MAURIELLO (HONG KONG) LTD. v. JULIE CHEN SOO LEE t/a ROHEMIAN SHOP

1987, No. A7088

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. In 1977 the plaintiff in this action began to do business with F 11i Claudio and Carlalberto Corneliani SPA ("Corneliani"), an Italian manufacturer of high quality menswear. The plaintiff ordered goods from Corneliani and sold them at its boutique at 48-50 D'Aguilar Street, Central. The trading relationship was initiated by a director of the plaintiff, Mr Mauriello. His wife, Mrs Mauriello, was another director and played an active part in the business. Corneliani exhibited goods at the Pitti Fair held in Florence in January and July. At or after the fair in January, the plaintiff would buy goods for the next Autumn/Winter Season. At or after the fair in July, the plaintiff would buy goods for the next Spring/Summer Season. As the trading relationship developed, Corneliani would select goods (without necessarily reserving the cloth) against prospective orders from the plaintiff, and submit an order proposition to the plaintiff accordingly, so that it would be possible for the plaintiff to place an order without attending the fair and at a date comparatively late or close to the beginning of the season; but probably no later than April or May for the Autumn/Winter season and September or October for the Spring/Summer season (otherwise, the cloth might be no longer available). And Corneliani would supply goods to the palintiff without prior payment. Corneliani did got deal with other customers in Hong Kong and held out the plaintiff as having the execlusive right to sell Corneliani goods here.

2. With effect from the 1st May 1984 the plaintiff engaged the defendant as manageress of the boutique. She started on a probationary basis. After some months her employment was confirmed on a permanent basis. Mrs Mauriello believes that the defendant entered into a written contract of employment with the plaintiff. But the plaintiff could not produce its copy of such a contract; and the defendant says there never was any such contract. She did produce a certificate, dated 1st September 1984, under the hand of one Stella Lee, the plaintiff's financial controller, in the following terms :-

"TO WHOM IT MAY CONCERN

MISS JULIE S.L. CHEN

This is to certify that Miss Julie S.L. Chen has been employed by our company as Boutique Manageress since 1st May 1984. Her monthly salary is HK$6,000.00 plus sales commissions."

3. This is silent about the terms (if any) of the defendant's employment as to determination on notice. Mrs Mauriello believes the missing contract provided for a period of 2 months on either side. The defendant says her engagment was not on any such terms. There is, in my judgment, insufficient proof of the plaintiff's case on this point and I find that the contract was determinable on reasonable notice, being, in all the circumstances, as least one month's notice. From the plaintiff's point of view, of course, a longer period of notice from the defendant would be desirable; but I have to consider as well the reasonableness of the period from the defendant's point of view.

4. The defendant soon assumed considerable responsibility in the business and under the eye of Mrs Mauriello did very well. By November 1984 she was in direct contact with Corneliani as occasion required. She was in direct contact with the customers and indeed she collected business cards from some of them. The "Borsalino" boutique (that is what it was called) prospered.

5. In 1985 the plaintiff appears to have become concerned about its right to be treated by Corneliani as Corneliani's sole customer in Hong Kong. On 23rd May 1985 it got confirmation that it would have exclusivity for the Autumn/Winter Season 1985. On 28th May 1985 it got confirmation "also for next seasons" (whatever that means) for orders "of the same number of pieces of the past". Mrs Mauriello was not pleased. She replied "Your telex 29th May is a joke, who do you think I am? I am very disappointed". Mr Mauriello was later given some soothing assurances on the subject on a visit to Italy. There is nothing else in writing. The plaintiff felt it best to leave the matter there.

6. On this evidence, I was invited to find that the dealings between the parties gave rise by 1986 to a contract between Corneliani and the plaintiff under which they were bound, in the case of Corneliani, to supply the plaintiff (whether exclusively or not) with Corneliani goods from season to season until the arrangement was terminated by reasonable notice on either side, being a notice given (in the case of the Autumn/Winter season) before the date of the January fair or (in the case of the Spring/Summer season) before the date of the July fair. In my judgment, the evidence comes nowhere near establishing such a contract. In practice, Corneliani did treat the plaintiff as its sole customer in Hong Kong and it held out the plaintiff as such to everyone else. But that is not enough to establish anything more than a so-called gentlemen's agreement (as, indeed, Mr Mauriello was himself content to describe it). A gentlemen's agreement, however, has been well defined as one in which each party hopes the other will behave like a gentleman, without having any intention of doing so himself. This case seems to me to provide an excellent demonstration of the accuracy of this definition.

