“in respect of the proportions of the oil and of the infusion ingredients, within a range of ±5% of the figures stated … , [detail redacted]”
“The process is as follows: - [detail redacted] - [detail redacted] - [detail redacted] - [detail redacted] - [detail redacted] - [detail redacted]”
“I have attached a spec (which doesn’t give away much)”
“I have now looked at the information supplied and I think without exception all suppliers are relying upon [detail redacted]”
“I have … just searched for [detail redacted] in the central technical files on Springthyme, and found the attached from a 2004 audit …. This backs up what Bridgette [Clarke] is requesting. Charlotte – do you know if Joanne Swales has anything similar but from a more recent Springthyme audit?”
“Clarification of infused basil oil. [Detail redacted] ”
“[detail redacted] ….”
“[Detail redacted] but it may be worth a shot if you can overcome this issue.”
“We are going to have a go at making some Chilli Infused Oil in the NPD [i.e. new product development] Kitchen next week to understand if we can use the same process as the Basil Oil as the Kerry process tree is very different. I’ve had a good look through the spec but it doesn’t give any indication of chilli type (it just says red chillis) and percentage as an ingredient.”
“Sorry Nick no. Adam uses this at Caledonian [i.e. a Bakkavor site] and is checking if they have any more information on file than I do.”
“I can fill this gap – I looked out some old notes from a visit and they had been producing chilli oil when I was there. [Detail redacted] I’d noted that because they were using a supplier that we also use.”
“Nick – it might be worth me asking for all copies we have on file of the lemon, garlic and chilli around the group (current and out of date versions). The data on recipe is a section that Springthyme/Kerry intentionally leave blank for %ages, but they made the mistake of including it on one copy of the basil spec I had which is how we got to the original recipe. Quickly pouring over any other copies that exist might save you some time. I’ll put a note out.”
“Incidentally I have an interesting piece of information that has come to light regarding the Chilli Oil which is a recent spec that has been issued by Kerry showing the use of [detail redacted] and also uses the same process as Basil. So we may use the same for garlic also. It’s beginning to look like we only need one process after all.”
“Given our discussions on IP on infused oils, and the problems I have with my laptop deleting files randomly, attached in the screenshot I took of the Springthyme website showing the process information in the public domain so you have it on file too!”
“Also need to talk to you about infused oils. I’m still concerned that [detail redacted] is not under complete control. From the info that was sent, [detail redacted]”
“Despite all the information and work completed so far No product we made is guaranteed as safe to risks of [detail redacted]”
“ensuring Bakkavor’s compliance with food legislation and regulations in respect of ingredients purchased by Bakkavor from suppliers (including the claimant, Kerry), and in respect of Bakkavor products into which those ingredients are incorporated and which we sell to retailers”
“In order to do this, I obtain technical and food safety information from suppliers concerning ingredients purchased. This includes microbial data, processing information and HACCP … to establish what makes the material safe for further risk assessment work, as well as recipe information to assist in creating the labelling for the end product as per retail requirements and food labelling legislation. This information is provided in the form of a technical specification. We are then able to perform food safety risk assessments on any ingredients coming onto a Bakkavor site, to ensure that we understand a product’s safety parameters and the ‘critical control points’ (CCPs) we need to use for that particular product. We need to be comfortable that all products supplied are safe and that adequate measures are in place to guarantee the safety and integrity of the production process from ‘field to fork’. Many of these products are sold on to other Bakkavor sites to be incorporated into their products for onward sale to retailers.”
“Just as Bakkavor must be comfortable that ingredients and products are safe, so too must retailers. As part of my role I am therefore obliged to pass information on to retailers, as required by them for their own risk assessments, food safety legislation compliance and traceability reasons.”
“Another way in which we commonly satisfy ourselves of the safety of the processes being implemented by our suppliers would be to carry out an on-site technical audit …. We would then use the information collated from an audit to prepare a Supplier Audit Report, which would be used as a point of reference …. Reports of this kind are commonly shared amongst groups of customers, as this saves the need for every customer to carry out the same audit process, as well as easing the burden on suppliers such as SpringThyme.”
