Centre for Creative Leadership (CCL) Pte Ltd v Byrne Roger Peter and others

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 11 January 2013
• Neutral Citation: [2013] SGHC 4
• Court: High Court (Singapore)
• Hearing Date: 12 July 2012,11 September 2012,11 July 2012,12 September 2012,13 July 2012,10 September 2012,24 October 2012,09 July 2012,17 September 2012,10 July 2012
• Docket Number: Suit No 25 of 2011/Q
• Plaintiff Counsel: Andre Maniam SC, Wendy Lin and Chang Qi-Yang (WongPartnership LLP)
• Defendant Counsel: Tan Chau Yee and Laila Jaffar (Harry Elias Partnership LLP),Indranee Rajah SC, Daniel Soo and Liang Hanting (Drew & Napier LLC)
• Subject Matter: Contract,Illegality and Public Policy,Restraint of Trade,Consideration,Promissory Estoppel,Remedies,Damages
• Published date: 17 January 2013

Woo Bih Li J: Introduction

Suit No 25 of 2011 is an action commenced by the Centre for Creative Leadership (CCL) Pte Ltd (“CCL APAC”) against two of its former employees, Roger Peter Byrne (“Mr Byrne”) and Michael Jenkins (“Mr Jenkins”) for breach of a restraint of trade covenant which, in the present case, is a non-compete covenant (“NCC”) in their respective employment agreements with CCL APAC. CCL APAC is also suing Roffey Park Institute Ltd (“Roffey Park”) for inducement of Mr Byrne’s and Mr Jenkins’ breach of the NCC in their employment agreements. In addition, CCL APAC is suing Mr Jenkins for breach of his fiduciary duties if he did inform Mr Byrne that the NCC in his employment agreement was not enforceable.¹ I should add that CCL APAC initially commenced this action against Mr Byrne and Roffey Park only. It then obtained an order on 4 July 2011 in Summons No 2481 of 2011 to join Mr Jenkins as a defendant in the action.²

On 23 February 2012, Lee Seiu Kin J heard Registrar’s Appeal No 8 of 2012, which was an appeal against the learned Assistant Registrar’s decision to order bifurcation of the trial in Summons No 5441 of 2011. Lee J ordered a trial of the following preliminary issues of law under O 33 r 2 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”): Whether the NCC in Mr Byrne’s and Mr Jenkins’ employment agreements with CCL APAC is enforceable? Whether CCL APAC’s case of “loss of chance” as pleaded in its Further and Better Particulars of the Statement of Claim served pursuant to a request by the solicitors for Roffey Park dated 31 March 2011 and filed on 14 April 2011, may be struck off? On 11 July 2012, I granted CCL APAC’s application to amend some of the particulars on the loss and damage suffered, including those in respect of loss of chance. The amended particulars were filed on 11 July 2012 (“FNBP of SOC Amendment No 1”). However, the defendants maintain that even on these amended pleadings, CCL APAC’s case on “loss of chance” should still be struck out.

The trial before me concerns the two preliminary issues of law set out at [2] as well as an issue of estoppel, which relates to issue [2(a)], arising from certain alleged representations that I will elaborate on later.

The following witnesses testified on behalf of CCL APAC during the trial: Paul Draeger (“Mr Draeger”), the Vice-President and Chief Talent Office of Centre for Creative Leadership (“CCL US”), the parent company of CCL APAC;³ John R Ryan (“Mr Ryan”), the President of CCL US;⁴ Sureish Devandra Nathan (“Mr Nathan”), CCL APAC’s present Managing Director; and Jennifer Ruth Maxson Ford (“Ms Ford”), CCL US’ Global Integration Manager who was seconded to CCL APAC from June 2003 to June 2006⁵ to assist Mr Jenkins as Operations-Manager, Singapore in the start-up of CCL APAC’s operations.⁶ CCL APAC also filed an affidavit by Lily Kelly-Radford, who was the Executive Vice-President of CCL US from 1998 to 2008, but as she was unable to testify during the trial, her affidavit was not admitted into evidence.

The witnesses for the defendants were: The first defendant, Mr Byrne; The third defendant, Mr Jenkins; and Shakander Singh s/o Dharam Singh or Shakander Singh Chahal (“Mr Singh”), CCL APAC’s Financial Controller from 5 March 2005 to 30 June 2010.

Background The parties

CCL APAC is a company incorporated in Singapore in 2003⁷ and is engaged in the business of, inter alia, conducting research, producing publications and providing leadership development and training programmes. CCL APAC is a wholly-owned subsidiary and the Asia-Pacific headquarters of CCL US, a company established in the United States of America (“US”) since 1971.⁸

The CCL organisation (“CCL”) provides the following programmes and services to organisations around the world: Leadership assessment and diagnostic tools for the purpose of development; Open-enrolment programmes (ie, public or off-the-shelf programmes) for multiple clients in a single session (“public programmes”); Customised programmes (ie, programmes tailored to meet specific needs and leadership development objectives of a client) through single or multi-phased sessions (“customised programmes”); and Coaching.⁹