7. There was, I find, no contract of any description at any stage between Corneliani and the plaintiff save such contracts as were constituted from time to time when the plaintiff placed orders and Corneliani accepted them.

8. The defendant had ambitions beyond managing the Borsalino boutique. On 2nd April 1986, in collaboration with her boyfriend, one Mr Shung, she caused to be incorporated in Hong Kong a company called Canali Ltd. Canali is the name of another Italian menswear manfacturer. The idea was to find shop premises and sell Canals and other similar goods from them; in order words, to open another menswear boutique.

9. But this idea did not immeidately get beyond the planning stage.

10. In 1986 the competition in the field seemed to intensify. The defendant decided to leave her job at Borsalino. She told Mrs Mauriello that she was going to get married, which was not in fact true. On 1st December 1986 she gave Mrs Mauriello a written letter of resignation. It reads as follows :-

"Dear Mrs Mauriello,

Letter of Resignation

I regret to tender hereforth my notice of resignation from the post of Boutique Manageress of Borsalino Boutique, effective one month from today, 1st December, 1986.

Since the commencement of my service to your Company on 1st May 1984, 1 have put forth my genuine interest and best effort in the post. I swish to thank you for the many learning experiences you have kindly given me luring this period of employment.

Wishing the Boutique a prosperous future, I thank you for your kind attention.

Yours sincerely,

Sd. Julie S.L Chen"

Miss Chen sent a copy of that to Miss Peggy Chan, the Plaintiff's Chief Accountant.

11. With Christmas coming up, this was, from the plaintiff's point of view, a very inconvenient time to lose the manageress of its Borsalino Boutique. Indeed, it was a blow from which the Borsalino boutique does not seem to have recovered. The parting was pretty frigid. (It was not, however accompanied by any protest from the plaintiff that the notice given was too short, a fact which further weakens the plaintiff's case on the question whether or not the defendant was bound by some written engagement to give not less than 2 months notice.)

12. On 22nd December 1986 Mrs Mauriello gave the defendant a reminder referring to 18 reports which she had to make and things she had to do. In fact the defendant had been doing them, and making some considerable use of the plaintiff's photocopier in the process.

13. On 23rd December 1986 and 24th December 1986 there was an exchange of letters between Mrs Mauriello and the defendant. I will read them. The first is a letter of 23rd December 1986 from Mrs Mauriello to the defendant. It reads:

"Dear Ms Chen,

Despite the express demand of the Management to stay until the stock situation has been cleared, you have left your post which is in breach to fulfil your duties as Manageress. We inform you that we hold you liable to any discrepancies should any arise and shall take action accordingly."

The next letter is the reply of 24th December 1986 from the defendant to Mrs Mauriello. It reads :

"Dear Mrs Mauriello,

With reference to your letter dated December 23, 1986, I wish to inform you that I did attend to work on December 23, 1986. Your statement in your letter of my leaving the Post as Manageress is unreasonable.

I would like to confirm herewith your verbal instruction given to me yesterday afternoon that I am no longer needed to attend work as from December 24, 1986 although I offered to render my service to the Boutique if required even with my ample notice given to you for my resignation.

Furthermore, during my working hours on the 23rd, I have answered and cleared with the Company Chief Accountant, Miss Peggy Chan, all queries relating to the stock situation, which is generally in order. Nevertheless, I am more than willing to come to your office should you require further informaiton regarding the stock situation. A meeting can be arranged at any time of mutual convenience.

All the keys giving access to the Boutique and to the 2/F office have been returned to your secretary, Miss Savan Yim yesterday. I shall not be held responsible for anything happening to the premises thereafter.

