Bourne Rail Ltd & Anor v Ashton & Ors

In a civil claim alleging dishonest conspiracy, the seriousness of the allegations requires clear and adequately particularised pleading, but the applicable standard of proof remains the balance of probabilities. The court must assess the evidence as a whole and draw only proper inferences from established facts. A conspiracy to injure by unlawful means requires combination or agreement, unlawful action causing loss, and intention or expectation that loss will result. Actual loss must be proved. Independent contractors and sponsored rail operatives may generally move between sponsors, and their movement does not itself establish conspiracy. The claims failed where the alleged coordinated wrongdoing was not proved, despite evidence of actual loss in relation to one stream of work.

The claimants supplied labour to the rail construction industry. They alleged that the defendants conspired dishonestly to divert signalling and telecommunications work and operatives to Xrail, misused confidential information, and breached contractual, fiduciary and employment duties. The first defendant also brought a counterclaim concerning his dismissal.

The court considered the identity of the correct Xrail corporate defendant, the alleged conspiracy, confidentiality, breach of duty and contract, actual loss, and the validity of the first defendant’s summary dismissal. An interim order had previously accepted undertakings and granted springboard relief. The central issue was whether the pleaded acts, viewed in the context of the evidence, established an unlawful common design causing loss.

1. Claims dismissed. Judgment was entered for the defendants on the claims, with costs. No order was made at that stage on the first defendant’s counterclaim.
2. The court adopted the approach that serious allegations must be clearly and adequately particularised. Allegations of dishonest conspiracy attract the strictures applicable to pleading fraud: the specific facts and circumstances supporting dishonesty must be pleaded. The standard of proof remained the civil standard, namely the balance of probabilities. In assessing probability, the inherent probability or improbability of the alleged events was relevant, but seriousness did not create a separate standard of proof.
3. The elements of common-design liability required conduct furthering another’s tort in pursuance of a common design, or a combination or agreement pursuant to which unlawful action was taken, causing loss or damage which was intended or expected. A conspiracy to injure by unlawful means was actionable only upon proof of actual loss.
4. The court found that the sixth defendant, Xrail Group Ltd, rather than Xrail Solutions Ltd, was the relevant corporate defendant. However, the evidence did not establish a dishonest conspiracy. The communications, bids and provision of information were capable of being explained by legitimate business opportunities, including potential Middle East and London Underground work. The movement of operatives was consistent with the fluidity of the sponsorship scheme and the tendency of workers to follow managers or established work groups.
5. The claim against Mr Healey was separately considered and failed because there was no evidence that documents sent to his personal email had been supplied to Xrail or used for a non-work purpose. The claims for breach of confidence, breach of contract and breach of duty were also not made out.
6. The court found evidence of actual loss concerning Colas work, because the claimants had been prevented from performing work through loss of operatives. There was no sufficient evidence of actual loss concerning Carillion. That finding did not, however, establish the alleged conspiracy or liability.
7. Mr Ashton had failed to keep senior colleagues informed of essential matters and had created an email giving a false impression, but the pleaded conspiracy and associated claims were not proved.

The judgment records an interim order made by Mrs Justice May on 27 July 2017 accepting undertakings and granting springboard relief. The present decision was a first-instance determination of the claims. No final order was made on the counterclaim at that stage.