Employment Cases Update

Praxis Capital Ltd v Burgess [2018] EWHC 1435 (Ch)

Date published: 12/07/2018

Application in relation to an order that had been made in 2015 ordering the employee to deliver up all documentation relating to the employer. Application dismissed.

Back in 2015, the Claimant, Praxis, applied for the Defendant, Mr Burgess, to deliver up to Praxis' solicitors all documentation relating to Praxis. Mr Burgess made a witness statement confirming that he had complied with the order. However, Praxis instructed a forensic linguist (without asking for the court's permission) who concluded that Mr Burgess must have retained the Claimant's brochure and roadshow presentation, and had later made use of them because there were clear similarities in the content of websites of two companies operating within the same market as the Praxis. Praxis claimed that Mr Burgess had misled the Court in these proceedings, and that his position - that he has not, and did not, intend to use confidential information of Praxis - was not true. It was also said that Mr Burgess falsely stated that he had complied with the order, requiring him to deliver up all the Claimant's material, and that he was in breach of that order. Praxis applied for further relief in relation to documentation, and applied for its costs that were paid to the Defendant to be paid back.

The application was dismissed. The Claimant had sought, neither to appeal out of time to the Court of Appeal from the 2015 decision, or to bring a separate claim in fraud seeking to have the original judgment set aside. In those circumstances, the present application was misconceived.

Employment Claims without a Lawyer 2nd edition published March 2018

Neutral citation number: [2018] EWHC 1435 (Ch)

Case No: B30MA265

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN MANCHESTER

BUSINESS LIST (Ch D)

Manchester Civil Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ

Date: 5th February 2018

BEFORE:

HIS HONOUR JUDGE HODGE QC sitting as a Judge of the High Court

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BETWEEN:

PRAXIS CAPITAL LIMITED (CLAIMANT)

 - and -

JACK BURGESS (DEFENDANT)

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Legal Representation

Mr Tom Alkin (of counsel) on behalf of the Claimant

Mr Daniel Tatton-Brown (of counsel) on behalf of the Defendant

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Judgment Approved

Reporting Restrictions Applied: No

"If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person".

His Honour Judge Hodge QC:

1. This is my extemporary judgment on an application by the Claimant in proceedings between Praxis Capital Limited (as claimant) and Mr Jack Burgess (as defendant) under Claim Number B30MA265. The present application is a somewhat belated sequel to proceedings which I thought that I had finally determined between the parties in May and June of 2015. On 26th February 2015 the Claimant issued its claim form in the Manchester District Registry of the Chancery Division against Mr Burgess seeking injunctive relief relating to the Defendant's alleged breach, and anticipated breach, of a contract of employment and his duties of trust and confidence in relation to confidential information and post-termination restrictions. The claim also sought an inquiry, damages and interest.

2. The prayer for relief in the Particulars of Claim sought: (1) an inquiry as to any confidential information belonging to the Claimant taken by the Defendant from the Claimant and/or retained by the Defendant after the termination of the employment contract; (2) various heads of injunctive relief, including injunctions restraining the Defendant from communicating the confidential information or exploiting or making any further use of it; (3) delivery up of the confidential information and any documents, records, or media containing any such information or any part thereof; (4) an injunction restraining the Defendant from contacting or dealing with, or attempting to contact or deal with, any officer, employee, consultant, client, consumer, supplier, agent, distributor, shareholder, advisor, or other business contact of the Claimant; and (5) an anti-solicitation injunction and an injunction restraining the Defendant, until 14th October 2015, from being involved in any capacity with any business concern which was, or intended to be, in competition with any restricted business, or from being involved in the provision of goods or services to, or otherwise having business dealings with, any restricted client in the course of any business concern which was in competition with any restricted business.

3. In the course of those proceedings there were various applications by the Claimant for the grant of interim relief against the Defendant. One of those applications resulted in an order of His Honour Judge Pelling QC, sitting as a Judge of the High Court, on the 1st April requiring the Defendant, by a certain date, to deliver up to the Claimant's solicitors all the Praxis Capital Material (as defined), which included all property documents and material relating to the Claimant and any associated company and/or taken or copied by the Defendant, such material not being limited to confidential information and documents of a confidential nature. In the course of the proceedings, Mr Burgess made a witness statement confirming that he had complied with that order.

