by David Cooper
Banishing his flight of fantasy, Lennie turned to Wagstaff’s statement. He gave a heartfelt snort when he read Wagstaff’s opening lament about how he had only received instructions late in the day, and had to present the paralegals’ story on a second hand basis because of the limited time available. Wagstaff had made no attempt to acknowledge that Avery had been made well aware that legal proceedings were imminent, receiving copies of all the relevant evidence long before the hearing date had been fixed. He had simply glossed over Avery’s decision to leave it so late before looking for legal advice.
So you really think this will help you avoid an injunction, Lennie thought. Come off it.
Moving onwards, he read quickly through the first paralegal’s side of the story. Not surprisingly, Chris Thompson had given an account of events consistent with Avery’s, notably how he had come to use the template that Avery had supplied for the purpose of confirming his decision to leave Ripple.
But wait a minute…
‘This followed Mr Thompson coincidentally finding out that Mr Avery, whom he knew personally, liked and trusted, had set up on his own…’
Lennie could not believe what he was reading. He soon had his aide memoire open on his screen.
18.3.13 (AM). WA resigns from Ripple, via internal email followed up in conversation with Karen.
19.3.13 (AM – before 9.00, in Karen’s quiet time). Email from Thompson defecting to Wave.
To Lennie’s mind, it was plain and obvious that the paralegal’s explanation that he had simply found out about Avery’s new business, without prompting, just did not hold water.
Avery could, of course, have just about pulled out all the stops and set himself up on his own within a few hours after resigning from Ripple, given that his dormant company was already in place and simply awaited a name change. Especially knowing that the main asset of that new business was Avery himself, one man and his mind, working to introduce candidates to potential new employers.
But where was your shop window, Lennie asked rhetorically? Your launch? Your online presence? Your advertising campaign? Who could possibly have heard of you out of thin air?
Lennie looked on through the aide memoire for the two further crucial details.
19.3.13 (PM – around 5.45). Email from Davenport defecting to Wave.
20.3.13 (PM, mid-afternoon). Email from Rider defecting to Wave.
He looked back at Wagstaff’s statement, which went on to explain how the other two paralegals, Davenport and Rider, had supposedly come to sever their connections with Ripple. Both of them admitted that their resignation emails had been based on a standard template, but neither of them had made it clear whether it was Avery himself who had sent it to them. There was nothing in the statement confirming whether or not the three candidates even knew each other. Save for the common interest in personal injury work that linked two of them, the point had been left completely ambiguous.
And even then, just as Thompson had claimed on his own behalf, both Davenport and Rider were asserting that they simply found out that Avery had set up on his own. And that they too both knew Avery personally, and liked and trusted him.
To Lennie’s mind, it all stank to high heaven. He knew that none of these arguments would be put to any searching analysis at the hearing that was now less than twenty four hours away. He felt certain that at a full trial, there would be more than enough scope for a skilled advocate to take the three paralegals’ stories apart in the course of cross-examination, and for a sensible judge to reject their evidence altogether. But that was not what the court had to decide tomorrow. Only the need to determine where the balance of convenience lay. Whether it was in favour of an immediate injunction, or against.
He pulled himself up again. There was clearly a pressing need to address Avery’s allegation that Karen had drawn first blood by dismissing him without notice. Could Karen really have been so impetuous, when faced with the increasing economic threats to her business, as to show Avery the door without giving him any chance to fight his corner? Lennie knew that however favourable his first impressions of Karen may have been, nothing could ever be taken for granted.
Lennie quickly summarised his thoughts in an email to Gilbert Hopkinson’s clerk, then called Karen’s number. The temporary telephonist told him that Karen was in a meeting with a new candidate, and would call back as soon as she was free. Half an hour later, he had heard from Hopkinson. His immediate view, ahead of reading Avery’s statements, was that there would be no need to serve any additional evidence in reply. He was content to argue Karen’s case by relying on well established principles and legal precedents.
Another hour then lapsed before Karen returned Lennie’s call.
“I’m really sorry, my meeting overran. I couldn’t turn a new candidate down, not at a time like this.”
“Don’t worry about it.” Lennie replied. “Most of this is down to the lawyers now. All I need to know is whether you can see anything in Avery’s evidence that’s blatantly incorrect, and if so why. Take your time, and concentrate on what happened when you said you’d need to let him go. You’ll soon get the point.”
Lennie could not have expected the sheer force of the tirade that came storming down the phone line twenty minutes later, once Karen had done as he had asked.
“This is an absolute bloody outrage. He’s lying through his teeth.”
“Where exactly?” Lennie asked.
“Right at the beginning. This business about me saying I was sacking him on that first Thursday, and not giving him a chance to stand up for himself. It’s a total lie, every single word of it.”
Lennie knew that he would need to tread carefully.
“OK, Karen, can I just ask you to calm down a bit. I know we didn’t go into as much detail as he did about what happened in the previous week. What did you tell him, and what makes you so sure he’s not telling the truth?”
Karen suddenly realised that Lennie knew nothing of Avery’s curious habits where technology was concerned.
“Right. What I told him on that Thursday was that I thought I was going to have to let him go.”
