GH Cornish LLP & Ors v Smith

A party’s subjective understanding of contractual rights does not determine whether documents were retained in breach of an agreement. The court construes and applies the agreement objectively. In a harassment claim, unattractive or unreasonable conduct crosses the statutory threshold only where its gravity is sufficiently serious to sustain criminal liability. Similar-fact material may be admitted in civil proceedings where it is logically probative, provided the opposing party has fair notice. The absence of forensic evidence is not fatal, but it may materially weaken an inferential case. The court must decide the case on the evidence adduced and must not speculate about evidence that might have been obtained.

The claimants, a solicitors’ firm and two partners, sued a former practice manager. They alleged that he had breached a compromise agreement by retaining confidential documents and by harassing them through anonymous emails, texts and letters. The defendant admitted retaining documents but disputed the contractual obligation and denied sending the communications.

Following a four-and-a-half-day trial, the principal issues were the construction of the compromise agreement, the admissibility and significance of the defendant’s earlier conduct, whether he was responsible for the disputed communications, and whether that conduct amounted to harassment under the Protection from Harassment Act 1997.

1. Breach of contract. The compromise agreement required the defendant to return correspondence, emails, documents and computer print-outs belonging to or relating to the firm, subject to a specific exception. The defendant had retained documents outside that exception. His legal advice and subjective understanding of what he could keep were irrelevant to the contractual question. Judgment was therefore entered for the claimants on this part of the claim.
2. Evidence and inferences. The court accepted that no adverse inference should be drawn from the absence of evidence. It nevertheless assessed the evidence actually adduced and did not speculate about the results of investigations that had not been disclosed. The absence of forensic evidence was not fatal, but was significant in a case depending substantially on circumstantial attribution. The existence of another person at the firms who could have supplied information made the claimants’ inference against the defendant unsafe.
3. Harassment. Section 1 of the Protection from Harassment Act 1997 requires a course of conduct amounting to harassment which the defendant knows or ought to know amounts to harassment. Applying Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224, the relevant boundary lies between conduct that is merely unattractive or unreasonable and conduct that is oppressive and unacceptable at a level capable of sustaining criminal liability. The defendant’s admitted emails, considered alone, did not cross that boundary.
4. Similar fact evidence. Earlier publications and conduct were admissible because they were logically probative of responsibility for the disputed material. The defendant had fair notice because the material had been relied on in support of interim injunction applications. However, the earlier conduct was open and attributable to the defendant, whereas the disputed material was anonymous. The distinction weakened the inference of authorship.
5. The court was not satisfied on the balance of probabilities that the defendant sent any of the disputed communications. The harassment claim and the claims not pursued at trial were dismissed. The claimants succeeded only on the document-retention aspect, with relief to be settled with the parties’ assistance.

First-instance judgment. No appellate history was stated in the judgment.