earlier. Mr Avery obtained initial corroboration for this account of events from Mr Rufus Squire, a partner in the solicitors’ firm then known as Bastable & Co. Very late in the day, he also obtained corroboration from Mr Craven himself. The copy of Mr Craven’s signed statement served in the course of these proceedings confirmed the interview date to be the twenty first, and otherwise simply sought to verify two documents. Those documents were his offer letter, and the start confirmation that triggered Wave’s entitlement to commission for the introduction.
“It is worthy of note that neither Mr Avery nor Mr Squire expressly confirmed the interview date in their statements. For its own part, Ripple was dissatisfied with what Mr Avery’s solicitors claimed this date to be. Ripple sought to keep the issue alive by reference to what it believed it could infer from items of ancillary evidence. The late service of Mr Craven’s statement was clearly expected on Mr Avery’s behalf to kill the issue stone dead, and I note in passing that Mr Collins described it as a ‘knockout blow’ in the first version of his skeleton argument submitted ahead of this trial.
“Against that background, there was a dramatic development yesterday when Mr Craven gave evidence. He initially drew the court’s attention to an anomaly in the purported copy of his statement that appeared in the trial bundle. It was a highly significant anomaly, because it related to the date of his interview at Bastable & Co. As I have already mentioned, that copy of the statement expressly recorded the interview date as the twenty first of March.
“Mr Craven said that there was no reference to the actual date in the version of the statement he signed. If that date had been factually correct, it is likely that Mr Craven’s reaction to seeing it there would have been markedly less pronounced. He then found himself genuinely unable to recall the date from memory alone when asked if he could do so.
“Mr Craven then very bravely admitted, when it was plain to all concerned that he was in some discomfort after he had taken the oath, that he was afflicted by the mental disability Asperger’s Syndrome. He went on to confirm that he was still ready and willing to undergo cross-examination. At the time, I observed that individuals for whom that unfortunate condition is a fact of life do not normally possess the ability to sustain a false story. Mr Craven, in my judgment, illustrated this perfectly, and it is to his credit that this was the case.
“In the course of cross-examination, which Miss Modaresi conducted in a notably discreet and courteous manner, Mr Craven was prompted to recall anything relevant about his interview. He mentioned three matters that were of particular note. The first, which I will leave on one side for now, was the identity of his interviewers. The second related to the version of his CV that his interviewers were using. He said that this included a photograph at the foot of the second page, and that the photograph bore certain markings in red ink. When he was shown the standard form version of the Ripple CV template, he confirmed the photograph to be that of Miss Rutherford. Finally, having noted that the bundle copies of an exchange of text messages between him and Mr Avery did not include the message with which that exchange began, he produced the missing message on his phone screen. This message included a comment that Bastable & Co had offered him the job twenty minutes earlier.
“Significantly, the date of the missing message was shown on the phone screen to be the fourteenth of March. To leave the issue beyond doubt, having asked Mr Craven to confirm his mobile phone number, Miss Modaresi was in a position to tie this in with Mr Avery’s phone records. They are consistent with this message having been sent on that date. It is of course a date that precedes, rather than follows, Mr Avery’s resignation as a director and employee of Ripple.
“Accordingly, I find that by introducing Mr Craven to Bastable & Co as described, Mr Avery wrongfully diverted a live business opportunity that belonged to Ripple, and thereby also breached the statutory duties that he owed to Ripple as a director.”
Soraya turned round and whispered ‘well done’ to Karen, who was by now beaming with delight. Lennie tried in vain to pick up on any reaction from the other side of the courtroom, noticing little more than a set of bowed heads.
“One consequence of this finding that I cannot avoid addressing, although it does not in its own right affect my judgment as to the extent of the further liabilities that Mr Avery and Wave will now face, is where this leaves Mr Squire.
“As he confirmed in his statement, Mr Squire is a partner of many years’ standing in Bastable & Co, now part of BLH Solicitors. He continues to serve as a West Midlands Professionals’ committee member, and is well known throughout the city via his numerous outside activities and interests. On the face of it, he is every inch the upright professional man.
