Darchem Engineering Limited v Andrew Richardson

This is an application for imaging and ancillary orders. The basis for the application is, in broad summary, that the defendant, one of the claimant’s former employees, has improperly obtained and retained the claimant’s trade secrets and other confidential information.

The claimant asks for an order that the hearing be in private. It concedes that any order on the substantive application will be a public document and that a public judgment can be given, if necessary subject to redactions.

The test under regulation 10.4 of the Trade Secrets (Enforcement, etc.) Regulations 2018 and rule 39.2.3(c) is necessity in order to preserve confidentiality. Under regulation 10.7 I must also take into account the matters in that sub-paragraph when assessing the proposed privacy order.

The bulk of the relevant material has been provided to me in a confidential annex to the claimant’s witness statement. I am satisfied that this material falls within regulation 10 and rule 39.2.3(c). I have considered whether a measure less than a hearing in private would be practicable as being more proportionate. I have come to the view that as the material in the confidential annex is at the heart of the application, it would not be practicable to hear only part of the application in private and it is necessary to make a privacy order in relation to the entire hearing.

Any order that I make will not be a private order and I will circulate written reasons to the parties to ensure that a public judgment is given, but in such a manner that any confidential information is preserved.

I am clearly not going to have time to give a judgment today in relation to the number of issues that have arisen. I am, however, minded to make an imaging order but not in the full terms that have been applied for.

So what I propose to do is go through the order and I will circulate my reasons in writing later this week. I am going to make the order to take effect on Tuesday next week rather than this week, to give everyone a chance to see my reasons before it actually does. This hearing has been on notice and there was some delay in applying for it. Because unfortunately I have a fairly heavy hearing over the next couple of days I am not going to get to it until the end of the week.

The orders that I minded to make are under electronic data imaging the reduced orders that we discussed. So in relation to paragraph 1 it would have to be personal items. They would have to exclude NDT’s systems. In relation to 2, online accounting and payment systems and online bank accounts must come out.

In relation to the interim injunction, that falls away by the undertakings. I am willing to make the order for disclosure of the emails in paragraph 1 but in relation to the rest of the specific disclosure, given I have made an order preserving relevant data, I do not think the test for the rest of it is made out, because you have it preserved and the matter can be dealt with by disclosure in the ordinary way.

In terms of the prohibited acts, once the data is preserved those fall away, do they not?