4. The matter came on for trial before me at an expedited trial on the 12th, 13th and 14th May 2015, and there was a subsequent costs hearing on the 21st May 2015 following which my formal judgment was embodied in a Court Order sealed on the 2nd June 2015. Paragraph 1 of that order provided that the claim was dismissed and the various heads of relief sought by the Claimant were refused. There was an order for the Claimant to pay the Defendant's costs of and occasioned by the claim, with an interim payment on account of costs of £110,000. I refused permission to appeal, although I extended the time for seeking permission to appeal from the Court of Appeal to 11th June 2015. So far as I am aware, there has been no attempt to appeal my order.

5. By an Application Notice dated 18th January 2018, and issued on 22nd January 2018, the Claimant now seeks further relief. As reformulated, the Claimant seeks an order, first, that the Defendant must, by 4pm on a date to be specified, deliver up to the Claimant any and all physical documents, physical property, and all physical materials in his possession, power, custody or control that were obtained by the Defendant during the term of his employment with the Claimant, and copies of which were used during that time by the Claimant for the purpose of promoting its business to third parties, or developing its business internally, but excluding any physical materials that relate exclusively to the Defendant's employment by the Claimant. A similar order is sought in relation to copies of any electronic documents or materials in the Defendant's possession, power, custody or control. An order is sought that the Defendant should delete any copies of such electronic documents or materials, and that until such time as all the materials have been delivered up to the Claimant or deleted, that the Defendant must not publish or distribute to any third parties the contents thereof. An order is sought requiring the service of an affidavit on the Claimant's solicitors from the Defendant setting out, to the best of his knowledge and belief, the history of his dealings with the Praxis Materials, to include any disclosure to third parties, and any use thereof by the Defendant for the preparation of other documents or materials, and also how and why the Praxis Materials came to be excluded from the effect of the Interim Order.

6. Paragraph 4 of my order, that is to say the order for an interim payment on account, is to be varied so that there is to be no order as to costs and accordingly the Defendant is to repay to the Claimant the sum of £213,500, which would appear to be the amount paid pursuant to my original Costs Order in favour of the Defendant. I am also asked to order that the Claimant has permission to apply for directions for an inquiry as to damages for misuse of confidential information, and that certain documents should be kept confidential, notwithstanding that they have either been read by the Court or referred to in open Court. Finally, I am asked to order the Defendant to pay the Claimant's costs of the application, to be summarily assessed, by 4pm on a date to be specified.

7. The Application Notice is said to be supported by Witness Statements from Mr Gary Roberts, the Managing Director of the Claimant, dated 17th January 2018, and Mr David Michael McCann, dated 18th January 2018. Mr McCann is a solicitor and the senior partner in the Claimant's firm of solicitors, Woodcocks Haworth & Nuttall of Bury. Reference is also made in the Application Notice to an expert report of Dr John Olsson dated the 5th January 2018. He is a forensic linguist. It is to be noted that no permission has been given for the Claimant to rely upon that expert report notwithstanding the provisions of CPR 35.4(1) whereby:

"No party may call an expert or put in evidence an expert's report without the court's permission."

8. Mr Roberts, in his Witness Statement, explains that early in 2017 he became aware of two companies operating within the same market as the Claimant company. They are called Vengrove Capital and Melburg Capital. He has reviewed the websites of those companies and has concluded that some of their content is derived from documentation which he, Mr Roberts, had prepared. Those were documents created by him in his capacity as a director of the Claimant during the summer and autumn of 2014, and which, he estimates, it took him over 50 hours to produce, over a 3 to 4 months period. They are essentially a corporate brochure and roadshow presentation which are said to have proved to be very effective marketing tools, and which are said to be confidential to the Claimant's actual and prospective customers.

9. It is said that, Mr Burgess was involved in the preparation of the Melburg and Vengrove documents, and that he has prepared them from using the material in the Praxis roadshow presentation and brochure. At paragraph 24 of his Witness Statement, Mr Roberts says that he is:

"… satisfied in my own mind that Mr Burgess must have had access to proprietary documentation owned by Praxis of a confidential nature from during his time as an employee."

