Alesco Risk Management Services Ltd & Ors v Bishopsgate Insurance Brokers Ltd & Ors

An employer may recruit employees of a commercial rival, including several employees at about the same time, provided that the recruitment is not effected through unlawful solicitation, misuse of confidential information, inducement of contractual breaches or conspiracy. Employees remain free to seek alternative employment and to resign at a time of their choosing, even where their conduct has an ulterior commercial motive. A contractual obligation to disclose offers from competitors covers oral as well as written offers and extends to the identity of the offeror. Fiduciary duties do not arise merely from seniority, autonomy, access to confidential information or productivity. A loan from a prospective employer is not inherently unlawful; its legality is fact-sensitive and depends on whether it is connected with breaches of duty.

The claim concerned an alleged unlawful team move from Alesco, an insurance broker, to companies associated with the Ardonagh Group. Four principal employees resigned between June and July 2017, followed by several ancillary employees. The claim alleged lawful-means and unlawful-means conspiracy, breaches of contract and confidence, fiduciary breaches, inducement and dishonest assistance.

The principal issues were whether the recruitment was a coordinated unlawful team move, whether a loan made to Mr Burton was unlawful, whether contractual disclosure obligations had been breached, whether fiduciary duties arose, and whether any breaches caused recoverable loss.

1. Disposition. The conspiracy, fiduciary-duty, dishonest-assistance and most contractual and confidence claims failed. The court found limited breaches of contract and confidence, but no loss resulted from them save for the loss of one OPC renewal caused by Mr Hasan’s breach of his duty of fidelity during garden leave.
2. Recruitment. The Corporate Defendants and Mr Ross were entitled to recruit employees individually, even if they hoped to recruit several people and even if the resignations occurred close together. The evidence showed individual recruitment through the Corporate Defendants and recruitment agents, not an unlawful combination among the employees. The employees had independent reasons to leave and would have left when they did.
3. Conspiracy. The lawful-means conspiracy failed because the predominant purpose was to advance the Corporate Defendants’ business, not to injure the Claimants. The unlawful-means conspiracy failed because no unlawful combination or causative loss was proved. Mere recruitment, staggered resignations, non-disclosure and common employment destinations did not establish the tort.
4. Disclosure clause. The contractual obligation to disclose knowledge of an offer from a competitor applied to oral and written offers and included the identity of the offeror. It did not depend upon the offer itself being wrongful. The clause was not an unlawful restraint of trade on the construction adopted.
5. Fiduciary duties and loan. Mr Burton and Mr Hasan were not general fiduciaries. Seniority, autonomy, client contact, confidential information and general contractual obligations to promote the employer’s business were insufficient. The Burton loan was intended to make Bishopsgate a more attractive prospective employer, but was not shown to be consideration for solicitation or other breaches of duty and was not inherently unlawful.
6. Specific breaches and loss. Mr Hasan breached contractual and equitable duties by supplying confidential business-plan material and by assisting the transfer of the OPC renewal during garden leave. Price Forbes and Bishopsgate induced or procured that breach through Mr Newman. The recoverable loss was confined to the 2017 OPC renewal; later losses were too speculative or would have occurred after expiry of the restrictions.