“First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
“As Lord Greene said in the Saltman case at page 215 ‘something which is public property and public knowledge’ cannot per se provide any foundation for proceedings for breach of confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge. But this must not be taken too far. Something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. Novelty depends on the thing itself, and not upon the quality of its constituent parts. Indeed, often the more striking the novelty, the more commonplace its components. [Counsel for the plaintiff] demurs to the concept that some degree of originality is requisite. But whether it is described as originality or novelty or ingenuity or otherwise, I think there must be some product of the human brain which suffices to confer a confidential nature upon the information: and, expressed in those terms, I think that [counsel for the plaintiff] accepts the concept.”
“Information which has entered the public domain is not subject to confidentiality. But all that means is that there may be circumstances in which the information is so generally accessible that, in the circumstances, it cannot be regarded as confidential: see Att.-Gen. v Guardian Newspapers (No 2)[1990] 1 AC 109 at 281, per Lord Goff of Chieveley. So the fact that information may be known to a limited number of members of the public does not of itself prevent it having and retaining the character of confidentiality, or even that it has previously been very widely available….”
“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.”
“No doubt a time may come when information is generally available for the public. But the mere publication of an article by manufacturing it and placing it upon the market, whether by means of work done in it or calculation or measurement which would enable information to be gained, is not necessarily sufficient to make such information available to the public. The question in each case is: Is such information available to the public? It is not, in my view, if work would have to be done upon it to make it available.”
“[N]ormally if one finds an employee or ex-employee using unpublished formulae to the detriment of his former employer it is an open and shut case. Cross J, for instance, specifically instanced to a specifically remembered chemical formula as subject of protection (Printers & Finishers v Holloway[1965] RPC 239 at p.255). Indeed before I heard the evidence I thought this was going to be such a case. And the well-established rule of thumb used to test whether information is to be regarded as confidential — ‘given for one purpose, not to be used for another’ — seemed well in point. But the more I heard the evidence the more I became satisfied that the information here, in the hands of the ex-Borden team, could not be regarded as confidential. So much was published, so much was second nature to the team, so much of the recipes were not critical and were so easy to reverse engineer, that a man of conscience would not say ‘here is a specific trade secret which I may not use.’”
“In cases concerning design drawings … , much will depend on the level of generality of the information asserted to be confidential. If the claimant contends that information relating to the shape and configuration of the article depicted in the drawings is confidential, but the shape and configuration of the article can readily be ascertained from inspection of examples of the article which have been sold or are otherwise publicly accessible, then the claim will fail. If, on the other hand, the claimant contends that detailed dimensions, tolerances and manufacturing information recorded in the drawings are confidential, that information cannot readily be ascertained from inspection, but only by a process of reverse engineering and the defendant has used the drawings as a short cut rather than taking the time and effort to reverse engineer, then the claim will succeed.”
“It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence. In particular, where information of commercial or industrial value is given on a business-like basis and with some avowed common object in mind, such as a joint venture or the manufacture of articles by one party for the other, I would regard the recipient as carrying a heavy burden if he seeks to repel a contention that he was bound by an obligation of confidence: see the Saltman case at page 216.”
“I find as a fact, without hesitation, that there was a contract; but, contract or no contract, the Defendants got those drawings into their hands knowing, or knowing shortly afterwards, that they belonged to Saltmans, that they were obviously confidential matter, and they knew that they had got them into their hands for a strictly limited purpose. How on that basis they could say that the fact that there was no contract released them from any obligation of confidence I do not know ….”
