“… the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva Ltd[1997] RPC 1 : “The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation”.”
“The principle is well settled that where there has been no misdirection on an issue of fact by the trial judge the presumption is that his conclusion on issues of fact is correct. The Court of Appeal will only reverse the trial judge on an issue of fact when it is convinced that his view is wrong. In such a case, if the Court of Appeal is left in doubt as to the correctness of the conclusion, it will not disturb it.”
“5. Confidentiality a. For the purposes of this Article, 'Information' will mean IP materials, Prototype Materials, software, drawings, electronic data, product or program descriptions, layouts and renderings, timing and planning schedules, records, papers, print-out, designs, sketches, model parts, samples, parts, components and systems, cars, models or prototypes, procedures, specifications and standards, visual or audio-visual media and any other type of information on whatever media including, without limitation, business for operational secrets, methods or inventions. b. AEROLAB will maintain, and will procure that each of its employees, agents and subcontractors will maintain the confidentiality of, and avoid any disclosure to any third party of any of the Information which AEROLAB has obtained or gathered from FORCE INDIA or has created or developed as part of the performance of the work under this Agreement, unless prior written approval has been obtained from FORCE INDIA. All AEROLAB employees, representatives or advisers have signed a Confidentiality Agreement (see Appendix of the Agreement). c. Such Information will be used exclusively for the work conducted under this Agreement. It will be made accessible to the personnel of and subcontractors of AEROLAB only insofar as required for such purposes. Any subcontractors who gain access to such confidential information shall be subject to the same terms and conditions concerning confidentiality as AEROLAB to this Agreement. d. Having obtained written consent from FORCE INDIA to disclose certain limited information to a specified third party for a clearly defined purpose, the Information may be disclosed only after receipt of written confirmation from such third party that it will avoid further disclosure to any other third party and will use the Information only for such defined purpose and in accordance with the terms of this article. e. The obligation of non-disclosure in this article is not applicable to Information: *which is in the public domain other than by breach of this Article 4 or any other obligation of confidentiality; or *which is made available AEROLAB by a third party who was not subject to an obligation of non-disclosure in respect of such Information and other than by violation of this Article or any other obligation of confidentiality; or *of which AEROLAB was free to disclose and which that AEROLAB can prove was already in its possession prior to its disclosure by FORCE INDIA and prior to the date hereof of the effective date of any previous outstanding obligation of confidentiality with FORCE INDIA; or *which is independently developed in good faith by employees of AEROLAB, such employees having had no access to such information. f. Neither AEROLAB nor its subcontractors will derive rights from any such information received from the other. g. Upon request from FORCE INDIA, AEROLAB and its subcontractors will forthwith (at the option of FORCE INDIA) deliver up to FORCE INDIA or destroy all Information received under this Agreement and any other property of the other in their possession or control (including in each case transcriptions, copies, records and further developments thereof) (together hereinafter called 'Products') at any time such a request has been received, and automatically after the termination of the Agreement. If and to the extent FORCE INDIA requests AEROLAB and its subcontractors to destroy or have destroyed the Products then forthwith following destruction, AEROLAB will certify that all such Products have been destroyed and evidence of compliance therewith will be provided to FORCE INDIA on request. h. AEROLAB will take reasonable steps to provide secure working areas in which to undertake the Services for FORCE INDIA and in particular restrict access to such areas only to such employees or representatives of AEROLAB for whom it is necessary to have access. Visitors can only be allowed access to such areas with the express permission of FORCE INDIA. No person connected or associated in any way with any competitor of FORCE INDIA shall be permitted access to this area or to view the wind tunnel facilities generally whilst AEROLAB is working for FORCE INDIA Services.”
“a. During the term of this Agreement, neither AEROLAB as an entity nor individual employees of AEROLAB will participate in any way in services of which the subject is the aerodynamic development of Formula 1 racing cars for customers other than FORCE INDIA. b. However, AEROLAB is not prevented by this Agreement from making its wind tunnel available to third parties involved in Formula 1 for the performance of tests, provided that AEROLAB restricts its contribution to provision of the wind tunnel and the staff necessary for operation of the same and, in particular, does not give any assistance and advice with performance or evaluation of tests.”
