Claim No: IL-2025-000064 - [2025] EWHC 2545 (Ch)

Fecha: 06-Oct-2025

Barings is authority for propositions (1) and (2); Clifford for proposition (3); The RBS Rights Issue Litigation for proposition (4); British Airways for propositions (5) to (9); and Astex for proposi

Barings is authority for propositions (1) and (2); Clifford for proposition (3); The RBS Rights Issue Litigation for proposition (4); British Airways for propositions (5) to (9); and Astex for proposition (10).

54.

Although such matters were not ventilated before me in submissions, and any views I venture to express on this topic are therefore tentative, the particular circumstances of this case lead me to consider that there may be two further relevant considerations. First, whilst proposition (3) states that expert evidence cannot assist in resolving a pure issue of disputed fact (which will fall to be determined on the factual evidence adduced at trial), in cases concerning confidential information, or trade secrets, confidentiality restrictions imposed during the course of the litigation to protect the claimant’s interests in such property may prevent, or impede, the assembly and deployment of factual evidence relating to the commercial utility, and thus the value, of that property. In such circumstances, the evidence of an expert who has been given access to such information or secrets may be necessary, or of assistance, to the trial judge in resolving related issues of disputed fact, such as the extent to which they might be of assistance to a competitor of the claimant. That is because restraints upon the disclosure of such information to potential witnesses may inhibit, or prevent, the ability of the defendant to assemble and deploy such factual evidence. How can a defendant secure the factual evidence of competitors concerning the utility and value of the claimant’s information if he is prevented from disclosing it to such potential witnesses of fact? Secondly, a claimant who bears the burden of proof in the litigation, may, as a result, have a greater need of expert evidence than the defendant, who may be able to rely upon the lack of any potentially relevant expert evidence in support of a submission that the burden of proof has not been discharged. If expert evidence is reasonably required to enable the claimant to prove an issue at trial, and no such evidence is adduced, then the claimant is likely to fail on that issue. If expert evidence would merely assist in resolving an issue, however, then the burden of proof may have less of a part to play in the court’s decision whether or not to admit expert evidence. To this extent, a party which bears the burden of proof may face a lesser hurdle than the counter-party when it seeks to persuade the court to permit expert to be given at trial.

55.

In the course of his oral submissions, Mr Craig KC took me to observations of Hildyard J in CF Partners (UK) LLP v Barclays Bank Plc [2014] EWHC 3049 (Ch) at paragraphs 123-4 for the proposition that one does not need to establish financial value for the purpose of a claim for breach of confidence or of copyright. Information can have commercial value because it is secret. There is inherent value, effectively, in the secrecy, and the inaccessibility, of confidential information. The relevant paragraphs of the judgment read:

123 Confidentiality does not attach to trivial or useless information: but the measure is not its commercial value; it is whether the preservation of its confidentiality is of substantial concern to the claimant, and the threshold in this regard is not a high one …

124 The basic attribute or quality which must be shown to attach to the information for it to be treated as confidential is inaccessibility: the information cannot be treated as confidential if it is common knowledge or generally accessible and in the public domain. Whether the information is so generally accessible is a question of degree depending on the particular case. It is not necessary for a claimant to show that no one else knew of or had access to the information.

56.

Ms Goodman referred the court to a number of authorities in support of her expert evidence application. The first is the New York Employment Arbitration Tribunal case of Bridgewater Associates, LP v Minicone, decided on 16 July 2020. This was a case in which the claimant was a hedge fund, and the respondents were former employees. Amongst other complaints, the claimant alleged that the respondents had misappropriated trade secrets and used and disclosed confidential information in breach of their contractual obligations. Both parties’ experts gave evidence concerning a unique ‘Bridgewater logic’ or ‘Bridgewater approach’, which was described as ‘a well-known and widely used process in economics and other disciplines” (p. 8). The respondents’ case was that they had not used that Bridgewater logic in their later work, relying instead on “academic articles and books”; and their expert testified that the respondents’ “models and spreadsheets appeared to be based on academic literature and copied publicly available information, thus corroborating [the] testimony” of one of the respondents (p. 10).

57.

At p. 10 of the award, the arbitral tribunal discussed the evidence provided by the respondents’ experts:

Respondents’ experts analyzed each of the alleged trade secrets and found no evidence that any of them, as described, constituted non-public information or information not known to professionals in the industry. Bateson described Leibowitz’s description of Bridgewater’s ‘investment pipeline’ as ‘very generic. All systematic funds will do this process’.