“The claimants contend that the defendants have participated in a wide-scale, unlawful attack on the claimants’ business, which has included the misappropriation of highly sensitive, confidential information about the claimants' clients in order to solicit those clients in breach of restrictive covenants and confidentiality obligations. There has been both planning and conducting of team moves during the currency of contracts and thereafter and the wholesale unlawful solicitation of contractors and staff, again in breach of restrictive covenants and tortious duties. The claimants’ case is that the evidence of wrongdoing demonstrates that that wrongdoing has taken place pursuant to a common plan in which some or all of the defendants have participated, with knowledge of the central facts or turning a blind eye at the very least, where injury to the claimants was the inevitable consequence of their gain, so that there was an intention of causing economic harm to the claimants. In other words, on the claimants’ case there has been a conspiracy by unlawful means.”
“The Defendants are not to destroy, tamper with or (save as set out below) part with possession, custody or control of the Listed Items”
“By 4pm on [INSERT DATE] the Defendants are to hand over to the Claimants’ solicitors any of the Listed Items (including all copies of the same) which are in their possession or under their control by either delivering them to the Claimants’ solicitors or as is otherwise agreed with Capita plc’s solicitors”
“As set out in Confidential Appendix 1 hereto, the Defendants misused the Claimants’ confidential information and/or Database by sending the same to their personal email addresses for the intended use of the same by Archus”
“Furthermore, at least four of the relevant emails have been saved to a computer belonging to Archus”
“Mr Chalmers and Mr Tailor are not employed by Archus. Mr Chalmers was employed for one month but when the transfer of data became known he resigned from the company. Unknown to [Mr Darch] it appears Mr Chalmers had transferred a document (which our client understands was publicly available and so not within the category of confidential information) to the lap top computer that had been issued to him by Archus. The document is not on the company’s server but the lap top has been stored securely pursuant to the undertaking demanded and given by [Mr Darch] to preserve all documents. Mr Tailor has not now joined the company. Our client cannot now say what information they may or may not have taken belonging to your client beyond the document referred to.”
“First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’ in the sense described by Hoffman J. Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo. Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish this right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted. But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted.”
“By 4 pm on [INSERT DATE] the Defendants are to forward to the Claimants’ solicitors copies of all emails that they have received into any non-Capita email account from any email account at Capita (including their own)”
“18. I am not aware of any allegation directed to me regarding the forwarding of Capita emails to a non-Capita email account. Since I have been aware of this proposed order, however, I have considered what it might require of me if it were made. It would require me to spend a lot of time trying to check for historic and irrelevant emails, and then to forward them to the Claimant’s solicitors. Those emails will in turn have to be considered by the Claimant’s solicitors. The proposed exercise is likely to incur costs of both sides, for no identifiable gain. An example of pointless emails covered by this proposed order are emails generated as a result of my having difficulties accessing Capita email accounts whilst on holiday in places such as Australia or New Zealand. When I was unable to do so in 2016 I asked Mrs Jessica Randall to try and solve the issues so that I could work on holiday. Emails generated as a result of that issue that were sent to my hotmail account would have to be sent over if this order were made. That would be pointless and expensive. 19. The proposed order would also require me to forward what are in effect personal emails. I sent photographs of my holidays in Australia and New Zealand to which Jessica and Stuart Randall replied from their Capita E mail account to my personal Hotmail account. I do not see why I should be ordered, under the threat of a penal sanction, to deliver up these emails. They are not relevant to the issues in the case.”