Mr Roberts refers to, and relies upon, the expert conclusions of Dr Olsson, and asserts that the apparent explanation given by Mr Burgess as to the use of the wording on the Melburg and Vengrove websites is not plausible. Mr Roberts says that it is clear to him that Mr Burgess has misled the Court in these proceedings, and that his position - that he has not, and did not, intend to use confidential information of Praxis - was not true. It is also said that Mr Burgess falsely stated that he had complied with Judge Pelling's order, requiring him to deliver up all the Claimant's material, and that he was in breach of that order.

10. In his Witness Statement, having related the background to the present application, Mr McCann refers to what the Claimant perceives as a misuse by Mr Burgess of Praxis Capital Material in the form of the Praxis corporate brochure and roadshow presentation. Mr McCann refers to the expert opinion evidence of Dr Olsson to the effect that Mr Burgess had in his possession Praxis Capital Material when he created, or assisted in the creation of, the Melburg and Vengrove websites. He says that:

"It would appear that such material must have been retained by Mr Burgess when he left his employment with Praxis."

It is said that no other explanation has been put forward by Mr Burgess; instead he simply denies using the Praxis Capital Material in preparing, or assisting in the preparation of, the websites, but that denial is said, according to Dr Olsson, to be wholly implausible.

11. Mr McCann submits that the Court should, therefore, be driven to the conclusion that Mr Burgess has: (1) misled the Court in his defence, (2) breached Judge Pelling's order of 1st April in failing to deliver up Praxis Capital Material in his possession, and (3) misled the Court in asserting in his evidence compliance with the order of 1st April when he was, in fact, in possession of Praxis Capital Material. At paragraphs 33 to 36, Mr McCann addresses the consequences of that. He says that:

"The Claimant asserts that the injunctive relief sought in the proceedings against Mr Burgess should be reconsidered in the light of the apparent retention and use by Mr Burgess of Praxis Capital material."

He submits that the Court should reconsider the issue on the basis of the new evidence that has now come to light. If that is done, he says that:

"… the representations that were made on behalf of Mr Burgess, and which were accepted by [me], ought properly to be rejected. In those circumstances, [the Claimant] would once again be in a position of not knowing the nature and extent of Mr Burgess's retention and use of Praxis Capital Materials, and it would be necessary and appropriate for injunctions to be granted for delivery up of such material and disclosure of any use that has been made of it."

12. Another way to assess the response to the application, it is said, is to consider how I, as trial Judge, would have dealt with the trial if this further material had been before me. The Claimant's view is that if I had been aware that Mr Burgess would, in fact, unless restrained, use Praxis Capital Material in the way that he now has, it is inconceivable that the order I ultimately made on 21st May would have been made in that form. Further, on the information now available, the Court's position on costs - that Mr Burgess should receive his costs from the Claimant - would not have been made. It is said that ultimately the sum paid by the Claimant to Mr Burgess in relation to the costs of the proceedings amounted to £213,500. At paragraph 36, it is said that:

"Mr Burgess has denied the Claimant's assertions about retention and use of the Praxis brochure and roadshow presentation. He did so without having seen Dr Olsson's report, and it is to be hoped that when he does s, he will appreciate the gravity of his position and decide to respond to the application with admissions and co-operation. If he maintains his denial, then Praxis's primary position is that this matter can be decided on the papers on the basis that Mr Burgess's position has no real prospect of success. Alternatively, directions may have to be given for a short trial in respect of the further complaints."

13. In summary, the substance of Dr Olsson's report is: (1) That having reviewed material on the Vengrove and Melburg websites created by Mr Burgess, Dr Olsson has identified more than ten examples of identical and closely similar wording. He stresses that these are not merely instances of identical and closely similar wording; these expressions are not found in any language corpus, and nor are they found elsewhere on the internet. (2) It is very improbable that the instanced expressions on the two, and related, websites were derived from any source other than the corporate brochure and roadshow presentation. Indeed, Dr Olsson considers that the only credible explanation for the quantity of identical, rare, possibly unique data found in this investigation to be present in all these materials, is that the Vengrove and Melburg websites were directly derived from the Claimant's sources. (3) Dr Olsson says that he has also identified several instances of altered or amended copying, and has related examples where the copying has included, or resulted in minor lacunae. In his opinion, based on his experience in analysing plagiarism in the educational sector and his published researches into plagiarism, Dr Olsson considers that the most credible explanation for these alterations, although apparently minor in form, was that they were carried out with the express purpose of reducing the appearance of similarity with expressions found in the Claimant's documentation.