“a. Either party shall be entitled to terminate this agreement forthwith upon the giving of written notice to the other in the event that the other shall have committed a serious or persistent breach of the terms of this agreement and (if such break shall be capable of remedy) shall have failed to remedy the same within 2 weeks of the service of written notice specifying details of the breach complained of. b. If delivered by recorded delivery or similar system, the time of receipt shall be evidenced, if necessary, by production of the proof of delivery of the postal service and otherwise shall be deemed to have occurred no later than 2 days after dispatch (5 days if sent by air mail). c. On termination of the Agreement the provisions of clause 5.g must be complied with as soon as practically possible.”
“[4] I accept that the customers feel that the information that may become available to me is of significant importance to them, and a separate agreement on confidentiality of information is required. This agreement will survive my employment with AEROLAB and/or AEROLAB's agreement with the customers for a period of two years. [5] I understand that in the case of my employment with AEROLAB being terminated for reasons outside my control and I feel that this agreement restricts my ability to find alternative employment I can write to AEROLAB requesting a written release of all or part of this agreement, and AEROLAB will not unreasonably withhold such release. [6] I undertake to keep information entrusted to me or discovered by me in the course of my work on the customers projects and/or providing services to the customers in complete confidence and I will not use or attempt to use the information in any manner except for the purposes for which it shall have been disclosed. I will not disclose or transmit any of the information to any person other than those persons within AEROLAB to whom it is strictly necessary to the purposes of the performance of the Services. [7] I understand that the requirement to keep information confidential will cease once it becomes publicly available or I receive it from another source without a duty of confidentiality. I undertake to check out as far as practically possible whether receiving such information would be a breach of confidentiality.”
“No communication has been passed between the parties, and Aerolab has not received any payment of the amount due, which, with August's monthly payment, amounts to€1,074,730.00 .”
“As you are aware, our client will not be requiring your services for the remainder of the contract. We are aware from press reports that your sister company, FondTech, has agreed to carry out aerodynamic work for the new Lotus F1 team.”
“… were the product of a considerable degree of skill and labour; they comprised valuable information; they were not in the public domain; they were protected by express contractual obligations of confidence, including obligations directly affecting Aerolab's employees; there was a great deal of evidence that such information was regarded in F1 as highly confidential and that it was well known that there were severe penalties for misusing it; and the information was generally separable from the employees' skill, knowledge and experience, even if some individual dimensions were memorable and could be regarded as forming part of the employees' skill, knowledge and experience.”
“In summary, Aerolab’s aerodynamicists and CAD draftsmen had access to all the Force India CAD files until19 August 2009 . Even after that, there was some degree of access on the part of at least some of the aerodynamicists and CAD draftsmen.”
“Aerolab contends that, if it continues after termination, clause 5(b) is only enforceable in so far as it applies to trade secrets, arguing in short that the principles developed in relation to employees apply equally to a contractor in the position of Aerolab. Force India disputes this. Since essentially the same dispute arises with regard to the scope of the equitable obligation of confidence which it is common ground bound FondTech, I shall deal with this issue in that context.”
“The key question for present purposes is the impact of the doctrine of restraint of trade on the enforceability of covenants against the use of confidential information by employees after their employment has ended.”
“Aerolab's employees could not be prevented from using information which had become part of their skill, knowledge and experience, even if it was learnt during the course of their work for Force India, when working for Lotus, as opposed to trade secrets. In support of this submission, he pointed out that, if Aerolab's employees had left Aerolab's employment on1 August 2009 and joined a new employer, they could not have been prevented from putting their skill, knowledge and experience at the disposal of the new employer. He argued that it made no difference that they remained employed by Aerolab.”
“… when I use the word “information”, I mean something that can be traced to a particular source and not something which has become so completely merged in the mind of the person informed that it is impossible to say from what precise quarter he derived the information which led to the knowledge that he is found to possess.”
“It is of the essence of the claimant's right to confidentiality that he can choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the protection of the confidence. It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy.”
“What the defendants did in this case was to dispense in certain material respects with the necessity of going through the process which had been gone through in compiling these drawings, and thereby to save themselves a great deal of labour and calculation and careful draughtsmanship. No doubt, if they had taken the finished article, namely, the leather punch, which they might have bought in a shop, and given it to an expert draughtsman, that draughtsman could have produced the necessary drawings for the manufacture of machine tools required for making that particular finished article. In at any rate a very material respect they saved themselves that trouble by obtaining the necessary information either from the original drawings or from the tools made in accordance with them. That, in my opinion, was a breach of confidence.”
