Who am I?

I am a 28 year old from China, working as a Marketing Manager in the oriental food industry and living and working in London with my wife and pet dog. I currently work for Kung Fu, who are now one the leading wholesaler of oriental food in the UK.

Since 2018, I have faced aggressive High Court litigation brought by my former employer, FreshAsia Foods Limited (“FreshAsia”), in their attempt to have my new employment with Kung Fu terminated.

My case

Just before the 2018 Christmas break, I faced an urgent interim injunction brought by my employer, FreshAsia seeking to (amongst other things) force me to terminate my new employer.

FreshAsia relied upon a broad restrictive covenant in my employment contract, which sought to prevent me from working for a competitor, in the first instance for a period of 10 years, then latterly for a one-year period. 

In my view, since FreshAsia pay very low rates, if such a contractual term were to be enforceable, I and other FreshAsia employees would be trapped into working into them forever. It is a form of modern day slavery!

With student debts and a mortgage to pay, quitting my job was simply not an option. As such, I instructed Virtuoso Legal, leading London Intellectual Property lawyers, to oppose the interim injunction and achieve the key objective; to defend my right to work.

On 18 December 2018, the week before Christmas when most people are making last minute preparations for the festive period, we defended my right to work at my new employer. Thankfully, the next day, the judge for hearing, Mr. Daniel Alexander QC, gave his decision which retained my right to maintain my new employment. 

Despite losing at this stage, FreshAsia pursued the claim all the way to trial. I even offered to agree to a 12 month non-solicitation term, which was not enough for FreshAsia.

On 20 March 2019, following a three day trial, we obtained the judgment of Mr Justice Arnold and, in short, I had successfully defended FreshAsia’s substantive claims. You can read a summary of the decision at the bottom of this page

Legal costs - Who should pay?

Following the judgment, we attended a hearing in relation to legal costs.

The team at Virtuoso Legal then argued that FreshAsia should pay my costs on the “indemnity basis”, rather than the standard basis, which was accepted by Mr Justice Arnold. In making that decision, the judge stated that it had been unreasonable for FreshAsia to take this case to trial despite the weaknesses, which had been pointed out by an earlier judicial decision from Daniel Alexander QC and that my reasonable offer of settlement was was not accepted by FreshAsia.

The court ordered that FreshAsia make an interim payment of 70% of incurred costs, which amounted to over £100,000, with the remaining £65,000 to be agreed or assessed. Ultimately, we agreed that FreshAsia would pay a further £40,000.

Why am I raising funds now?

This means that I am £25,000 out of pocket as a result of this case and I hope that I can raise these sums to pay any outstanding sums to my excellent lawyers.

Please support me by making a donation and sharing my page with friends and family via email or social media.

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Summary of Decision

In summary of Mr Justice Arnold’s conclusions:

1. In relation to the non-compete clause, Freshasia did not have “legitimate business interesting requiring protection” in order to justify the enforcement of their non-compete clause, as “Mr Jing’s contact with customers was minimal”, Freshasia’s confidential information was already protected by separate covenants and any trade secrets were protected by equitable obligation of confidence. The information in Freshasia’s Protected Documents was very detailed and would be difficult for me to recall without the documents themselves. In addition, “the clause is also too wide in that it would stop Mr Jing from being employed by a competitor to Freshasia in a non-marketing role” as, for example, it would have even stopped me working as a production manager for a competitor. Further, even the period of 12 months was too long. In the circumstances, Freshasia’s attempts to rely upon their non-compete clause was dismissed.
   
   
2. In relation to the non-solicitation clauses, Mr Justice Arnold was again “not satisfied that Freshasia had legitimate business interests requiring protection”, as for example this would have prevented me from even “designing a promotional poster which someone else at [his new employer] used to solicit custom”. In the circumstances, Freshasia’s attempts to rely upon their non-solicitation clause was rejected by the court. As such, Freshasia’s claim to enforce the non-solicitation clause was dismissed.
   
   
3. The court found that I was contractually obliged to “deliver up any electronic copies of any Protected Documents he had in his control and then to delete them”, although I was “only required to deliver up copies of documents that Freshasia did not already have”. Since I did not do so immediately upon termination, Mr Justice Arnold concluded that “Mr Jing did breach [his contract] by failing to delete at least 17 Protected Documents until 30 November 2018”, but was “not persuaded that he retained any Protected Documents after 30 November 2018” as “Freshasia could have instructed a suitable expert to inspect Mr Jing’s laptop for evidence of such retention, but it did not do so. Mr Jing’s willingness to permit this indicates that he had nothing to hide”.
   
   
4. The court found that “Mr Jing’s retention of copies of Protected Documents did not amount to use, or therefore misuse, of the confidential information contained therein. At most it amounted to a threat to do so”. In addition, that there was “no direct evidence that Mr Jing has misused any confidential information contained in any of Protected Documents since his departure from Freshasia, let alone that he threatens or intends to do so in the future. Freshasia contends that this should be inferred from various factors. Having regard to my findings of fact, I consider that there is no basis for any such inference”. As such, Freshasia’s claim in relation to misuse was dismissed.
   
   
5. In relation to alleged copyright infringement, the court concluded that “there is no evidence that Mr Jing accessed copies of Protected Documents on his personal Google Drive, between 28 September 2018 and 30 November 2018, nor is this to be inferred. He did so on 30 November 2018 for the purpose of copying files onto the USB sticks, but that was done with Freshasia’s consent. There is no evidence that Mr Jing has accessed copies of Protected Documents on his personal Google Drive since 30 November 2018, nor is this to be inferred. Accordingly, this claim is dismissed”.