14. The Defendant, Mr Burgess, has put in a Witness Statement dated the 2nd February 2018. He points out that he was only served with an incomplete set of application papers by DX on the 24th January, and it was not until the 31st January that the Claimant's solicitors agreed to provide all of the supporting documents. Mr Burgess's primary position is that the application is technically flawed and should, for that reason alone, be dismissed by the Court. He therefore considers it would be disproportionate for him to comment on each and every point in the various Witness Statements and exhibits served by the Claimant in support of its application. He therefore addresses only certain matters which he considers to be of particular relevance.

15. He goes through the background to his employment with the Claimant and the subsequent litigation when he left the Claimant's employment. At paragraph 11 he urges the Court to see this application for what he believes it to be: part of a continuing attempt by the Claimant's controller, Mr Harrison, to punish Mr Burgess for daring to stand up to him and for doing so successfully. At the end of his Witness Statement, he says that he hopes that the Court will see the application for what he believes it to be: the latest step by Mr Harrison, using his corporate alter-ego, to try to intimidate and impoverish someone who has simply defended himself robustly and successfully against what Mr Burgess describes as the false, contrived and vexatious allegations which have been made against him in the past.

16. Not having heard any witness, and not having heard from Mr Harrison, it is not possible for me to make any findings in relation to those assertions by Mr Burgess. I simply say that, based upon my findings at trial, I cannot simply dismiss those assertions out of hand; but I emphasize that I make no finding in relation to them. Addressing the substance of the allegations, Mr Burgess begins paragraph 14 by stating that:

"… other than as provided by the Claimant as part of this application, I do not have the Documents and did not use them when working to prepare the contents of either the Melburg or Vengrove websites, as the Claimant alleges."

At subparagraph 14a, he refers to the allegation that he must have copied the documents, and the Claimant's assertion that this must be taken to mean that he knowingly retained the documents at the time of the 2015 trial. As to this, Mr Burgess says, that whilst he is not familiar with forensic linguistics, and cannot comment on Dr Olsson's credentials or methodology, Mr Burgess can say with certainty that something has gone wrong with his analysis as the conclusions that he seeks to draw are simply incorrect.

17. For the Claimant, it is said that even now there is no express refutation by Mr Burgess of the Claimant's assertion that he had retained the relevant documents, namely the Praxis Corporate brochure and the roadshow presentation, when he left the Claimant's employment in February 2015, and that they were not handed over, as required by Judge Pelling's order of the 1st April of that year. For the Defendant, Mr Tatton-Brown asserts that it is implicit in what is said at paragraph 14 and 14a that Mr Burgess did not retain the documents. At paragraph 14d, Mr Burgess confirms that he was not familiar with the final version of the corporate brochure before it was provided to his solicitors by the Claimant's solicitors last week, although he can recall there being earlier versions of the document. It is accepted by the Claimant that Mr Burgess's latest Witness Statement gives rise to a number of issues of fact: these include the extent to which Mr Burgess was involved in the preparation of the roadshow presentation and corporate brochure; whether those documents were handed out to anyone who showed a passing interest in the Claimant's business and were not supplied with any expectation that the recipient would be forbidden from sharing them with others, whatever small print they might contain about confidentiality; and whether Mr Burgess was ever involved in business development and capital raising activities and attended meetings with investors in that connection.

18. The Claimant is represented on this application by Mr Tom Alkin (of counsel) and the Defendant by Mr Daniel Tatton-Brown QC who, unlike Mr Alkin, appeared at the trial of this claim in 2015. Both have produced written skeleton arguments. It is fair to say that Mr Alkin's was produced prior to the receipt of Mr Burgess's Witness Statement. Having seen and considered that Witness Statement, Mr Alkin accepts that there are issues of fact which the Court will need to resolve before this application can be determined on its merits. He therefore asks the Court to make certain directions with a view to a hearing on oral evidence. If and insofar as it is necessary for a further claim to be issued, Mr Alkin invites the Court to accept an undertaking from the Claimant to issue such further claim, and to give case management directions with a view to its early trial. Mr Alkin submits that the Court can proceed without the need for any further Part 7 claim, in reliance upon the provisions of CPR3.1(7), which provides that:

"A power of the court under the [Civil Procedure] Rules to make an order includes a power to vary or revoke the order."