In addition, all reports, files, and documents have been handed over to you in full. I should consider myself to have completed all duties as the Manageress of the Boutique.

I wish to take this opportunity to thank you again for your kind guidance in the past years while I was working for you in your esteemed boutique."

14. These two letters contain differing accounts of what appears to have happened on the days in question. Where there is a conflict, I prefer the evidence of the defendant. (I would interpose here that I received evidence from the defendant, which I accept, and from her boyfriend Mr Dicky Sung, which I also accept. I thought both of them were witnesses of truth. I received evidence on the plaintiff's side from Mr Mauriello and Mrs Mauriello. Mr Mauriello is an excitable and emotional person, and while I have no doubt at all that he was doing his best to tell me the truth, I am sure his evidence was on occasion coloured by his belief as to the course of events which could not always be justified as a matter of fact. Mrs Mauriello was more collected. But where her evidence differs from that of the defendant, I prefer that of the defendant. Mrs Mauriello, like Mr Mauriello, was, I think, inclined to take the view which was most favourable to the plaintiff's case even though her recollection of actual events might not have been as clear as the view of them which she expressed in the witness box.)

15. I return to the events of the end of December 1986. The defendant was paid by the plaintiff up to 31st December 1986. There was no objection from Mrs Mauriello. On 5th February 1987 the defendant was given a reference, again without objection from airs Mauriello. I will read it :-

TO WHOM IT MAY concern

Re Miss Chen Soo Lee, Julie

This is to certify that Miss Julie Chen was employed by our company as 'Boutique Manageress from 1st May 1984 up to 23rd December 1986.

Miss Chen was responsbile for all the operations of our Borsalino Boutique and reported directly to the director of the company. Her duties include selecting the merchandise, supervise and training of the salesgirls, advertising and promotion of the boutique.

During her service with this company, Miss Chen has discharged her duites satisfactorily and demonstrated a good appreciation of the requirements of her position.

Miss Chen resigned of her own accord. We wish her every success in her future endeavours "

16. It is noteworthy that this reference was not in fact signed by Mrs Mauriello, but by the Chief Accountant. However, it is the plaintiff's reference, and I do not think I can ignore it.

17. In fact, after a period doing nothing the defendant went to work at another boutique for a short while. During this time and afterwards, the plaintiff, without finally deciding what to do with the Borsalino boutique, formed some gloomy views about its prospects and had tested the water by putting the shop and its stock on the market. Not surprisingly, this seems to have given rise to rumours about the future of the business between Corneliani and the plaintiff. These rumours got back to the defendant. She and Mr Sung decided to see if they could persuade Corneliani to deal with there. They used the company Canali as the vehicle for this approach, which they made by telex on 17th February 1987. The telex reads :-

"We are a retailing company engaged in import of top Italian menswear, we know your product and are very interested to import your full collection starting Autumn/winter 87-88. If you are ready to accept our proposal, we would like to place immediate order for Autumn/Winter 87-88 as soon as possible. We will have a shop at the Peninsula Hotel for your label. We request your kind reply within the week. After your return telex, we'll phone you for further discussion."

18. The answer back code on the telex was "62111 JCHEN HX". Corneliani knew the defendant by name. I suspect it must have appreciated this approach came from or through her. It reacted favourably. I will read its reply, dated 27th February 1989:

"We would be pleased to meet you, so please advise about a possible meeting in Italy.

We have a show-room in Milan and one at our head-office in Mantova.

Looking forward to your kind reply,

Best regards"

19. On 30th March 1937 this was followed up in the following terms in another telex from Corneliani to Mr Dicky Sung :-

"Following our telephone conversation, we confirm the following :

1. Starting from the Autumn/Winter 87 season, we will be able to grant you the Corneliani label for your future purchase order.

2. When placing your order the collection will still be quite interesting.

In consideration of the above mention points we wish to arrange a meeting with you for 21.4.87 hour 12 at our show-room in Milan whose address we give you as follows :

Show-room Corneliani Via Valparaiso 1 Milan"

20. Meanwhile things got worse at Borsalino. Even the staff were talking about its demise. As Borsalino declined, Canali ascended.