“In my view, it is unfortunate that the agreed wording of the preliminary issue introduced an unnecessary complication into the dispute. The reference to a “proprietary right” was a distraction from the centrality of the agency relationship and its legal incidents … The assertion of a right to inspect and copy the content of the emails on his computer relating to its business affairs arises from the legal incidents of an agency relationship that survive its termination. That question can be decided, as between those parties, without a jurisprudential debate about the legal characteristics of “property”, or whether the content of the emails was “information” in which property existed in this case or could exist at all. Everybody knows that “property” differentiates between things that are mine and things that are not mine. The law lays down criteria for determining the boundary between, on the one hand, those rights that are only enforceable against particular persons and, on the other hand, those rights attaching to things that are capable of being vindicated against the whole world. The claim to property in intangible information presents obvious definitional difficulties, having regard to the criteria of certainty, exclusivity, control and assignability that normally characterise property rights and distinguish them from personal rights. In my judgment, the court should decline to enter into a controversy of that kind when it is not necessary to do so in order to decide the case on its particular facts. It would be unwise, for example, for this court to endorse the proposition that there can never be property in information without knowing more about the nature of the information in dispute and the circumstances in which a property right was being asserted. Some kinds of information, such as non-patentable know-how, are more akin to property in their specificity and exclusivity than, say, personal information about private life. The conclusion that I have reached on this appeal makes it unnecessary to explore the question whether information in the content of the emails is property owned by Fairstar, either as a matter of fact or law. The distinction drawn in the preliminary issue between an electronic communication and the content of it and the claim to a proprietary right in the content was not the real point at issue …”
“When information is created and recorded there are sharp distinctions between the information itself, the physical medium on which the information is recorded and the rights to which the information gives rise. Whilst the physical medium and the rights are treated as property, the information itself has never been. As to this, see most recently per Lord Walker in OBG Ltd v Allan[2007] UKHL 21 ,[2008] 1 AC 1 at [275] …”
“This court was fortunate to hear a summary of his submissions by Professor McMeel arguing for the proposition to the contrary: a distinction could and should be drawn between the information which belonged to Churngold and the electronic media on which it was retained. But in the light of the authorities of OBG and Your Response Limited there is, in my view, nothing this court can or should do by way of reconsideration in the light of modern technology”
“They first claim an injunction against disclosure of confidential information or trade secrets. On this aspect of the case I agree unhesitatingly with the view of the judge. I have always understood it to be a cardinal rule that any injunction must be capable of being framed with sufficient precision so as to enable a person injuncted to know what it is he is to be prevented from doing. After all, he is at risk of being committed for contempt if he breaks an order of the court. The inability of the employers to define, with any degree of precision, what they sought to call confidential information or trade secrets militates against an injunction of this nature. That is indeed a long recognised practice.”
“In almost all businesses there must be persons in such a confidential relation to the employers … that the knowledge which they acquire … consists substantially of the secrets of their employer. Such employments come to an end … and thereupon difficulties necessarily arise, because the person who is no longer in employment still has in his breast secrets which are the property of his past employer. The view that the law takes of the rights of the parties in that position is too clear to be disputed. The employee is quite free to go into the service of people who may be the rivals or the opponents of his former master. The law does not say that the possession of those secrets shall cripple his work, or sterilize it. He may go into employment quite inconsistent with the employment which he had in the past. All that the law says is: you shall not disclose or put at the service of your new employer the secrets that belong to your old employer.” (2) In Printers & Finishers Ltd v Holloway[1965] 1 WLR 1 , Cross J said at 6F (in a passage cited with approval by the Court of Appeal on four occasions, including in Faccenda Chicken Ltd v Fowler[1987] 1 Ch 117 by Neill LJ at 137H, and in Littlewoods Organisation Ltd v Harris[1977] 1 WLR 1472 at 1479C by Lord Denning MR, and by Megaw LJ at 1485C): “If the managing director is right in thinking that there are features in the plaintiff's process which can fairly be regarded as trade secrets and which their employees will inevitably carry away with them in their heads, then the proper way for the plaintiffs to protect themselves would be by exacting covenants from their employees restricting their field of activity after they have left their employment, not by asking the Court to extend the general equitable doctrine to prevent breaking confidence beyond all reasonable bounds.” (3) In Balston Ltd v. Headline Filters Ltd[1987] FSR 330 , Scott J said at 351: “Employers who want to impose fetters of this sort on their employees ought in my view to be expected to do so by express covenant. The reasonableness of the covenant can then be subjected to the rigorous attention to which all employee covenants in restraint of trade are subject.”
“I add that the form of interim relief sought by CLS is hopelessly wide and vague. It does not specify the confidential information to be the subject of restriction with any certainty, but simply describes it as “all or any confidential information acquired by the respondent during her employment with [CLS] in whatever form”
“If it will not be possible to hold a trial before the period for which the plaintiff claims to be entitled to an injunction has expired, or substantially expired, it seems to me that justice requires some consideration as to whether the plaintiff would be likely to succeed at a trial. In those circumstances it is not enough to decide merely that there is a serious issue to be tried.”