19. In reliance upon the decision of the Court of Appeal in the case of Tibbles v SIG Plc [2012] EWCA Civ 518, and reported at [2012] 1 WLR 2591, Mr Alkin invites the Court to give the procedural directions which he put before the court to lead to an oral hearing of the present application. Mr Alkin relies, in particular, on a decision of Mr Bernard Livesey QC, sitting as a Deputy High Court Judge, in the case of Latimer Management Consultants Ltd and others v Ellingham Investments Ltd [2006] EWHC 3662 (Ch) and reported at [2007] 1 WLR 2569 in support of his submission that the Court can proceed in this way without the need for a fresh Part 7 claim form under the provisions of CPR3.1(7). Insofar as maybe necessary, Mr Alkin invites the Court not to follow the decision and observations of Mr Murray Rosen QC, sitting as a Deputy High Court Judge in the case of Clutterbuck & Anor v A [2017] EWHC 1127 (Ch) at paragraphs 48 and following.

20. Although his argument was more fully developed in his written skeleton, Mr Alkin's submissions, in summary, were that if the Court were to find that Mr Burgess had retained the Claimant's brochure and roadshow presentation, and had later made use of them, then the whole basis for the Court's decision at the trial in May 2015 would have been misconceived. Mr Alkin took me through certain factual conclusions drawn by Dr Olsson in his report in support of there being a prima facie case that Mr Burgess must have made use of the Claimant's brochure and roadshow presentation for the purposes of producing the material on the other two company websites. He submitted that it was simply inconceivable that precise word strings should have come to Mr Burgess's mind some two years later. He pointed out that whilst an ex-employee cannot be restrained from using confidential information which does not constitute a trade secret which he carries in his own head, he cannot rely on such confidential information which he derives from his former employer's written documentation, and which he has not carried in his own head.

21. In support of that proposition, he relied upon observations of Mr Justice Arnold in the case of Force India Formula One Team Ltd v 1 Malaysia Racing Team Sdn Bhd [2012] EWHC 616 (Ch) at paragraph 226 (4) of the report at [2012] RPC 29. Mr Alkin submitted that the factual conclusions, as distinct from the expert opinion evidence, of Dr Olsson were given further support by Mr Burgess's solicitor's refusal to answer the simple question, repeatedly posed in correspondence from the Claimant's solicitors, whether Mr Burgess had retained the Claimant's brochure and roadshow presentation. All answers, insofar as any were provided at all, were couched in terms of the present tense, and Mr Burgess no longer having those documents, and having made no use of them, rather than answering the question whether had he retained them originally. Mr Alkin invited the Court to infer that Mr Burgess's reluctance to answer that straight question was because he could not answer it without revealing that he had retained the documents and had, therefore, not correctly responded to Judge Pelling's order of the 1st April, and had falsely confirmed his compliance therewith. Mr Alkin submitted that, for those reasons, there were proper grounds for considering that all was not as had been represented by Mr Burgess and his legal representative at trial; and that must clearly be relevant to the Court's order for costs.

22. In his skeleton argument, Mr Tatton-Brown QC had advanced arguments for saying why this application was misconceived. He submitted that there had been clear inadequacies in the Claimant's application which were now apparent. It relied upon inadmissible expert evidence, and it sought to challenge findings of fact, without seeking to have the judgment in which those findings were made set aside. Mr Tatton-Brown submitted that Mr Burgess's recent Witness Statement did not suddenly invalidate the basis of the application; the application had been flawed from the start. He submitted that, both as a matter of jurisdiction, and as a matter of the exercise of the Court's discretion, the alleged evidence relied on by the Claimant was not sufficiently compelling to justify any variation to, or departure from, this Court's final Order.

