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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Hydropool Hot Tubs Ltd v Roberjot & Anor [2011] EWHC 121 (Ch) (04 February 2011) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2011/121.html Cite as: [2011] EWHC 121 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
HYDROPOOL HOT TUBS LIMITED |
Claimant |
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- and - |
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JOHN ROBERJOT PARAMOUNT HOT TUBS LIMITED |
Defendants |
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Ulick Staunton (instructed by Callaghans) for the Defendants
Hearing date: 13 January 2011
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Crown Copyright ©
MR. JUSTICE ARNOLD :
Introduction
Background
"Your new number for unbeatable savings on Filters, Chemical and Servicing for your hydropool spa. Call 01403 710888 or visit www.paramounthottubs.co.uk."
"(2) Until the Return Date, or trial or further Order in the meantime:
(1) The First and Second Defendants must not use or disclose any information acquired directly or indirectly by the Defendants in respect of customers of Hydropool Hot Tubs Limited (hereinafter referred to as 'the Claimant') contained in;
(a) the Claimant's database including details of the Claimant's customers ('the Database'); and
(b) the Claimant's list of customers ('the Customer List') whether recorded in some paper or other hard copy document ('hard copy') or held in electronic form ('soft copy')
…
all the said information … being 'the Information'
…
(5) The First Defendant must swear and the Second Defendant must cause to be sworn on its behalf or before 4pm on 21 July 2010 affidavits setting out:
a. Confirmation of any and all of the Information (as defined in paragraph 2(1) above) in the possession or previously in the possession of the First Defendant and/or the second Defendant and further confirmation of:
i. How the Information came to be in the possession of the Defendants or either of them;
ii. What use has been made of the Information by or behalf of the Defendants or either of them;
iii. The date of each and every such use;
iv. Any customers on the Database and/or the Customer List approached by or on behalf of the Defendants or either of them;
….
(3) The solicitors for the Claimant shall at 10am on 21 July 2010 or such other time on that day as shall be mutually agreed between the parties' solicitors be permitted to attend the offices of the solicitors for the Defendants whereupon the solicitors for the Claimant shall be allowed to inspect and take both electronic and hard copies of:
….
(b) a list of the recipients of the 711 sent texts referred to in paragraph 29 of the Affidavit of the First Defendant dated 13 July 2010;
Save that the solicitors for the Claimant undertake that they will not disclose this material to the Claimant without first obtaining either the written consent of the Second Defendant or an Order of the Court permitting such disclosure to the Claimant."
"6. I have also been asked to provide a list of the recipients of the 711 texts ('Text List') which are referred to in paragraph 29 of my affidavit dated 13 July 2010. This has also been provided to my solicitors and I understand sent to the Claimant's solicitors.
7. In relation to the Text List, I can confirm that there are 659 numbers contained in the list. The list is a recreation of the information provided to the company that sent the texts on behalf of the Second Defendant, namely TXT Local. We do not have a hard or soft copy of the details sent to TXT Local. The information was sent to TXT Local by my father, Mr Paul Roberjot, directly uploading the telephone numbers onto its web site. We are trying to obtain from TXT Local any records it has of the information uploaded.
8. I should confirm that I did not upload these numbers onto TXT Local's website. The information was manually uploaded by my father.
9. All of the 659 text numbers in the Text List sent to the Claimant's solicitors were copied from the Hotsprings and Paramount databases. The Hotsprings database is an Excel spreadsheet and the second page contains three columns with various telephone numbers entered. Paul has gone through the three columns and cut and pasted into the Text List all the mobile telephone numbers in those three columns, but not numbers for landlines and then reordered the same in numerical order. The name and other details of the owner of the mobile number can then be seen in the corresponding entry on the first page of the spreadsheet. Some additional numbers (approximately 100 from the 659) were copied from the Paramount database, which has approximately 150 contacts and is solely made of customer's details which have been collated since the Second Defendant started trading in March 2010.
10. However, details of further people were uploaded by my father from spreadsheets that Mr Jack Weller has which was done without my knowledge."
"(5) The First Defendant must swear and the Second Defendant must cause to be sworn on its behalf or before 4pm on 29 July 2010 an affidavit or affidavits:
…
(b) confirming that all the items directed by paragraphs (6), (7) and (8) of this order have been provided to … the solicitors for the Claimant …. in compliance with this order.