“Springboard relief is only necessary on the claimants’ case against D3, D6 and D10. Even if I am satisfied that the defendants, or some of them, have made unlawful use of material belonging to the claimants, that is not enough to found a claim for springboard relief. The claimants must show that the defendants have gained an unfair competitive advantage over the claimants and that that advantage still exists and will continue to have effect unless the relief sought is granted. It is clear from the authorities that the court should exercise considerable caution both as to whether to grant such an injunction at all and, if so, as to its form and duration. In particular, the duration of such an injunction should not extend beyond the period for which the defendants' illegitimate advantage may be expected to continue because such injunctions are granted to protect against and to prevent further loss, rather than being used to punish for past breaches of contract.”
“40 Bearing all these considerations in mind, I am persuaded that there is an arguable case for springboard relief here. There is an arguable case based on the evidence available that unlawful use has been made of the claimants’ confidential information and trade secrets by these defendants. If that is right and it is established at trial, it is highly likely that an unfair competitive advantage has been obtained, in that Belgravia has been able to hit the ground running even as a start-up. Unlike the ordinary start-up, starting up without the unlawful use of contacts and individuals, it has managed to establish itself with established teams of people in each office. Those teams have worked together and know how to work together and know how to work together in the business that they are working on. On the claimants’ case, they have done so using confidential client information belonging to the claimants. That gives rise to a strongly arguable case if the claimants’ evidence is ultimately accepted, that Belgravia has obtained an unfair competitive advantage. 41 There is plain evidence of attempted and successful solicitation on the claimants’ case. How that occurred precisely, to what extent it flowed from coordinated action by the defendants, how widespread and successful it was, will be a matter for trial. But, in my judgment, there is evidence of an arguable case and evidence of ongoing dealings with clients. D9 effectively admitted this to be the case … so far as the absence of more up-to-date documentary proof of ongoing damage after July is concerned and relied on by the defendants, I am satisfied that this reflects the fact that disclosure has not yet been provided. It is not to be treated as positive evidence that damage to the claimants’ business has ceased or that any unfair competitive advantage has ceased to have effect... 43 … The question at the end of the day, in relation to springboard relief is whether an arguable case has been raised that the unfair advantage obtained by the defendants still persists, and whether it will continue to persist unless relief is granted. I am persuaded that this has been established. If the claimants are correct that D3 was involved in the misuse of confidential information and the team moves, it is undoubtedly the case that he has obtained an advantage which has accrued and which persists. I have already made reference to the adequacy of damages in the context of the covenant and confidentiality-based injunctions. The position is stronger in relation to the springboard injunction so far as adequacy of damages is concerned and I am satisfied that damages are not an adequate remedy … It is right to say that the relief must fit the facts of the case. It must reflect and restrain the spectrum of unlawful activities. Here, if the claimants’ case is established at trial, the defendants stole a march on the claimants and gained an unlawful head start. Again, on the claimants’ case they did so by misusing confidential information and by poaching teams of staff. In my judgment, the fair, just and equitable approach in these circumstances is to make an order in terms of paragraph 2 and 3 of the claimants’ original draft order subject to what I say at the end of this judgment in relation to D6 and D10, for the short period until the speedy trial or any further order. 44 The evidence against D6 and D10 is strong. I recognise that such an injunction may have the effect of restraining what would otherwise be lawful activities, but those activities are, arguably at least, based on an unlawful foundation and therefore must be accepted. In the case of D3, I consider that springboard relief should also be granted and I propose to make an order in the same terms as for D6 and D10 subject to any further submissions that are made in relation to D3 and subject to what I say at the end of this section in relation to “services”
“[Counsel] emphasised that springboard injunctions are very exceptional and that there must be compelling evidence of serious wrong doing and he cites cases such as UBS Investoral Wealth [2008] IRL 654 and Tullett Prebon Plc v BGC Brokers[2009] EWHC 819 . I would see more force in this if we were granting a long injunction, but at this stage, we are only concerned with granting the injunction pending the return date, which should be between one and two weeks ….”
“expedition will only be justified on the basis of real, objectively viewed, urgency. It is against that background that Neuberger LJ’s four factors from W.L. Gore supra are to be considered, namely (1) whether the applicants have shown good reason for expedition; (2) whether expedition would interfere with the good administration of justice; (3) whether expedition would cause prejudice to the party; and (4) whether there are any other special factors.”