21. On 21st May 1987 the defendant succeeded in getting the exclusive rights which the plaintiff had failed to achieve.

22. In April, as we have seen, the defendant was offered an appointment with Corneliani. She took it up and went to see them. She was aware of the need to protect the exclusive right to sell Corneliani goods in Hong Kong. She was also aware that there were problems between Corneliani and the plaintiff. She was anxious to get the matter settled. She asked for exclusivity in a telex of 21st May 1987. Corneliani again reacted favourably.

23. On the same day, 21st May 1987, they telexed to the defendant in the following terms :

"We confirm you that, starting from the Autumn/Winter 87 season, you will be granted the sole selling rights of the products carrying the 'Corneliani' trademark in Hong Kong.

Hoping to have satisfied your requests,

Best regards"

24. Meanwhile, as the relationship between Canali and Corneliani blossomed, the relationship between the plaintiff and Corneliani withered.

25. Mr Mauriello went to see Corneliani in July 1987; but it was too late. Corneliani had decided to give its business to Canali. Any hope Mr Mauriello or Mrs Mauriello may have had of getting Corneliani goods for the Autumn/Winter season 1987 had for all practical purposes disappeared. Mr Mauriello was furious. He placed no order and he refused to pay moneys due to Corneliani. He received a letter dated 15th July 1987 and another letter dated 24 September 1987 from Corneliani. I will read them. The letter of 15th July 1987 reads:

"Dear Mr Mauriello,

Consequent to recent meeting in our showroom in Milano with you and our Mr Sgarbi, I would like to express my extreme regret for what has happened and which is in contrast with our desire to maintain the cordial realtionship we have had since the beginning of working together.

In order to demonstrate to you our absolute good reason, and having acted in good faith, we feel we have to explain to you under which circumstances we were compelled to make certain decisions.

1) In January, you did not show up for the Pitti Uomo as usua

2) Subsequently and having asked for payments from our accounts department as we usually do for our clients in Italy and for overseas. You should asked us not to proceed with the delivery of the goods for spring/summer 87, as a result of an explanatory conversation between us.

3) On your demand, we have prepared selection of materials for your autumn/printer 17 order trying repeatedly but in vain to fix a meeting to settle the order.

Being the situation and specially due to the circumstances that in May 87, thinking of the possibility receiving an order from you for autumn/winter 87 was remote, our company thought to take necessary steps, also in your minor interest for our products. Consequently also due to the difficulties which foreign markets present not at least the United States of America with the inflation of the dollar and considered that it is absolutely necessary to maintain the presence in all possible markets, we accepted to examin requests which we have received since January 87 but which we ignored taking into consideration our lone relationship which we had to our mutual satisfaction so far.

We would like to stress that our position was based exclusively on the concrete facts and absolutely good faith and conviction that you would not honour your obligation towards ourself.

In such spirit of our cordial and true confidence which has always distinguished our contacts, we desire examine the possibility of a solution in order to continue, if this is in your interest, our business relationship, between our company.

With the hope to meet you in person, may be at your next visit to Italy for your summer holiday, I sent you my best wishes for your many successes even in a difficult sector as football, I convey sincerest regards."

26. The letter of 24th September 1987 reads as follows. (This is in reply to a letter of the 16th September 1987 of which receipt is acknowledged). It says:-

    "we cannot agree for the following reasons :-

- Mauriello (H K) Ltd. has been invited to order for the

Autumn/Winter 87 season since December 86 in anticipation of the forthcoming Pitti Uomo in January 87 in which Mrs Mauriello usually is in charge of concluding orders for the said company and should have met with our staff.

- Following a negative answer from Mauriello (H.K.) Ltd we were asked by the same to postpone the meeting until middle of February in our showroom in Milano.

- In the following correspondence per telex we asked to confirm the appointment in order to have everything necessary ready to concretise for the aquisition of the order without however having received from our client any answer. The meeting did not take place.