23. He referred to, and relied upon, the decision of the Court of Appeal in Noble v Owens [2010] EWCA Civ 224 and reported at [2010] 1 WLR 2491 in support of the proposition that my judgment could not be set aside without a fresh trial for that purpose. He distinguished the actual order in Noble v Owens, where the issue of fraud had been remitted for trial by a High Court Judge, on the basis that that was a remedy granted on appeal from the original judge's order by the Court of Appeal. In this case, the only conceivable jurisdiction to set aside my order would be that conferred by CPR3.1(7). That was an exceptional jurisdiction to be exercised only in exceptional cases, and the discretion should not be exercised in the present case, even if it was available in the case of a final Order, where fresh evidence was essentially inadmissible. As for the proposal that I should accept an undertaking by the Claimant to issue a fresh Part 7 claim, Mr Tatton-Brown pointed out that this was not a case of extreme urgency; the discovery of the apparent similarity of website content had, on Mr Robert's evidence, been made early in 2017, and there had been ongoing correspondence about it since the middle of that year. It was not appropriate in those circumstances to give directions in respect of a claim which had not yet even been issued. It was unrealistic for Mr Alkin to suggest that Mr Burgess's Witness Statement had clarified matters of disputed fact, or rendered a valid application in any way invalid. Mr Burgess's evidence had had nothing to do with the inadmissibility of Dr Olsson's expert opinion evidence. There should have been no misunderstanding about Mr Burgess's position; in a letter from the Claimant's solicitor's, dated the 26th July 2017, they had said that their understanding of Mr Burgess's position was that following the termination of his employment with the Claimant, he had not retained a copy of either the brochure or the roadshow presentation. In any event, paragraph 14 of Mr Burgess's Witness Statement, read as a whole (and as previously related by me) was said to address the key allegation. The reality was that the Claimant had sought, neither to appeal out of time to the Court of Appeal from my decision, or to bring a separate claim in fraud seeking to have the original judgment set aside. In those circumstances, the present application was misconceived and I should dismiss it. Mr Alkin responded briefly to those submissions.

24. In my judgment, this is an application that should be dismissed. As presently formulated, the proposed draft order does not even seek any relief in respect of paragraph 1 of the order that I made at trial, dismissing the claim and refusing the various heads of relief sought. Nor does it, in terms, presently address my order for costs in paragraph 3, as distinct from my order for an interim payment on account of costs in paragraph 4. Putting those technical objections on one side, however, absent any appeal from my judgment it seems to me that the only jurisdiction which the Claimant can properly invoke is that conferred by CPR3.1(7). In my judgment, that jurisdiction should not be exercised in relation to a final Order, at least, and as a matter of discretion, in the circumstances in which this present application comes before the Court.

25. Mr Alkin relied heavily upon Mr Livesey QC's decision in the Latimer case; but I accept Mr Tatton-Brown's submission that that case was essentially very different from the present case. There the Court was being invited to vary an order for costs, on the basis that the individual Defendant had misled the Court as to the solvency of the corporate Defendant. That is a wholly different situation from an attempt to challenge the substantive order of the Court on the substantive matters in dispute in the litigation between the parties. The Latimer case was considered by the Court of Appeal at paragraph 35 of the Tibbles case. It was there said that the Court had held that there was jurisdiction to vary a costs Order to make a party to the litigation responsible for paying the costs of another party against whom an order had already been made. That was said to be a case, where there had been both a material change of circumstances and a material representation. It was said not to advance matters.

26. I find the Latimer case of no assistance where what is sought to be varied under CPR3.1(7) is not simply an order as to costs, but the ultimate decision in the substantive litigation. In the case of Kojima v HSBC Bank Plc [2011] EWHC 611 (Ch), reported at [2011] 3 All E.R. 359, Mr Justice Briggs expressed doubts as to whether the Court could in any circumstances vary a final, as distinct from an interim, Order, to which the public interest in finality applied. Mr Justice Briggs found it unnecessary to conclude whether exceptional circumstances might justify the revocation of a final Order still lest to prescribe in advance what those circumstances might be. That decision is referred to in the commentary at paragraph 3.1.12, at page 70 of the current (2017) edition of Civil Procedure, Volume I, and was also considered at paragraph 38 of the Court of Appeal's decision in Tibbles.

27. At the end of paragraph 39 (i) of Lord Justice Rix's judgment in Tibbles, Lord Justice Rix made it clear that the question whether CPR3.1(7) might apply to a final Order, did not arise in that appeal. What Lord Justice Rix said was that:

"Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR 3.1(7), there [was] in all probability no line to be drawn between the two. The rule [was] apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal."

