“[71] On an application for permission to serve a foreign defendant …. out of the jurisdiction, the claimant… has to satisfy three requirements: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran Ltd[1994] 1 AC 438 , 453—457. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, i.e. a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success: e g Carvill America Inc v Camperdown UK Ltd[2005] 2 Lloyds Rep 457 , para 24. Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context “good arguable case” connotes that one side has a much better argument than the other: see Canada Trust Co v Stolzenberg (No 2)[1998] 1 WLR 547 , 555—557, per Waller LJ affirmed[2002] 1 AC 1 ; Bols Distilleries BV v Superior Yacht Services (trading as Bols Royal Distilleries)[2007] 1 WLR 12 , paras 26—28. Third, the claimant must satisfy the court that in all the circumstances [in this case England] is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.”
“6.36 In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court, if any of the grounds set out in paragraph 3.1 ofPractice Direction 6B apply.”
“6.37 (1) An application for permission under rule 6.36 must set out- (a) which ground in paragraph 3.1 ofPractice Direction 6B is relied on; (b) that the claimant believes that the claim has a reasonable prospect of success; (c) the defendant’s address or, if not known, in what place the defendant is, or is likely to be found. (2)……. (3) The court will not give permission unless satisfied that England and Wales is the proper place to bring the claim.” (1) An application for permission under rule 6.36 must set out- (a) which ground in paragraph 3.1 ofPractice Direction 6B is relied on; (b) that the claimant believes that the claim has a reasonable prospect of success; (c) the defendant’s address or, if not known, in what place the defendant is, or is likely to be found. (2)……. (3) The court will not give permission unless satisfied that England and Wales is the proper place to bring the claim.”
“Service out of the jurisdiction where permission is required 3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where— Claims in relation to contracts (6) A claim is made in respect of a contract where the contract— (a) was (i) made within the jurisdiction or (ii) concluded by the acceptance of an offer, which offer was received within the jurisdiction; (b)… (c) is governed by the law of England and Wales; (8A) A claim for unlawfully causing or assisting in: (a) A breach of contract where the contact falls within one of paragraphs (6)(a) to (6)(c) above or within Rule 6.33(2B); or A breach of contract falling within paragraph (7) above.”
“The mere fact that the defendant is challenging jurisdiction does not somehow impose a duty on him to specify his case. The onus is on the claimant to satisfy the court that there is a serious issue to be tried on the merits of the claim, and not on the defendant to satisfy the court that he has a real prospect of successfully defending it.”
“[16] The approach to the first requirement, the merits test, was summarised by Popplewell LJ in Kawasaki at [18] (which I reproduce below but without the case references supplied by the Judge): “i) It is not enough that the claim is merely arguable; it must carry some degree of conviction. ii) The pleading must be coherent and properly particularised. iii)The pleading must be supported by evidence which establishes a factual basis which meets the merits test: it is not sufficient simply to plead allegations which if true would establish a claim; there must be evidential material which establishes a sufficiently arguable case that the allegations are correct.” [17] I will call these principles the “Kawasaki Test”
“[21] At para 9 of Vedanta Lord Briggs JSC emphasised that where, as in this case, the jurisdictional issue is whether there is a triable issue as against a defendant, it is important to observe judicial restraint and to avoid minitrials, in accordance with the well-known guidance set out by Lord Hope of Craighead in Three Rivers District Council v Governor and Company of the Bank of England (No 3)[2003] 2 AC 1 …. [22] Where, as will often be the case where permission for service out of the jurisdiction is sought, there are particulars of claim, the analytical focus should be on the particulars of claim and whether, on the basis that the facts there alleged are true, the cause of action asserted has a real prospect of success. Any particulars of claim or witness statement setting out details of the claim will be supported by a statement of truth. Save in cases where allegations of fact are demonstrably untrue or unsupportable, it is generally not appropriate for a defendant to dispute the facts alleged through evidence of its own. Doing so may well just show that there is a triable issue.”
“(d) Fourth, where a party invites the court to draw inferences of arguable wrongdoing, there must be a sufficient prior pleaded factual foundation supporting such inferences. That foundation might come, for example, from expert evidence in a data breach case, even if in draft form prior to formal permission underCPR 35 . The foundation for an inference might also come from the inherent probabilities that certain events would have followed upon other events which have been established as arguable by evidence. Naturally, a court will be less willing to draw an inference that there was arguable serious wrongdoing involving, for example, acts of dishonesty, concealment or bad faith than more neutral conclusions. (e) Fifth, in reaching its interlocutory conclusions the court must take into account not only the evidence actually placed before it on the application for summary judgment but the evidence that can reasonably be expected to be available at trial (a point specifically emphasised by Counsel for the Claimant). Again, this point only goes so far and should not be interpreted as a charter to plead a factual case which it is said may become sustainable when disclosure is given.”
“[99] … One cannot plead an unsustainable case and then pray in aid potential disclosure to save it from summary judgment and striking out”
“I do not wish in any way to diminish the importance of proper particulars of trade secrets being provided in cases of this nature. What amounts to sufficient particularisation must depend on the circumstances of the individual case, however. Furthermore, a lesser degree of particularisation may be acceptable at the outset of a case than at later stages of the case. Still further, I accept that it is relevant to take into account the claimant’s ability to provide further particulars, and the extent to which the claimant has been hampered by obstructiveness, or at least non-cooperation, on the part of the defendant. In the circumstances of the present case, I consider that Celgard has done enough for now, although it will undoubtedly have to give further particulars at a later stage.”