- In consequence and after we had in vain prepared a selection of materials for the Autumn/Winter order we repeatly asked for an appointment, but Mauriello (H.K.) Ltd. let us know on the 10.4.87 and the selling campaign already been closed that they are not able to fix an appointment we ask for. The following telephone conversations were without result.

- Only on the 9th of July 87 did Mr Mauriello meet our staff in Milano without however having asked to conclude any order for the Autumn/Minter 87 because anyway as they should have known that at such a date it would have been impossible to execute any order be it for the impossibility to provide material from the supplier or for the insufficient time for the production which the garments would have needed.

In the light of the chronical event documented through correspondence and numerious witnesses we can demonstrate that we absolutely acted with unambigious correctness towards our operation.

In regard to the exclusivity we verbally conceded to Mauriello (H.K.) Ltd from time to time like to all our other clients and in act of a single order or of any consequence to the absence of any order, it certainly could not have been valid.

We therefore reject to have any responsibility for any contract or relation to any commercial competitive activity and that the situation was created by the behaviour of Mauriello (H.K.) Ltd.

We would like to bring up to the attention that unitl today Mauriello (H.K.) Ltd owes us the amount of L60350500 for goods delivered for Spring/Summer 87 season under terms of payment which were amply expired and for which we are still waiting. Despite of the present situation, we are voluntarily available to meet with Mr Mauriello to examine a friendly solution of this situation which we are sure we can achieve considering our resiprocate esteem and friendship which we always had and which charactertised our relationship."

27. I have read those two letters because nothing I heard in evidence from Mr Mauriello seems to me to contradict their contents. Although they are of course expressed in fractured English, they seem to me to give the flavour of what had been happening between Corneliani on the one hand and the plaintiff on the other hand. I received no oral evidence from any representative of Corneliani; and that has made my task that much the more difficult. But, doing the best I can, I do, as I say, accept more or less what those letters contain as accurately reflecting the facts.

28. At the end of all this, the position as I see it was that the Coneliani goods prepared by Corneliani for the Hong Kong market in the Autumn/Winter season of 1987 had been given to Canali instead of to the plaintiff. Premises were found; and now the defendant is selling Corneliani goods at those premises.

29. Those are the facts as I find them.

30. This action is brought because the plaintiff has been, and still is, intensely suspicious of the honesty of the defendant in her conduct towards the plaintiff, both before and after the termination of her employment with the plaintiff. It is the plaintiff's belief, which I can well understand, that during her time with the plaintiff, the defendant was setting in train her plans to open her own shop and to steal the connection of the plaintiff, both with its supplier and with its customers.

31. There is no doubt that the court will look unfavourably on an employee who steals his employer's goodwill. If, during the currency of your employment, you use your position and your employer's time for your own benefit you cannot expect any sympathy from the court. Every employee owes to his employer a duty of fidelity. If, after your employment is terminated, you steal your employer's trade connection by under-hand and dishonest conduct such as, for example, by taking away with you lists of his customers or copies of his records, again you cannot expect any favouable treatment from the court. If, whether before or after the termination of your employment, you set about, knowing of your employer's contracts with other people, to induce those other people to break their contracts with your employer and to do business with you, then again you can expect no sympathy from the court. All these things are actionable wrongs and there will lie against you a remedy in damages. This is trite law; but so is the proposition that an employee who leaves an employer and enters into a business competing with his employer does not per se do anything wrong at all, no matter how damaging to the interests of the employer that course of conduct may prove to be. Every one is entitled to use or sell his or her own labour. The question in cases of this sort is whether anything the employee or ex-employee has done has been shown to be a dishonest abuse of his or her position as an employee.

32. It will inevitably be the case that an employer who loses a valuable and trusted employee will regret that. It will not always be the case, fortunately, that that employee has in fact done anything wrong. As in all these cases, the court has to inquire whether or not, on the facts of the particular case, the conduct of the employee has been shown to be dishonest.

33. In the present case, the plaintiff says in effect that the defendant has so behaved. This is a serious allegation and must be precisely pleaded an as precisely proved. If it is not, then of course the plaintiff cannot be entitled to anyrelief. I therefore turn to the Statement of Claim (which was drastically amended in November 1988) to see precisely what it is that is alleged against the defendant and to consider whether the plaintiff has succeeded in proving its allegations.