“In this edition, … we depart from the ‘limited purpose’ test as the preferred basis upon which equitable duties of confidence are imposed in favour of a ‘notice of confidentiality’ test. This test asks itself whether the circumstances in which the information was acquired or received indicate (objective) knowledge or notice of the confidentiality of the information. The factors that may be relevant to establishing knowledge or notice of confidentiality include: the nature of the information (whether it is banal, trivial, commercially valuable, or intimately personal); the steps taken to preserve or emphasize the secrecy of the information (eg whether it is marked ‘confidential’ or ‘private’; or if special care is taken that there is a restricted disclosure to others); the manner in which the information was disclosed or obtained (eg at a business meeting rather than a social occasion); the understanding of the parties involved; and where the information is disclosed for a specific, limited purpose and it is understood, from the legal and cultural context of the disclosure, that the information will not be used for another purpose. In other words, the ‘limited purpose’ of the disclosure is a factor to be considered as part of the ‘notice of confidentiality’ test.”
“An equitable obligation of confidence will arise as a result of the acquisition or receipt of confidential information if, but only if, the acquirer or recipient either knows or has notice (objectively assessed by reference to a reasonable person standing in his shoes) that the information is confidential.”
“75 The reach of the obligation of confidence is shown by Terrapin Ltd v Builders Supply Company (Hayes) Ltd …. In that case the plaintiff contracted the first defendant to manufacture prefabricated portable buildings to the plaintiff’s designs, and in particular a design referred to as the Mark 24. The plaintiff disclosed to the first defendant all the drawings, specifications, technical information and know-how needed to make the Mark 24 in confidence and solely for the purpose of the contract. Subsequently the plaintiff also disclosed to the first defendant in confidence proposals for a new and improved design featuring a flat roof and a stressed skin construction, later referred to as the Mark 36, which the plaintiff originally proposed to make itself, but later suggested that the first defendant should manufacture. Subsequently negotiations between the parties for a renewal of the contract broke down, and it expired. Four months after the end of the contract the defendants launched a portable building called the Swiftplan with a flat roof and stressed skin construction, the design of which it had commenced during the currency of the contract. They said that the Swiftplan had been designed by their works manager, Mr Chambers. Roxburgh J. said at p.390: ‘…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.’ 76 On the same page Roxburgh J. added: ‘…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.’” ‘…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.’”
“in the absence of specific discretionary reasons for the refusal of an injunction, where the claimant has established that the defendant has acted in breach of an equitable obligation of confidence and that there is a sufficient risk of repetition, the claimant is generally entitled to an injunction save in exceptional circumstances. In deciding whether there are exceptional circumstances which justify the refusal of an injunction, the approach laid down in Shelfer is applicable, if not directly then by analogy.”
“Many Judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that — (1.) If the injury to the plaintiff’s legal rights is small, (2.) And is one which is capable of being estimated in money, (3.) And is one which can be adequately compensated by a small money payment, (4.) And the case is one in which it would be oppressive to the defendant to grant an injunction:— then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff's rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff’s legal right to light to a window in a cottage represented by£15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the Plaintiff is certainly not small, nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment.”
“In this case, even if (contrary to my opinion) the information should be regarded as confidential I am quite satisfied that its worth is low, that the ‘time and trouble’ saved was of the order of a few days or perhaps at most a couple of weeks in the case of one or two resins. Given [the first defendant’s] slow entry into the market (only a few customers in the first three months) this was insignificant.”
“an injunction can be granted to restrain the defendant from continuing to misuse the confidential information. The duration of the injunction should be limited, however, to the time it would take someone starting from public domain sources to reverse engineer or compile the information. This reflects the limited degree of confidentiality that is being enforced. In my view, this principle extends more widely: even technical trade secrets can have a limited ‘shelf-life’, such that the information may be expected to come into the public domain after (say) five or 10 years.”
“i) the purpose of an injunction to restrain disclosure or use of confidential information is to prevent further disclosure or use of the confidential information in the future; ii) where a product embodies or discloses confidential information, or is manufactured using confidential information, then an injunction to restrain use of the confidential information will automatically restrain the continued manufacture and sale of the product; iii) an injunction may also be granted to restrain the manufacture or sale of a derived product where the manufacture of it represents a continued use of the information having regard to the extent and importance of the use of the information; iv) otherwise, the appropriate remedy in respect of the manufacture and sale of products derived from a past misuse of confidential information is a financial one.”