“we are very suspicious, it may be that the various elements of a cause of action can be made out but it may be that they cannot, we have no idea but once we have disclosure we will find out and the point will either be clear or we will be clear about what inferences we are inviting the court to draw and which have a real prospect of success, and we will then plead our position.”
“[30] Although this was said in the context of an application for a freezing order, the principles are of general application.”
“e-star is the new star in the energy trading sky: An innovative Software as a Service company that provides flexible trading opportunities for companies of all sizes-in the way that suits them best. From out of the box application to advanced integration, from standard products to bespoke instruments, from domestic to global markets: e-star enables companies to trade directly with all market participants and increase reach and liquidity for trading success. e-star is not a newcomer to the sector. Behind the startup is a lot of experience. It was founded by #Exxeta a digital consultancy with a specialisation in energy. With a clear focus on #saas the new company now offers this powerful product for energy trading. And aims to continue setting new benchmarks for the industry in the future”
“Estar wants to challenge Trayport” and contains a number of quotations Dr Kamper. The development of the markets is said to provide E-Star with the opportunity “to represent the market with direct access to the exchanges and selected brokers”
“It would be great if the Trayport monopoly were finally broken up”
“Why should I pay for an expensive broker umbrella if there are no offers on the umbrella anyway?” explained Karsten.”
"[Trayport and ICE] said there was nothing unique about Trayport's software in terms of functionality and equivalent software was available from a wide range of other ISVs. These included Exxeta, Trading Technologies, and SunGard among others." 7.99: "[Trayport and ICE] also said that customers exert considerable buyer power and that they can and do sponsor entry. For example, they said that the major German utility firms RWEST and E.ON had sponsored Exxeta's development of its trading software for European utilities since 2007 and that Exxeta now provides aggregated access to the same marketplaces as those available via Trading Gateway." 9.4: "
“First, the information itself …must ‘have the necessary quality of confidence about it’. Secondly, that information must have been communicated in circumstances importing an obligation of confidence. Thirdly, there must have been an unauthorised use of the information to the detriment of the party communicating it.”
“[8] The essence of the Claimants’ complaint is that Mr Veliks has, using log-in details provided to him by Euro Live for the purposes of his employment with Euro Live, accessed confidential information on Horizon after the termination of his employment and has thereby provided Realtime with access to confidential information on Horizon. The Claimants further allege that Mr Veliks and Realtime have used confidential information from Horizon in the development of two of Realtime’s games, namely Travel Fever and Diamond Rush Roulette (“the Derivative Games”). The Claimants contend that the confidential information misused by Realtime and Mr Veliks constituted trade secrets.” [11] Playtech relies on reports of 33 instances of alleged access to Horizon by Mr Veliks or other employees of Realtime. The reports include the IP addresses from which the access is said to have been made. These indicate that, in the vast majority of cases (around 94%), the alleged access took place from Latvia. In no case did the alleged access take place from the UK.”
“[106]. Playtech argues that damage has been sustained in the United Kingdom as it is based in the United Kingdom and trades from there and receives the revenues which may be damaged from unfair competition arising from these breaches in the United Kingdom. Whilst it has not identified competing specific imports, as was the case with the Direct Claim in Celgard, this is understandable as it is a different type of business that does not sell physical goods but instead sells intangible products. Nevertheless, it seems to me that it has got close enough to the Direct Claim in Celgard in that it has presented a strong case that it is facing competition to its business, which it conducts in the UK, in relation to its sales from at least one game that has a feature that has relied on its confidential information. This seems to me to be a good argument and a sufficient justification for the direct claims that Playtech is making against Mr Veliks and against Realtime Latvia to pass through this gateway.”
“[36] This pleading is entirely concerned with the indirect consequences to Playtech of the acts complained of, and in particular with the reduction in the licensing revenue received by Playtech in the UK, not the direct damage caused by those acts. The mere fact that Playtech loses revenue in the UK is not sufficient for this purpose: cf. Kitechnology (cited above) at 779-780 and AMT Futures v Marzillier[2015] EWCA Civ 143 ,[2015] QB 399 at [31] (Christopher Clarke LJ) (both cases concerning Article 5(3) of the Brussels Convention and of Council Regulation 44/2001/EC, but the point is the same). [37] There is no allegation that either of the Derivative Games has been downloaded, or otherwise accessed, by anyone in the UK. It is no answer to this to argue, as counsel for Playtech did, that such acts are encompassed within the scope of Playtech’s pleading. The pleading is wholly unspecific as to how and where the alleged loss of licensing revenue arose. Furthermore, the lacuna is not merely one of pleading: as counsel for Playtech accepted, Playtech has not adduced any evidence that either game has been downloaded, or otherwise accessed, by anyone in the UK. It has not even demonstrated that they were made available to consumers in the UK. [38] It follows that, contrary to the judge’s view, there is no parallel between Playtech’s claim for misuse of trade secrets and the Direct Claim in Celgard v Senior even if one disregards the potential distinction between physical goods and intangibles when it comes to Article 4(5) of the Trade Secrets Directive. On Playtech’s pleaded case, the only direct damage it has suffered was sustained in Latvia. Accordingly the applicable law is Latvian law. It follows that the claim does not satisfy Gateway 21 (and that English law cannot be applied to determine that the claim raises a serious issue to be tried).”