The Advocacy Lecture Series: Preparation for Interim Applications by Timothy Dutton QC

Part 2: A Well Prepared Application- Steel Pressings V Ploughman Lets look at a good anecdote for interim relief. And this concerns the case which is used at the Keble College Advanced Advocacy Course. Its known, its been fictionalised and confidence has been protected. Its known as Steel Pressings and Ploughman. And Im going to talk you through the case on the facts as theyre described in the Advocacy Problem and if any of you end up going to Keble, youve got a few tips from me as a result of this. But Im, this is very close to the real case. Mr Ploughman was employed by Steel Pressings and was also a Director sitting on the Board of Steel Pressings. Under his Contract of Employment he was obliged to act of course in the best interest of the company, he had to preserve the companies confidential information and he couldnt divulge information which came to him which was secret as part and parcel of the companies business. The company was in steel trading, international steel trading and merchanting. He had a six month notice clause under his

Contract of Employment and by virtue of his position as a Director of course he owed fiduciary duties to the company. Ploughman himself was a

charismatic and successful trader in steel, concentrating in Eastern Europe. He approached the Managing Director and the Finance Director of Steel Pressings and said that he decided the time had come for him to set up in business with a Russian Oligarch who we have called Mr Brabinski and he

The Advocacy Lecture Series: Preparation for Interim Applications Part 2

Page 1 of 7

was going to merchant steel with Mr Brabinski. Hed really just come to a career point, a life point, his marriage wasnt going desperately well and an affair had started with a member of staff and really it was time for him to get out. But he said he wanted to foreshorten his notice period to one month from six months and he agreed, so it was contended by Steel Pressings that he wouldnt contact any clients during that one month period, he wouldnt take any staff during that one month period and he wouldnt touch any of the companies deals during that period. Six weeks after that conversation, in other words the one month notice period was agreed to, two or three weeks afterwards Steel Pressings arrive in a Barristers set of chambers saying, he started up in competition, hes getting our business, hes been ringing our staff, we think he may have been touching some of our trays in order to move them away from the company during his employment. What staff are now indicating they want to leave, what can we do. Now the problem which the claimant counsel faced when that, when youre in that situation is that the notice period has expired and the first question you therefore need to address with your clients is what is the cause of action which you, the claimant, Steel Pressings, may have. Now there are a number of possible causes. You might be able to argue that it is in breach of his contractual duty to act in the best interest of the company during the period up until the conclusion of the one month notice period which may be a foundation for injunctive relief. You might be able to do that. On the other hand members of staff hadnt yet left, it was not actually clear and not certainly strongly clear as to in what particular ways hed not been

The Advocacy Lecture Series: Preparation for Interim Applications Part 2

Page 2 of 7

acting in the best interest of the company. You might be able to argue that there was a misrepresentation under section, under the Misrepresentation Act which founded the variation in the contract and that during the one month notice period he was actually in breach so that you have a cause of action in actionable misrepresentation. You might want to argue that youve got a

claim in fraud. And you might want to argue youve got a claim in breach for fiduciary duty. Now during the run up, and this is in the advocacy exercise you have to work out which of these causes of action youre actually going to go for if you make an application for urgent relief. If you want to plead fraud, youre going to have to have cogent evidence of it. And if you obtain an injunction on the back of a fraud allegation, youre going to need to know that you can persist with it and not have it set aside and watch everything else unravel because youve hit on too strong a cause of action. As it happened in the case in question the options taken were for breach of the fiduciary obligation, the Misrep Act contention and the contractual breach. The remedy at this interlocutory stage was limited to not approaching staff, not dealing with contracts where he had been dealing during his employment which was sufficient to prevent the Steel Pressings business disintegrating but also sufficient to enable him to continue to set up the business which it was anticipated he would set up. The length of the relief by virtue of the Misrep Act claim could then extend beyond one month. Now all of this thinking process and the accumulation of evidence is going on in a period of hours because you want to be in this case we were in court