All of the relevant authorities were considered by Mr Murray Rosen QC in the Clutterbuck case. Having referred to all of those authorities, at paragraph 61 the Deputy Judge said that:

"Left to myself, were it necessary for me to decide the question of jurisdiction, I would hold as a matter of law that CPR3.1(7) was not applicable in the case of final orders. The position in principle and practice prior to CPR3.1(7) - and with continuing currency and emphasis thereafter - is that the only way in which final orders can be challenged, the court itself being functus officio once it has made final orders, save in exceptional circumstances where it has retained jurisdiction and power over the performance of those final orders, is, notwithstanding the allegations of fraud, by way of an appeal or by way of separate fresh proceedings seeking to set aside an order or final orders and judgments as induced by reason of false representations, which would require, of course, pleadings and Part 7 processes - disclosure, witness statements and trial involving cross-examination and the like."

28. In my judgment, those observations are well-founded and I should follow them. When I look at the directions proposed by Mr Alkin, I note that they include provision for statement of case by both claimant and defendant with, if so advised, a statement of case in reply; reasonable endeavours to agree a list of issues upon which disclosure is required, with the matter being referred to the court for a ruling in the event of disagreement; the giving of disclosure; the exchange of witness statements; expert evidence from both parties in the field of forensic linguistics; and then a trial of the matters arising from the statements of case, with an estimated time estimate of two days. In my judgment, it is not appropriate for such directions to be given pursuant to an application under CPR3.1(7) to vary an earlier final order made after the substantive (and expedited) trial of the substantive claim in the litigation. That is particularly so where the original relief sought on the application did not even include any challenge to the Court's substantive judgment or substantive costs Order.

29. This is clearly not an appropriate case to be dealt with under CPR3.1(7). It involves a challenge to the Court's ultimate decision at trial, and effectively requires new litigation, with all appropriate pre-trial processes and an oral hearing on contested witness evidence, with directions also for expert evidence. The matter should be dealt with (if at all) by way of a fresh claim under Part 7. Should I then accede to Mr Alkin's alternative course of accepting his undertaking to issue such a fresh claim, and then give directions in the manner he suggests? Mr Alkin would, no doubt, submit that to adopt that course would give effect to the overriding objective of enabling the Court to deal with the case justly and at proportionate cost. It would save expense, ensure that it is dealt with expeditiously and fairly, and result in allotting to it an appropriate share of the Court's resources, while taking into account the need to allot resources to other cases. It would also address the injunction, in CPR1.4(2)(i), of dealing with as many aspects of the case as the Court can on the same occasion.

30. I have considered whether I should adopt that course; but, in the exercise of my discretion and case management powers, it does not seem to me that I should accede to Mr Alkin's invitation. As Mr Tatton-Brown points out, this case has not been brought by way of a separate claim in fraud; there is no extreme urgency, or indeed any urgency in the matter. This is a judgment that has stood since the middle of 2015. The matters which have given the Claimant cause for concern were first discovered early last year, and have been the subject of extensive solicitors' correspondence since the middle of last year. The Claimant has adopted a particular procedural route. It has done so in reliance upon expert evidence, without seeking permission for it, although Mr Alkin has sought to rely upon factual aspects of that evidence. I am in no position to evaluate the significance of the matters of fact disclosed by Dr Olsson without having regard to matters of opinion evidence, which are not properly before the Court. I am in no position, without the assistance of expert evidence, to evaluate the significance of the factual matters to which Dr Olsson has drawn the Court's attention.

31. So, in all of those circumstances, and given the procedural route the Claimant has chosen to adopt - which I consider to be inappropriate - it does seem to me that I should simply dismiss this application. For the assistance of the parties and any District Judge in the future case management of any further claim that may be issued, I should, however, make it clear that once pleadings - if one can use that expression - have closed in any further proceedings, it would be appropriate for the matter to be brought back before the Court - and preferably before me - if necessary in the Applications List when I am taking it, for further procedural case management directions to be considered and made at that time. But other than that general indication, it seems to me appropriate that I should simply dismiss the application.

32. So that concludes this extemporary judgment.

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