“When the information is mixed, being partly public and partly private, then the recipient must take special care to use only the material which is in the public domain. He should go to the public source and get it: or, at any rate, not be in a better position than if he had gone to the public source. He should not get a start over others by using the information which he received in confidence. At any rate, he should not get a start without paying for it. It may not be a case for injunction or even for an account, but only for damages, depending on the worth of the confidential information to him in saving him time and trouble.”
“… Mr Chambers knew every stage in the actual production of the Mark 24 unit … and accordingly his mind must have been saturated with every detail of its design, features and methods of construction; and if his mind was so saturated from observing the work in progress on the manufacture of Mark 24 buildings, obviously that information was either directly or indirectly derived from the original confidential communications made by the plaintiffs to the first defendants. Moreover, upon what were Mr Chambers’ first efforts now directed? – to improve the floor of the Mark 24; not to make some new building unit. If, therefore, his mind was not already saturated with the Mark 24, his efforts to improve it must assuredly have completed that process. There is no better way of really understanding something [than] to try and improve it, and if you produce a different result it is absurd to say that you made no use of the thing which you set out to improve.”
“… information is none the less used if it serves as a starting point for a new design, because in the end the design wholly or partially discards the information from which it was originally built up.”
“We are also starting from the current level of Force India due to the historical knowledge, not starting as a new team.”
“Introduction 1. The starting aerodynamic configuration must reflect, to the extent possible, a recognised structure that can be drawn quickly, without any need at this level to develop new shapes. The design of the internal structure can, however, take into account the direction that aerodynamic development is to take as soon possible (see RIS v diffuser). 2. Guidelines are (JCM) to invent as little as possible, unless time and costs dictate otherwise. Therefore use the previous F1 model as much as possible where design work is concerned.”
“253. The Force India 2009 model consisted of around 370 parts, of which about 203 were aerodynamic parts and the remainder mechanical parts. Force India alleges copying of 71 designs. Of these 57 are designs or precursors of designs for wind tunnel model parts and 14 are assemblies or combinations of individual model part designs. Of the 57 individual model part designs, 36 are for aerodynamic components, the full size equivalents of 25 of which were visible on the Force India F1 car during the 2009 season. The remaining 21 out of 57 are mechanical wind tunnel model parts which have no equivalent in a full size car. 254. Of the 36 aerodynamic designs: i) nine are front wing parts; ii) 12 are wheel barrel and brake duct parts; iii) four are rear diffuser parts; iv) two are rear wing parts; v) nine are miscellaneous development parts which never made it onto the Force India racing car.”
“267. In my view it is important to distinguish for this purpose between what the Aerolab/FondTech CAD draftsmen did and what the aerodynamicists did. As will become clear below, I consider that a number of the initial Lotus model parts were drawn by a process which involved misuse of confidential information, since it involved the CAD draftsmen using the Force India CAD files to take a short cut; but it does not necessarily follow that the aerodynamicists misused any Force India confidential information in creating the designs of those parts. It is when one comes to consider the latter point that it becomes crucial to identify the precise dimensions alleged to have been confidential and to have been misused by the aerodynamicists. As will also become clear, in this context I agree with counsel for the Corporate Defendants that Force India's case is lacking in particularity. 268. In so far as the CAD draftsmen used Force India CAD files to take a short cut, then I consider that they misused confidential information akin to a trade secret.”
“This is a convenient juncture at which to consider Force India's case that the use made by Aerolab and FondTech of Force India's CAD files amounted to systematic copying of key parts of the Force India car, and in particular systematic copying of the aerodynamically significant parts. … In my view Force India has come nowhere near establishing that this was the case. On the contrary, such misuse as I have found to have occurred mainly consisted of opportunistic copying of CAD files by CAD draftsmen in order to take a short cut.”
“Mr Phillips' own evidence was that "the aerodynamic system of a car works as a whole, so it is unlikely that a part from one car will be aerodynamically compatible with another car". The evidence of Dr Hurst and Mr Dernie showed that, if anything, this was an understatement. As the experts agreed, the complex airflows achieved beneath, above and around a F1 car are dependent on the precise arrangement of the components in relation to each other and in relation to the road surface. They may also be affected by very small design changes, particularly of aerodynamic surfaces. When one compares the critical components in the initial Aerolab wind tunnel model with the Force India components relied on, Dr Hurst accepted that the aerodynamic system was quite different. Mr Dernie's evidence was very clear on this point.”