“However, even before the unexpected twist in the course of Mr Craven’s evidence, my impression of Mr Squire here in this courtroom was somewhat different from his public image. At best, his evidence was clever, measured and rehearsed. At worst it was cunning, devious and arrogant. On occasions there were clear signs of question spotting on his part. Above all, he chose in his statement only to hint tantalisingly at the historical personal issues between him and Miss Rutherford, leaving the fine detail to emerge for the first time in hurtful fashion via her cross-examination. When Mr Squire was asked for his own recollections, the manner in which he gave his evidence showed what can only be described as deep rooted resentment and prejudice against Miss Rutherford. This did of course suit his stated position, namely that Ripple would have stood no chance of placing a candidate with his firm.”
Karen instinctively wrote down each of the adjectives that the judge had used to describe Squire’s evidence, underlined them twice and passed the sheet of paper behind her to Ritchie, who accepted it gratefully.
“So what am I to make of the fact that Mr Craven was interviewed at Bastable & Co and immediately offered a job on the fourteenth of March, four days before Mr Avery resigned from Ripple? I have already determined that Mr Avery thereby wrongfully diverted a live business opportunity belonging to Ripple. At the very least, this incident shows an astonishing lapse of memory on Mr Squire’s part. But it may in fact have involved outright conspiracy and collusion with Mr Avery. In the circumstances, I am not minded to shy away from analysing the evidence further.
“The date of Mr Craven’s interview was the same date as Mr Avery’s initial redundancy consultation. I have already made it clear that I do not accept Mr Avery’s claim that Mr Craven only renewed contact with him after he had set up on his own and after he had obtained the brief from Bastable & Co to find them a candidate. I must necessarily conclude in turn that the brief preceded Mr Avery’s redundancy consultation, and indeed his subsequent resignation from Ripple.
“It is of course possible that Mr Avery consciously misled Mr Squire into believing that he had already set up on his own earlier than he actually did. This w
ould of course have overcome Mr Squire’s intention never to deal with Ripple again. My immediate difficulty here is that once Mr Avery realised in the course of this action that he had no option other than to climb off the fence and identify the date of Mr Craven’s interview, he then focused consistently on a knowingly incorrect date, namely the twenty first of March.
“This is compounded by the remarkable fact that BLH Solicitors, the successor firm to Bastable & Co, have represented Mr Avery and Wave throughout the course of this action. On each occasion when Ripple’s solicitors protested about the risk of partisan factors obstructing the proper course of justice, they were rebuffed with talk of Chinese walls. BLH Solicitors proclaimed that the handling of the action from their Edgbaston office, via the former Lewis Hackett division of the merged firm, was an effective safeguard against anything of the kind.
“This proclamation was, however, proved to have been very hollow indeed in the course of Mr Craven’s cross-examination. Mr Craven informed the court that Mr Wagstaff, the partner in the former Lewis Hackett division who was in charge of Mr Avery’s defence of this claim at all material times and who briefed Mr Collins for this trial, was in fact present at his interview along with Mr Squire. It leaves me quite unable to concede any benefit of the doubt over the date of that interview so far as Mr Squire is concerned.
“I can only conclude that Mr Avery knowingly colluded with Mr Squire and Mr Wagstaff to tell a false story. It may be reasonable to infer that having decided together to keep Mr Craven’s introduction off the books, as if it was some kind of black operation, they all then cynically concluded that Miss Rutherford would not ultimately wish to risk having her private life raked over by keeping this issue open for determination at trial.
“As I have indicated, this will have no primary effect upon my findings that Mr Avery and Wave are liable to Ripple as described. It may be of wider interest elsewhere, to professional and disciplinary bodies. But I am mindful of its possible effect on what order I should make in relation to the costs of the initial hearing, which was a matter reserved to me for determination, and indeed all subsequent costs. Were it not for the fact that Mr Avery consciously tendered untruthful evidence to the court on that occasion, evidence that dutiful legal representation would have stopped in its tracks, the whole dispute might have been resolved by suitable undertakings on that occasion. Miss Rutherford would then have been spared the last two months’ worth of remorseless commercial and personal pressure. The notional comfort that the defendants have had from their costs being covered by legal expenses insurance is a factor that I am also duty bound to mention, in circumstances where I have concluded that much of their evidence has been knowingly false and that the action has been needlessly prolonged as a result.