Asia Pacific Sports Management Pte Ltd v Reginald Martens

• Jurisdiction: Singapore
• Court: District Court (Singapore)
• Judge: Francis Tseng
• Judgment Date: 22 May 2012
• Neutral Citation: [2012] SGDC 181
• Citation: [2012] SGDC 181
• Hearing Date: 06 December 2012,19 March 2012,29 November 2012,05 December 2012,28 November 2012,12 October 2012,11 October 2012,07 December 2012,30 November 2012
• Year: 2012
• Published date: 13 June 2012
• Docket Number: District Court Suit No. 2532 of 2010 R, District Court Appeals Nos. 13 & 14 of 2012
• Plaintiff Counsel: Mr Kelvin Lee Ming Hui (M/s Sankar Ow & Partners LLP)
• Defendant Counsel: Mr S H Almenoar & Mr Raji Ramason (M/s R Ramason & Almenoar)

District Judge Francis Tseng: BACKGROUND

This case arose out of the termination of a contract of employment. The Plaintiffs were a company involved in the business of sports management. Their clients were mainly schools and institutions of learning for which they conducted sports courses, including cricket courses and programmes. The Defendant was employed by the Plaintiffs to liase with their clients and coaches, to provide cricket coaching and competitions, and to oversee the cricket programmes of the Plaintiffs. This contract of employment came to an end on or about 13 December 2009.

The Plaintiffs claimed, inter alia, that the Defendant had, while under their employment, breached his contractual, equitable and fiduciary duties by: soliciting their clients, causing them to cease participation in the cricket courses conducted by the Plaintiffs; soliciting the services of the coaches employed by the Plaintiffs, causing them to leave the employment of the Plaintiffs; failing, refusing and/or neglecting to collect on behalf of the Plaintiffs payments for various courses or alternatively failing to pay over any such sums collected; failing, refusing or neglecting to return to the Plaintiffs sports equipment belonging to the Plaintiffs; and removing from the Plaintiffs’ server confidential information, to wit, the contents of a “Cricket” folder which contained details of the Plaintiffs’ clients and cricket training programmes.

Before delivering judgment, I provided the following brief findings to the parties: Under the terms of his employment, the Defendant had not agreed and therefore was not obliged to coach cricket exclusively for the Plaintiffs’ programs. Solicitation by the Defendant of the Plaintiffs’ participants has not been established on the evidence before me. I do not find that there was any obligation on the Defendant, under the terms of his contract of employment with the Plaintiffs, to have to hide from the Plaintiffs’ participants the fact that he was intending to leave and set up a cricket academy of his own, so long as he did not, during his period of employment, actively invite them to leave the Plaintiffs and join him. The participants were free to choose whoever they wanted to go to for cricket coaching. The Plaintiffs have been unable to provide any direct evidence whatsoever that the Defendant had in fact issued any invitation to the participants to join him. The mere fact that the participants did indeed join the Defendant’s academy after the termination of his employment with the Plaintiffs is inconclusive insofar as solicitation is concerned, as, given that the Defendant is generally recognised as a very good cricket coach, it could very well have been that it was the participants who had requested to join the Defendant and not that the Defendant had invited them to join him. And if the participants had requested to join the Defendant’s academy after he had left the Plaintiffs’ employment, I do not find that there was any obligation on his part under the contract to have to turn them away. At best therefore, the fact that the participants had joined the Defendant’s academy would only give rise to a mere suspicion of solicitation entertained by the Plaintiffs, which falls far short of saying that solicitation has been proved on a balance of probabilities. Similarly, the coaches were also free to choose who they wanted to join and there has been no evidence produced that the Defendant had actively solicited their services for his own academy or induced them to break any contracts they may have had with the Plaintiffs. On the evidence, there were special sessions conducted for high performers amongst the Plaintiffs’ participants. The Plaintiffs have failed to prove that any fees had been levied in respect of these sessions. The Plaintiffs have therefore failed to establish that the programs concerned were established for the Defendant’s own financial benefit. The Plaintiffs have also been unable to pin-point any payments that had been collected from any of their participants by the Defendant which had not been handed over to them. Any outstanding payments that the Defendant had failed to collect remain owing by the participants to the Plaintiffs, who have accordingly been unable to show that they have suffered any loss in this respect since they have not adduced any evidence that they had tried to collect such payments but were unable to do so. Likewise, I am not satisfied on the evidence that the Plaintiffs have made sufficient efforts to try to recover the sports equipment that they claim the Defendant had failed to return to them. This equipment, according to the Defendant, had been left at the various venues where the Plaintiffs’ cricket programmes were held. Accordingly, any loss on the part of the Plaintiffs in respect of such equipment has not been sufficiently established. As against the Defendant however, I find that he did in fact remove the contents of the “Cricket” folder from the Plaintiffs’ server. While this may have had the effect of preventing the Plaintiffs from competing with the Defendant for those participants whose particulars were contained in that folder, the fact that the Plaintiffs did not have any coaches available at that point of time would leave open the question as to whether they would have been in any position to run programmes or to attract any participants to engage their services. It therefore remains to be assessed what actual loss had been caused to them by the removal of that information. The exact contents of the “Cricket” folder have never, in the course of this hearing, been specifically itemised. Only a general description is available in the AEIC of Ulli Niedermeyer, which reads as follows: “The ‘Cricket’ folder contains confidential information relating to the Plaintiffs’ business including their sports programmes, information on their students/clients, their employees and their business contacts.” This general description was not challenged by the Defendant.”