“You thought? So you didn’t tell him for definite?”
“No, I didn’t. And there’s two ways I can prove it. For a start, I had some notes. Nothing much, just a prompt sheet, but I’m sure that if I can lay my hands on it, that’s exactly what the notes will say. Totally the opposite of what that prat’s claiming I told him. And then, of course, you won’t have known of this before, but he was wired for sound.”
Lennie was astounded. “He was what?”
“He had a personal tape recorder hidden in his inside pocket. Come to think of it, I nearly lost it with him when I saw him flicking it on, hoping I wouldn’t realise what he was doing. I told him to put it on the table.”
“Did he?”
“Yes, he did…” Karen’s voice tailed off. “Sorry, I’m a complete idiot. If he was flicking it on when I caught him, he wouldn’t have recorded what I said right at the beginning.”
“Hang on, though. What about the rest of the meeting? Did you say anything that made it clear you hadn’t already made your mind up?”
“Yes, lots. I was working off my prompt sheet. I’m absolutely convinced I told him to come up with anything he could, because I didn’t want to lose him if I could avoid it…..and there was something else he said about sacking Neeta instead…..and I adjourned it to the following Monday just to give him some thinking time…..”
Lennie weighed everything up, feeling less troubled than he had been earlier.
“What about his tape recording? Would he have kept it?”
“I doubt it, but…Then again, I wonder if that’s what he’d lost on his last day?”
“What do you mean?”
Karen explained how Avery’s shock decision to leave on the Monday morning had been unexpectedly civil all round, until his sudden mood swing when he discovered that one of his tapes was missing.
“I can o
nly think the Thursday recording was on the tape he’d lost. No sign of it anywhere, though. Dawn had a damned good look for it that afternoon, and never found it.”
“OK, never mind.” Lennie quickly explained that the tape recording was evidence that Avery would have to disclose in the medium term if he ever tracked it down. He assured her that he would be making Wagstaff aware of the issue as soon as they had finished their call, to ensure that it was preserved and not lost.
“Won’t that just make him destroy it?” Karen could not immediately see the sense in drawing attention to an item in her opponent’s possession that might do more harm to his case than to hers.
“Not allowed.” Lennie answered. “If someone gets rid of crucial evidence just because it’s damaging, and it’s obvious that that’s happened, the judge will assume everything against him. If you’re using the civil courts, you need to have clean hands.”
“OK, whatever you think’s for the best.”
Lennie promised Karen an update about the next steps as soon as he had found out what Gilbert Hopkinson thought of Avery’s reply evidence. Karen promised in turn to drop everything and search for her prompt sheet for the Thursday morning meeting that had effectively triggered the dispute. Lennie’s phone soon rang again, this time with Hopkinson at the other end, but the call left Lennie doubting whether his counsel was making the right tactical decision.
“Are you sure we don’t need any reply evidence from Karen Rutherford?”
“Quite sure. I’m happy to take it to the judge on what we have. I can’t see him falling for this nonsense about killing a small business in its tracks. If Mr Avery can’t stand on his own two feet without soliciting Ripple’s clients, he shouldn’t have done this in the first place.”
Lennie was relieved that Hopkinson had echoed a key point of his own. But his unease remained.
“What if she finds her crib sheet? And what about the tape recording?”
“Let me just mention both of them in my submissions when I get the chance. I don’t think I’d like to risk overstepping the time we’ve been allocated. Anyway, I’ve no reason to doubt that my opponent will talk some sense into Mr Avery when he gets here tomorrow, and I’d like to bet Mr Avery will give us the undertakings we want when he’s at the door of the court. Then we can sound the judge out for a speedy trial timetable…..”
Lennie felt reassured that another of his strategic ideas had found favour. Where a court was being asked to grant an interim injunction, and the period of restraint was relatively short, it was common practice for the judge to aim wherever possible to hold the full trial before the restraint period expired. An injunction for the remainder of the restraint period, if the evidence justified it, would then be feasible and meaningful.
The speedy trial was by far the lesser evil. An exceptionally tight trial timetable would be time consuming and costly. But a more leisurely timetable might mean that the restraint period had expired long before the trial. If the court then only had scope to award damages, this might be a major injustice.
“…..and I’ve every reason to believe you’ll stand a good chance of mediating this one away, long before the trial…..”
Don’t be so sure, Lennie thought. I’ve only seen one of the parties close up, and she’s totally driven and as hard as nails. And I sense that’s a pretty fair description of her opponent too.
The call soon finished. “I’ll aim to be up there for one o’clock. Bye, Mr Rose.”
As he put his phone down, Lennie began to wonder whether Hopkinson was the right man for this particular dispute. The reply evidence and the attitude of his opponent had signalled a far dirtier fight than he would have preferred, and he hoped that Hopkinson’s avuncular approach would not lead him to lose sight of what might lie ahead in practice.
Two hours later, the afternoon having long given way to the early evening, Lennie accepted that he would not be hearing from Karen about her prompt sheet, and decided that enough was enough. It only occurred to him on his way home that in marked contrast to her outrage at the allegations over what had taken place on that Thursday morning, Karen had not reacted to Avery’s comments about Ripple’s questionable financial stability at all.