“If someone had unlimited resources and time they may well come up with a similar process flow and HACCPto that used by Kerry. However, the ifs and buts could take years to test and reject before stumbling on Kerry’s precise combination.”
“Safety criteria for [detail redacted]in foods include: for elimination; filtration and thermal treatment, for inhibition: water availability (often through the use of salt or sugar), thermal treatment (where spores survive), acidity, and chilling. Where spores survive thermal treatment, an additional control or hurdle is needed for their suppression. The critical limits for these strategies individually are established in the food industry and available in the public domain. Professor Berryman refers to these as ‘the basic tools’ and I agree that the existence of these basic tools is not confidential. I reiterate my points … that [detail redacted] and that ‘When a product is designed, there is no formula for a default strategy for development accounting for safety factors. In other words, one process developer’s design for the entire process is likely to be different from another’s. They may have the same final objective, e.g. to make an oil with certain colour, flavour, shelf life, etc. characteristics, but will not necessarily arrive at the final product through the same route’.”
“what has happened and what is quite unusual in the whole process is that [detail redacted] and then comes the clever stage, which is to [detail redacted]”
“SpringThyme has spent 10 years developing its own bulk process, which uses nothing but oil and fresh herbs, spices or fruit …. ‘The other key point is that our infused oils are derived from fresh ingredients so there’s an opportunity to keep the label clean. Even in dried seasonings you often get compound flavours or anti-caking agents but with our oil there are no additives. They can be described as simply herb and olive oil. That’s driving increased usage.’ … HTST process means no ‘stewing’ SpringThyme’s infusion process uses a mix of technologies in a totally enclosed system to maximise flavour intensity while retaining the ‘fresh’ taste of the herb or spice. Mr John Graham explains: ‘Traditionally, manufacturers would chop up the herb then mix it with oil and process it in a big, sealed cooking vessel or jacket pan. ‘That gives a more stewed effect because the vessel can take up to 30 minutes just to come up to temperature. Imagine a teabag. As it’s brewed for longer the tea gets stronger but it also gets more bitter. Also, if you size-reduce the herbs first you don’t get such good oil extraction.’ In SpringThyme’s method, whole fresh herb leaves are combined with oil in a sealed vessel and then chopped in the oil. No heat is used at this stage so that few flavour volatiles are lost. The herb and oil mixture is then pumped into a continuous cooker – known as an high temperature, short time or HTST pasteuriser –where it is rapidly brought up to temperature in less than three minutes under high pressure (6-9 bar). The final part of the process is to remove the vegetable matter and, crucially, as much water as possible to minimise spoilage. SpringThyme uses a bespoke, basket centrifuge to separate water, vegetable waste and oil. The progressive filtration to below 2 microns removes any remaining potential spores before the flavoured oil is finally blended.”
“The article outlines some elements of the manufacturing process but, [detail redacted] it does not detail any of the specific critical limits that make the HACCP plan unique. Furthermore, it specifically does not refer to [detail redacted]. I therefore believe that it does not provide sufficient information to make a safe, ambient-stable, infused oil product.”
“We would receive HACCP information as part of understanding the raw materials that we are bringing in and the aspects that make them safe, so that we know when we bring a raw material to site how … we need to treat it and look after it ourselves and then subsequently process it further, and then any finished product that we would be using it in, how do we ensure that we subsequently make that safe for our customers. That is really why we are getting the information.”
“Bakkavor spent significant time and cost developing its own infused oils process. Although I did refer to the Kerry product and production process (as I understood it to be) during my work, this was certainly not vital to Bakkavor’s ability to make safe infused oil, and I do not believe that we saved time by doing so. The project followed a comprehensive (and typical) new product development process, which explored many avenues and did not take short cuts.”
“Even if … Bakkavor had never had access to the Kerry specification at all, I have absolutely no doubt that Project Aequo would have followed broadly the same path and (with marginally more input for me and other technical personnel) we would have ended up with a safe, commercially viable replacement product to that currently produced by Kerry.”
“We have completed a huge amount of tests over the past 8 months using varied temps and times to complete the infusion and the 4 we submitted we feel are the closest to suit your needs.”