The Advocacy Lecture Series: Preparation for Interim Applications Part 2

Page 3 of 7

within about 48 hours of the clients coming through the door. That is the way that as an advocate youve got to approach this and then of course youve got to build your evidence from your clients up to ensure that youve got an evidentially sound cause of action for the relief which you want to obtain. We go ex parte in front of the judge without notice and obtained relief along the lines Ive just suggested and now comes the fireworks. All of this is

served on Ploughman and on Brabinski because one doesnt want Brabinski to use Ploughmans knowledge and whisk away with the business. Although he was eventually not kept in as a party to the action and specialist employment counsel expert in confidentiality appears at the interparte stage in front of the judge, five days later for a ferocious two hour argument. Hes left; its denied that he, that the conversation was in the terms that was said and so and so on. Now relief was kept in place and it was kept in place because the evidence from the participants to the conversation on the claimants side was very strong. It was and it was documented with a note. On the defendants side there were broadly bare denials so when the judge was looking at the strength of the case, remember this could almost be final, he had a powerful evidential case on one side. When looking at the relief he was able to say to himself well this man can still continue with his new business, he cant just gain the benefit of the old. And if youre looking at relief which may be final because the trial is someway off, the judge looks much more keenly at the merits. So its not just in this kind of case whether theres a seriously arguable case, its whether actually youve got a winnable case if this hearing is going to be

The Advocacy Lecture Series: Preparation for Interim Applications Part 2

Page 4 of 7

determinative. And the result was that the relief continued until either the trial of the action, or the expiry of the six month notice which would otherwise have prevailed and the Steel Pressing business was preserved, it was saved. One looks for relief in an interim application which is no greater than the minimum you need to sustain your clients interest and which you can hold onto during the case. Dont apply for too much because it doesnt work on the basis that the more you ask for, if you come back a bit from an over dominant, an over strong request, well youre do alright on the compromise. What

happens in that process if you, if we had said this mans a fraud, we want disclosure of all of the documents, we want to get our hands on everything hes doing, we want to see all the telephone transcripts. Ultimately you may get nothing and perhaps more significant is the fact that your trust with your tribunal becomes diminished. Youve got at any interim application but

particularly an interim application where the other side arent present because its urgent, your trust with the tribunal has to be in present and must be preserved right the way through. So you can only ask for what you

individually credibly believe as an expert you will be able to retain throughout the proceedings and why. Its a very personal judgement. Its all very well for me to say you must make full and frank disclosure, actually this boils down to, you must only ask for what you know you can credibly and properly sustain. Those who go in too hard tend to come off much the worse at the end of this process because after 3 or 4 appearances in front of a judge where youve been making all sorts of bad points, asking for far too many things, your credibility goes and he looks for assistance from the other side.

The Advocacy Lecture Series: Preparation for Interim Applications Part 2

Page 5 of 7

You need obviously to ensure that your evidential case is robust from the start. Fact gathering, once youve done your analysis of where are my I

causes of action, fact gathering is absolutely critical. And its essential that you draft an order for the relief which you intend to seek at a very early stage. I actually make this once Ive worked out my causes of action, I make this the key part, what is the order I want? And then when you go in front of the judge your written argument says this is who we are, this is the order we want and why and here are the documents in your written argument which are in the bundle and heres the order. And when you speak you say this is what we want and why and you quite often have in criminal cases the following that happens and you have it in civil cases. If youre in a criminal court, your Honour, the following things have happened over the last two weeks since we were last before you, oh yes, well we didnt get disclosure from the prosecuting of this, oh and the prosecutions witness PC Plod isnt available, oh really and then they say so there and they sit down and then the other side get up and then say well this is all very well but we havent had a defence case statement. And eventually the judge says what are you asking me to order, whats the order Ive got to make and this is an adversarial system. And in civil law its an adversarial as anywhere else, you have to say what it is you want him to do and why, what the order is he or she has to make and why, and you have to had drafted it. The judge isnt there to advise or assist, hes actually there as the recipient of your case and with luck the provider of orders. If you arent going in with a shopping list of what you

The Advocacy Lecture Series: Preparation for Interim Applications Part 2

Page 6 of 7

want to come out in your shopping basket as you leave the court room door, somethings gone wrong. So you have to think about your shopping list.

The Advocacy Lecture Series: Preparation for Interim Applications Part 2

Page 7 of 7