34. The first allegation made in the Statement of Claim is one with which have already dealt. It is an allegation that the defendant was under an obligation to give the plaintiff two months' notice to terminate the contract of employment. I have already held that there is insufficient proof to support this allegation. The next allegation with which I must deal is an allegation that by an oral contract made between the plaintiff and Corneliani in or about early 1978, Corneliani agreed to supply its fashion products exclusively in Hong Kong to the plaintiff. The proof of such a contract must be clear and unambiguous if it is to be held to exist. In my judgment there is again insufficient proof of the existence of any such contract (whether for an exclusive supply or not). I have already dealt with this point; and I will simply add that since the proof of the contract relies on a course of dealings between the plaintiff and Corneliani, it is difficult to see how this exclusive right could have been created in early 1978, as the pleading suggests. There was not any evidence to support the oral contract relied on in the pleading; and the course of dealings does not establish the exclusive supply contracton which the plaintiff relies. Indeed it does not go far enough to prove any contract at all, other than, as I have already said, such contracts as were constituted on each occasion when the plaintiff placed an order with Corneliani and Corneliani accepted it.

35. The next allegation made is that the defendant knew of the exclusive supply contract. Since, as I have held, there was no such contract, it follows that the defendant could not have known of it. The Statement of Claim continues with an allegation that the defendant, as boutique manageress of the plaintiff, travelled to Italy in or about January 1986 and July 1986 at the costs and expenses of the plaintiff to place purchase orders with Corneliani, knowing the placing of such purchase orders and all business contacts with Corneliani was for and on behalf of the plaintiff. It is true that the defendant travelled to Italy as boutique manageress of the plaintiff in or about January 1986 and July 1986. And I can understand that in the events which later happened, it might well have appeared to the plaintiff that the defendant abused this opportunity by attempting to get Corneliani's future supplies for her own venture. However, in the absence of evidence going beyond suspicions created the behaviour of the defendant, I am not prepared to find this allegation proved.

36. Next the plaintiff alleges that as boutique manageress of the plaintiff, the defendant had complete free access to lists of customers and related records compiled by the plaintiff. Particulars are given as follows :-

"The plaintiff kept detailed records of its customers including their names, addresses, telephone numbers, birthdays, sizes, their records of all past purchases including any special requirement. Such records were compiled by the plaintiff since about 1978 and accumulated throughout the years."

I find this allegation so far as it goes proved up to the hilt. There is no doubt that the defendant had such access to those records, asample of which I have seen.

37. The plaintiff continues in its statement of claim as follows:-

"All business contacts and/or dealings the defendant has with Corneliani and the plaintiff's lists of customers and related records referred to in paragrahp 6(b) above, are confidential information of the plaintiff (hereinafter collectively referred to as "confidential information") which confidential information are acquired by the defendant in the course of her employment with the plaintiff and could only be used by her solely for the purpose and benefit of the plaintiff's business and not otherwise."

38. And then again particulars of confidential information are given. There are the customer lists and related records already referred to; and I find that, in this respect, the plaintiff has proved its case. All these lists and related records are, in my opinion, confidential information kept by the plaintiff for the protection and development of its own trade connection and any attempt by the defendant to use such customer lists and related records would, in my judgment, be a breach of the duty of the defendant not to abuse her employer's confidential information.

39. The information sought to be protected also, however, includes :

"(b) The amount of orders including its detailed breakdown of styles and sizes;

(c) The time of placing of orders;

(d) The payment terms between the plaintiff and Corneliani;

(e) The special requirements in cutting for goods required by the plaintiff for the local market."

40. In my judgment, none of these has the character of confidential information. I bear in mind the recent judgment of the Court of Appeal in England in Faccenda Chicken v. Fowler [1986]3 WLR 288 and I find that with the exception of the customer lists and related records as I have already referred to, the rest of this material is not of the character which the court will protect. It is part of the general stock of skill, knowledge and experience of any employee gained in the course of his working in the employer's business.