“In argument before the Board Norbrook accepted that the burden of proving a breach of the secrecy agreement lay on it, as in any other case where a party seeks to establish a breach of contract. In such a case the legal burden of proof lies on the plaintiff and never shifts. But if the plaintiff adduces evidence from which, in the absence of any adequate explanation or answer, an inference of breach may properly be drawn, an evidential or provisional burden falls on the defendant, as explained by Lord Denning in Brown v Rolls Royce Ltd[1960] 1 WLR 210 . Thus if A entrusts B in confidence with secret proprietary information not publicly available, and B is precluded by contract from using that information for its own purposes, and the relationship between them ends, and B puts on the market a product which could not ordinarily be made without using A's secret information, a claim by A for breach of contract is likely to succeed unless B shows that it obtained the information from another legitimate source, or as a result of independent research, or in some other manner not involving misuse of A's information. This is an approach to decision-making which depends not on abstruse legal doctrine but on the application of common sense.”
“It is, however, an approach which has little bearing on a case such as the present in which discovery has been given and evidence heard at length on both sides. The question then is whether, in the light of all that evidence, the plaintiff has proved its case on the balance of probabilities…”
“The Defendants contend that the subject matter of the negotiation would be the actual confidential information found to have been misused by Aerolab/FondTech. Force India contends that the subject matter would be the entire aerodynamic design of the Force India car. The basis for the latter contention is that Aerolab and FondTech had (almost) all of the aerodynamic design of the Force India car available to them to use as a reference, even if they only used a small proportion. I reject that contention, since it would mean that Aerolab/FondTech would pay the same licence fee regardless of the extent of the misuse. This is contrary to principle, authority and basic fairness.”
“The value of the confidential information depends on the nature of it. If there was nothing very special about it, that is, if it involved no particular inventive step, but was the sort of information which could be obtained by employing any competent consultant, then the value of it was the fee which a consultant would charge for it: because in that case the defendants, by taking the information, would only have saved themselves the time and trouble of employing a consultant. But, on the other hand, if the information was something special, as, for instance, if it involved an inventive step or something so unusual that it could not be obtained by just going to a consultant, then the value of it is much higher. It is not merely a consultant's fee, but the price which a willing buyer — desirous of obtaining it — would pay for it. It is the value as between a willing seller and a willing buyer…. [I]f … the confidential information was very special indeed, then it may well be right for the value to be assessed on the footing that in the usual way it would be remunerated by a royalty. The court, of course, cannot give a royalty by way of damages. But it could give an equivalent by a calculation based on a capitalisation of a royalty. Thus it could arrive at a lump sum. Once a lump sum is assessed and paid, then the confidential information would belong to the defendants in the same way as if they had bought and paid for it by an agreement of sale.”
“In a case such as Wrotham Park, the law gives effect to the instinctive reaction that, whether or not the appellant would have been better off if the wrong had not been committed, the wrongdoer ought not to gain an advantage for free and should make some reasonable recompense. In such a context it is natural to pay regard to any profit made by the wrongdoer (although a wrongdoer surely cannot always rely on avoiding having to make reasonable recompense by showing that despite his wrong he failed, perhaps simply due to his own incompetence to make any profit). The law can in such cases act either by ordering payment over of a percentage of any profit, or, in some cases, by taking the cost which the wrongdoer would have had to incur to obtain (if feasible) equivalent benefit from another source.”
“I fully accept that any ability on the part of a trespasser to achieve the object of the trespass by alternative means is a factor which must be taken into account in the hypothetical negotiation. The alternative must, however, be one which is consistent with the trespass and which can co-exist with it. An alternative cannot be taken into account if it would eliminate the trespass itself, because that would again negate the very basis of the exercise. In Sinclair v Gavaghan there was no conceptual difficulty about taking into account the alternative means of access to the Yellow Land which were available to the defendants, because they were true alternatives to the more convenient route through the Red Triangle, and the defendants could therefore pray them in aid when notionally negotiating a fee for use of the Red Triangle access. By contrast, what the defendants wish to do in the present case is to rely on the possibility of placing the hoarding entirely within No. 67, not as an alternative to the admitted trespass, but as a means of eliminating it. Such a procedure cannot be legitimate, because it would subvert the basis of the negotiation.”
“‘Neutral’ means that you do not have a current engagement or one expected in the short term with either Force India, or Lotus … or eventually (?) with Mike Gascoyne personally.”