…
(7) On or before 4pm on 6 August 2010 the Second Defendant shall provide and the First Defendant shall cause the Second Defendant to provide to the Claimant's solicitors a list in an Excel electronic spreadsheet setting out the names of the recipients of all the 711 text messages mentioned in paragraph 29 John Roberjot's First Affidavit, stating were applicable where any of those named recipients was sent more than one (and if so, how many) such text messages and setting out against each such name the mobile telephone number to which the text message or (if more than one) each text message to that recipient was sent.
(8) On or before 4pm on 6 August 2010 the Second Defendant shall provide and the First Defendant shall cause the Second Defendant to provide to the Claimant's solicitors exact copies of all electronic and (except where the hard copies are only printouts of such electronic files and show no information at all beyond that in the electronic files) hard copy list of customers or prospective customers in the possession of or belonging to the Second Defendant including and separately identify all copies of spreadsheets of Jack Weller mentioned in paragraph 15 of the First Defendant's Second Affidavit."
"2. I confirm that at about 1:30 pm on 6 August 2010 the Defendants' solicitors sent the Claimant's solicitors a list in an Excel electronic spreadsheet setting out the names that I can now identify of the recipients of the text messages mentioned in paragraph 29 of my first affidavit and beside each such name the mobile telephone number to which the text message was sent.
3. As mentioned at paragraph 7 of my second affidavit this list has been recreated as I have been unable to obtain any records from TXT Local."
"16. On 26 July I called TXT Local to ask that it send me the list of numbers to which the 711 text were sent and I spoke to someone who, as I recall, was called Marcus. Marcus told me that TXT local could not provide such details as it had been instructed by someone for the Second Defendant to delete the records of the numbers uploaded by Paul to which the texts were sent.
17. I realised that I would have to create the list of numbers to which the text had been sent, which I understood were the numbers contained on the Hotspring/Watkins database, the Second Defendant's database and those people whose details Jack Weller had. Paul and I had agreed that those were the numbers to which the texts would be sent and I still did not know that, contrary to our agreement, Paul had arranged for texts to be sent to numbers that apparently appear on the Claimant's database.
18. When I created the list from the numbers on the Hotspring/ [sic], the Second Defendant's database and those people whose details Jack Weller had, I realised that there were only 659. I cannot be sure of this, but I believe this is correct. I was alarmed by this. Paul had sent the texts to 711 numbers and I had agreed to a court order to provide the list for 711 numbers.
19. I then did something very foolish and wrong, for which I apologise. I decided to use contact details on my mobile, some personal, some business, to make up the total to 711 telephone numbers, and to insert false names for many of them in the hope that the Claimant would not discover what I had done. "
The alleged contempts
Absence of personal service of the Orders
"(2) Subject to paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless–
(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and
(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.
(3) Subject as aforesaid, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in rule 5(1)(b)(ii) or (iii) unless–
(a) a copy of the order has also been served personally on the officer against whose property permission is sought to issue a writ of sequestration or against whom an order of committal is sought; and
(b) in the case of an order requiring the body corporate to do an act, the copy has been so served before the expiration of the time within which the body was required to do the act.
…
(5) With the copy of an order required to be served under this rule, being an order requiring a person to do an act, there must also be served a copy of any order or agreement under CPR rule 2.11 extending or abridging the time for doing the act and, where the first-mentioned order was made under rule 5(3) or 6 of this Order, a copy of the previous order requiring the act to be done.
(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either–
(a) by being present when the order was made; or
(b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.
(7) The Court may dispense with service of a copy of an order under this rule if it thinks it just to do so."
Alleged breach of paragraph 2(5) of the Order of Kitchin J
Alleged breach of paragraph 3(b) of the Order of Kitchin J
Alleged breach of paragraph (7) of the Order of Floyd J
Alleged breach of paragraph (8) of the Order of Floyd J: the Paramount database
Alleged breach of paragraph (8) of the Order of Floyd J: the Weller spreadsheets
Alleged false affidavits
"(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
(Part 22 makes provision for a statement of truth)
(2) Proceedings under this rule may be brought only–
(a) by the Attorney General; or
(b) with the permission of the court."
Conclusion
i) breach of paragraph (3)(b) of Kitchin J's order by failing to provide a list of recipients of the text message within the time specified;
ii) breach of paragraph (7) of Floyd J's order by knowingly providing a list of recipients of the text message which was partly false;
iii) breach of paragraph (8) of Floyd J's order by failing to provide an exact copy of the Paramount database within the time specified or at any time prior to the hearing; and
iv) swearing a false affidavit, namely John Roberjot's fourth affidavit.
Postscript