41. There is no mention in anything I have read so far of the business cards to which I have briefly referred earlier in this judgment. I would not, I think, be unduly deterred by the absence of any reference in this pleading to the matter of the business cards if I had in the end decided that they were crucial to the case. I would have invited the plaintiff to amend this pleading so as to refer to them. Certainly the subject of the business cards was fully (no doubt, counsel may think, over-fully) canvassed during the course of evidence and argument. I do think the point is of some difficulty. Certainly the defendant took away with her the business cards which had been handed to her while she was in the course of her employment as manageress of the plaintiff's Borsalino boutique, but in the end I take the view that the information on the business cards is no more than a written statement by the customer of his own name and address. If you know the name of your employer's customers, you cannot deprive yourself of that knowledge when you leave him and you are entitled to canvass his customers as much as you like so long as you do not do so in a dishonest or underhand way so as to give yourself an unfair advantage; for example, by memorising his list of customers, or by taking copies of it and taking them away with you. I do not think, in the end, as I say, that a business card is a record of the employer in that sense. I am doubtful about the morality of taking away with you business cards left with you in your capacity as an employee, and I do think it is any answer to say that they were given to you personally. I believe they were given to the defendant here as an employee, not in a personal capacity. But I do not believe she had any dishonest intention in taking and keeping them nor in taking them away and I decline to find her guilty of the sort of underhand behaviour which the plaintiff would have to prove to succeed on this branch of this case if it had pleaded it. So for those reasons, I pay no further attention to the matter of the business cards.

42. Did the defendant take with her, either by deliberate memorising or by copying in some way the customers' lists and related records to which the Statement of Claim refers? The answer is that the evidence has not established that she did. Certainly, as I have said, she eventually opened a shop herself premises and I know, because the evidence established it, that she threw a party (as is often done) to promote the business as she was perfectly entitled to do and invited people to it. If, the plaintiff had proved, that the defendant had used the plaintiff's customers lists in order to prepare the invitations, to the party or otherwise circularised the plaintiff's customers, I would have taken a very dim view of the defendant's behaviour. But there is absolutely no evidence that she did do so. There is only evidence of the deeply held suspicions of Mr Mauriello and Mrs Mauriello that that is what must have happened. To convict the defendant of dishonest behaviour based on suspicions with really no evidence, other than the inference I am invited to draw from what she did do, I absolutely decline to do There is no substance in the plaintiff's case that the defendant took away with its customers list and related records because there is no proof that she did anything of the kind. I do not forget the considerable use that the defendant was said to have made of the plaintiff's photocopier, but the defendant had used the photocopier on the plaintiff's business and not for purposes of her own.

43. I do not forget either that the company Canal Limited was incorporated by the defendant, in early 1986 while she was still employed by the plaintiff. That itself is not an actionable wrong and there is no evidence that during the course of her employment with the plaintiff she misused Canali in any way so as to break any obligation which she owed to the plaintiff. Again, if there had been some evidence that the defendant had channelled some of the goodwill of the plaintiff's business to Canali Limited during the course of her employment, I would unhesitatingly have held that there was a breach of her fiduciary duty to the plaintiff; but there is no such evidence.

44. The allegation that the defendant was guilty of inducing a breach of contract between Corneliani and the plaintiff fails on the grounds that the contract was never proved; that there was no proof of any knowledge of any such contract on the part of the defendant; and no proof of any intention on the part of the defendant to break any such contract as there was. I accept what the defendant says, which is to the effect that she thought that the Borsalino boutique business was going to be in difficulties; that there would be no outlet for Corneliani in Hong Kong for the Autumn/Winter season; and that she might chance her arm with Canali and see if Corneliani would give Canali the business. She succeeded. That is not in itself something which gives the plaintiff any cause for complaint.

45. I have, I think, now dealt with all the allegations made by the plaintiff against the defendant in this action. For the reasons I have endeavoured to state, I. cannot find that any of them have been proved. The result is that this action must he dismissed. [The judge dismissed the action with costs.]