"It does not follow that your client is then entitled to an interim injunction. The English legal team has now given detailed further consideration to the material and temporal scope of the NDA. It is clear to us that, upon its true construction, the NDA only covers information provided after the effective date of the NDA,12th September 2017 . It does not cover information provided before the effective date, nor does it cover the existence of discussions or negotiations taking place before that date. Our client is therefore entitled to rely on the fact of the meeting in August 2017 (and e-mails prior to the Effective Date referring to the existence of that meeting) in support of its claim to personal jurisdiction in the Massachusetts proceedings."
"12 Freedom of expression. "(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. … "(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. "(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to— "(a) the extent to which— "(i) the material has, or is about to, become available to the public; or "(ii) it is, or would be, in the public interest for the material to be published; "(b) any relevant privacy code. "(5) In this section— “'court' includes a tribunal; and "
"In my view section 12(3) calls for a similar approach. Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."
"In my experience, NDAs are a common occurrence in these situations precisely because they promote full and frank discussion without the risk that entering into discussions in a particular place exposes one or other parties to the risk of proceedings for declaratory judgment in the courts of that place."
"Including without limitation information relating to the Proposed Agreement or the evaluation thereof after the date of this Agreement."