Mr Jenkins was employed on 1 August 2003¹⁰ as CCL APAC’s Managing Director to head its operations in Singapore¹¹ and build awareness of the CCL brand in Singapore. CCL US had previously seconded one of its employees, Dr Meena Wilson (“Dr Wilson”), to assist in the start-up of CCL APAC in Singapore, including overseeing the training of the first cohort of adjunct faculty.¹² After the start-up process was complete, CCL APAC employed Mr Jenkins as Managing Director.¹³ He was subsequently promoted to Vice-President of CCL US’ Asia-Pacific business in 2007.¹⁴ Mr Jenkins tendered his resignation from CCL APAC on 12 November 2008.¹⁵ His last day with CCL APAC was 31 March 2009.¹⁶ Mr Nathan joined CCL APAC as its Managing Director on 25 February 2009.¹⁷

Mr Byrne was initially employed by CCL APAC on a part-time basis as an adjunct faculty and coach in mid-2005.¹⁸ Mr Byrne was later employed full-time as CCL APAC’s Business Development/Conversion Faculty¹⁹ pursuant to an employment agreement between CCL APAC and Mr Byrne dated 31 August 2006.²⁰ Although Mr Byrne’s formal commencement date for his full-time position with CCL APAC was 11 September 2006,²¹ he had apparently started working for CCL APAC about a week before 11 September 2006.²² His last day with CCL APAC was on 29 May 2009 (according to Mr Byrne) or 1 June 2009 (according to CCL APAC).²³

The second defendant, Roffey Park, is a registered charity and limited company²⁴ incorporated in the United Kingdom (“UK”) in 1946. Roffey Park is an educational institute which develops training and research programmes in the fields of leadership and management, personal and organisational development and human resources.²⁵ Mr Jenkins joined Roffey Park as its Chief Executive Officer on or around 1 April 2009.²⁶ Roffey Park incorporated a wholly-owned subsidiary in Singapore, Roffey Park Asia Pte Ltd, on 23 July 2010.²⁷

After leaving CCL APAC, Mr Byrne also joined Roffey Park²⁸ pursuant to an agreement signed on 1 August 2009 (enclosed in a letter under Roffey Park’s letterhead dated 1 September 2009 to Mr Byrne).²⁹ However, it appeared that as early as 26 June 2009, Mr Byrne held himself out as a prospective representative of Roffey Park (see below, at [79]).³⁰ At the time CCL APAC commenced this suit, Mr Byrne was a director of Roffey Park, and was Roffey Park’s representative in Singapore and/or Asia Pacific.³¹ He left Roffey Park around October 2011.³²

Mr Jenkins’ and Mr Byrne’s role in CCL APAC Mr Jenkins

According to Mr Draeger, Mr Jenkins was responsible for creating the business strategy and operational plans to build CCL APAC’s operations and building a team of staff to operate the business.³³ Given the size of CCL APAC when he was employed, Mr Jenkins was also expected to take an active role in business development, by sourcing (whether individually or with a team) for business and client prospects, following up on “leads”, performing needs analysis for clients, collaborating with CCL APAC’s faculty to design programmes to meet those needs, developing a pricing scheme for programmes and developing additional opportunities for ongoing engagement with CCL APAC’s clients.³⁴

Mr Jenkins, on the other hand, stated that his role as Managing Director did not include having direct contact with “[CCL APAC’s] clients for the purpose of any functional tendering process or any programme-related planning, administration or delivery”.³⁵ Mr Jenkins also stated that he seldom met clients or potential clients unless it was to support CCL APAC’s marketing efforts, such as meeting and greeting participants at CCL APAC’s public relations events or hosting clients at CCL APAC’s offices. He was primarily responsible for building up the CCL brand and generating awareness of leadership education in the Asia-Pacific region.³⁶ He made high-level decisions about CCL APAC’s strategy in consultation with CCL US and led the public relations effort for CCL APAC. In relation to business development, he would discuss and develop CCL APAC’s business strategy with the faculty, business development, finance and support administration staff.³⁷

Mr Byrne

According to CCL APAC, Mr Byrne was responsible for driving CCL APAC’s business development and training programmes in the Asia-Pacific region, managing client relations for CCL APAC, consulting with CCL APAC’s clients on their leadership development needs and collaborating with CCL APAC’s faculty to design programmes to meet those needs. Mr Byrne was also responsible for determining the pricing of CCL APAC’s programmes, responding to customers, facilitating and/or conducting public leadership development and training programmes, and conducting marketing seminars and workshops where CCL APAC’s research material would be shared with its clients or potential clients.³⁸

Mr Byrne, on the other hand, stated that his role as Business Development/Conversion Faculty was to “close new business, rather than to seek it”.³⁹ He assisted Carolyn Chan (“Ms Chan”), Director of Business Development at CCL APAC, with technical discussions on programme design in relation to customised programmes.⁴⁰ Ms Chan, Maria Chow (“Ms Chow”), Dr Luke Novelli (“Dr Novelli”) and Mr Singh handled the business development aspect in relation to customised programmes, as opposed to public programmes.⁴¹ It is also undisputed that Mr Byrne consulted with CCL APAC’s clients on their leadership development needs and collaborated with CCL APAC’s faculty to design programmes to meet these needs.⁴²

As faculty, Mr Byrne would also help to design and develop programme content and teach. Mr Byrne stated that he only assisted the then lead faculty,⁴³ Dr Novelli, twice in...