Thursday 11 th April
As he sat at his desk, head in his hands, Craven’s thoughts strayed to his beloved medieval castles. He could not help feeling that his experiences that morning had been similar to ascending an undefended wall inch by inch, only to slip off the ramparts and plummet to the ground at the very last moment when he had almost reached the top.
He had been dreading his first task of the day. The firm had organised a photocall to celebrate its recruitment of a new senior commercial property expert, clearly a partner in waiting, who had joined on the same day as Craven had. Late on the previous afternoon, Squire had told him to come down to the front steps and join in.
“Any publicity is good publicity. Chin up!” Squire’s rallying call was beyond challenge. Craven had acknowledged Squire’s customary bombastic charm with a weak nod, before spending the previous evening frantically revising his interview tips. He had dreaded accidentally spoiling the session for everyone because of his natural distaste for profile raising exercises of that kind.
But to his amazement, he had given what even he knew was a spectacularly good performance. He had somehow risen to the occasion, sharing in the photographer’s praise for how well the session had turned out, and in turn Squire’s. His frame of mind when returning to his office was far better than he could ever have expected. Only for everything to go spectacularly wrong.
On the previous afternoon, he had finished assessing a file that Caroline Shore had passed over to him. The firm’s clients, a Dudley engineering company by the name of MDV Precision Midlands, were deeply entrenched in a dispute involving the supply of automotive components. At first sight, the merits of the clients’ claim for payment of the full purchase price were finely balanced. A forthcoming round of expert evidence was likely to tilt the dispute towards settlement, although a full trial could not be ruled out altogether.
But this took second place in Craven’s mind to the firm’s exposure. The clients had not been billed for any of the work carried out over the preceding two months. Over and above this, the firm would shortly be receiving a substantial bill for the expert’s fees. Craven was well aware that professional experts instructed in legal disputes made a point of ensuring that their instructing solicitors were liable for their fees, rather than the lay clients whom the solicitors would bill subsequently.
Ever mindful of the potential risk to the firm, and not wishing to disturb Caroline Shore with such an issue so soon before her maternity leave, Craven found out that the partner ultimately responsible for the client was William Wilson from the corporate department. He sent Wilson an email explaining the financial risks that he had noticed. He asked whether it would be a sensible idea to invoice the unbilled work and then obtain a payment on account of costs before the firm became more widely committed.
Craven could just about have coped with the stern, but to his mind irrational, reprimand that was flung back in his direction by return email later that morning, if he had been the sole recipient. Wilson had slapped him down, pompously expounding on MDV Precision Midlands’ status as a long established client of the firm who would be deeply offended to have their financial position questioned via a request of that kind, ‘and in case you don’t know, it’s not the Bastables way…’
What made it such a blow for him was the fact that Wilson had copied his response not only to Caroline Shore, but also to Squire. And at that point in time, he had no idea whose side Squire would take. As he reluctantly concluded that the firm’s partners would be almost certain to close ranks, he dreaded what his next encounter with Squire would bring.
* * * * *
With half an hour to go until her application for the injunction against Avery was scheduled to come before the judge, Karen had never felt so far out of her depth. She sat
in the court conference room with her two lawyers, struggling to understand what her barrister Gilbert Hopkinson really thought about her case.
Lennie had tried his very best to put Karen at her ease. He knew what an alien environment it was for her. The sight of two barristers arguing obscure points of law to a judge, each trying to gain the upper hand, would be another world even to the most perceptive lay client. But Karen had felt blinded with science from the very moment that Hopkinson had introduced himself to her and Lennie. It was no comfort that his age and his tone of voice gave her the impression partly of a schoolmaster and partly of a church warden. Lennie had assured her that although Hopkinson himself was not someone he had personally worked with before, he was known to his departmental colleagues as solid and reliable, and Hopkinson’s London chambers were very much a preferred choice for Lennie and his firm.
Karen tried once more to find out why Hopkinson felt that the moral high ground nature of her position was still not enough in its own right to win the day. She was interrupted by a tap on their conference room door, and Hopkinson excused himself to speak to his opponent. When he returned, he explained that Avery was adamant that he would not be willing to give any undertakings, or ‘voluntary injunction’ as Lennie had quickly translated for Karen’s benefit.
Hopkinson went on to tell Karen and Lennie that Avery’s counsel would be arguing that her application to court was knowingly misconceived. He would be doing so not only because of Karen’s clear decision to dismiss Avery without consultation – a point to which Karen instinctively and vociferously objected, eliciting only a patient nod from Hopkinson – but also Ripple’s apparent lack of financial substance.
Anticipating another eruption, Hopkinson tried to reassure Karen that fighting talk of this kind was only to be expected in a dispute of this nature. However, with Avery refusing to negotiate, Karen would have to decide whether to continue with the application, or to withdraw it and concentrate on obtaining a speedy trial timetable. Karen could not understand why Hopkinson was even suggesting the offer of such a lifeline to Avery. She made it quite plain that she was determined to go ahead. She saw no reason to make any concessions, having come this far only to be confronted by mudslinging and blatant lies.