Thurstan Hoskin v Jewill Hill & Bennett & Ors

In civil proceedings, solicitation may be proved on the balance of probabilities from the whole evidential picture. Direct evidence from a client who was solicited, or an admission by the alleged solicitor, is not required. The trial judge may assess circumstantial evidence and witness demeanour. An appellate court should not interfere with a supported finding of fact where it has not seen the witnesses. Permission to appeal should be refused where there is no real prospect of successfully challenging that finding.

A firm of solicitors brought proceedings against another firm and two former employees, alleging that the employees had breached restrictive covenants by soliciting former clients. His Honour Judge McKintosh held that the covenant was valid and found, on circumstantial evidence, that both former employees had solicited the clients. The third defendant, Mr Kidd, sought permission to appeal against that finding of fact. The central issue was whether the absence of direct evidence or an admission prevented a finding of solicitation, and whether the Court of Appeal should interfere with the trial judge’s assessment.

Lord Justice Aldous refused Mr Kidd’s application for permission to appeal.

1. The issue was whether solicitation had occurred on the balance of probabilities. The judge was entitled to consider the whole evidential picture, including the timing of the defendants’ departure, the preparation and use of client-transfer authorities, the client list, the urgency of establishing the new practice, and the defendants’ evidence.
2. Direct evidence from a client who had been solicited was not essential. Nor was an admission by Mr Kidd required. His denial was part of the evidence, but it did not prevent the judge from drawing an inference from the surrounding circumstances.
3. The judge was entitled to assess credibility, reliability and demeanour after seeing the witnesses give evidence. The Court of Appeal had not seen them in the witness box and therefore had no proper basis to interfere with a finding of fact supported by circumstantial evidence.
4. There was no real prospect of a successful appeal against the finding. Permission to appeal was refused. The formal order was that the application for permission to appeal be refused.

• Court of Appeal (Civil Division): On 9 May 2001, Lord Justice Aldous refused permission to appeal against the factual finding of solicitation: [2001] EWCA Civ 719.
• Truro County Court: His Honour Judge McKintosh held on 24 January 2001 that the restrictive covenant was valid and that the former employees had solicited former clients.