I then proceeded to award interlocutory judgment for the Plaintiffs with damages arising only from the removal of the “Cricket” folder to be assessed. I also granted the Plaintiffs an injunction against the Defendant restraining him from using or disclosing any confidential information removed from the “Cricket” folder relating to the Plaintiffs’ business, including their sports programmes, information on their students/clients, their employees and their business contacts, but excluded from this injunction any such information lawfully obtained by the Defendant from separate and independent sources of his own. I also ordered the Defendant to deliver up all documents and materials in his possession, the use or disclosure of which would offend against that injunction.

The Plaintiffs have appealed against such part only of my decision as decides that: Under the terms of employment between the Plaintiffs and the Defendant, there was no obligation on the Defendant to coach exclusively for the Plaintiffs; Solicitation of the Plaintiffs’ customers/clients had not been established; Solicitation of the Plaintiffs’ coaches had not been established; The claim for outstanding payments for overpayments to coaches had not been established; and The claim for sports equipment had not been established.

The Defendant has cross-appealed against the interlocutory judgment against him for damages arising from the removal of the “Cricket” folder and the granting of the injunction against him.

The areas under appeal all involve mainly questions of fact. I shall deal with each of them in turn.

ASSESSMENT OF THE EVIDENCE The Exclusivity term

There was no written contract of employment signed between the Plaintiffs and the Defendant. There was a draft contract given by the Plaintiffs to the Defendant in which the Defendant’s duties were spelled out as including (amongst others) that he was to coach cricket exclusively for the Plaintiffs. This draft was amended by the Defendant and returned to the Plaintiffs, and the amended draft showed quite clearly that that this clause had been removed. As no further draft was ever prepared and no final document was ever signed, there was no independent evidence before me to show what the parties had eventually agreed upon. It is clear, however, that the Defendant had registered his disagreement, at least initially, to the inclusion of the clause.

Affirmanti Incumbit Probatio – “He who alleges something must prove it” [Immanuel Kant (1724-1804)]. This general principle of evidence is trite. It is codified in section 105 of the Evidence Act: “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”. In this case, it was the Plaintiffs who wished me to believe that the unwritten contract of employment included a clause that the Defendant was to coach exclusively for them and they failed to discharge the burden of proving this. In light of the fact that the Defendant had indicated a clear objection to such a clause at the time when the contract was being negotiated, and in the absence of any concrete proof from the Plaintiffs that he had subsequently withdrawn that objection, it would already seem more probable than not that the Defendant had never agreed to coach exclusively for the Plaintiffs. Added to this, however, there was this evidence of the Defendant under cross-examination¹: “Q: Did you ever take any cricket coaching position outside the Plaintiff while under their employment? A: I was head of cricket at the Singapore Cricket Club, the head coach of Tanglin Trust School, and the coach for UWC where the school paid me for my services.” It was never put to the Defendant that the holding of these positions, especially the coaching...