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

Subject to these qualifications, however, I accept the claimants’ submissions. In my judgment, it is necessary to step back and look at the reformulated disclosure issue 8 in the context of the claim, and the defence, as a whole. It seeks extended disclosure of: Work on Humber undertaken by, or originating from, teams which excluded the defendant. It is expressly directed to looking specifically at how Humber itself was developed. It is premised on the proposition that if the work on Humber was largely undertaken by teams which excluded the defendant (as he alleges), then whatever material relating to Humber he may have had within his possession will have been largely valueless, being early stage, upstream, code, which bore no resemblance to Humber as it was actually developed or deployed. However, the true focus of this litigation must be on the confidential material that the defendant admits that he accessed, and misappropriated, from the claimants. Ms Goodman says that the claimants will be entitled to minimal relief in circumstances where the defendant poses no (or minimal) danger to the claimants' business. But the extent of the risk that the defendant poses to that business will be a matter to be evaluated by the trial judge on all the evidence presented to the court. If that evidence includes the products of disclosure issue 6, the judge will have the documentary material relevant to “the commercial and/or negotiating value of both (i) deployed; and (ii) non-deployed trading strategies within the confidential and/or copyright material captured by the GR Information”. I fail to see what further material documentation will be disclosed by searches directed to ‘Work on Humber undertaken by, or originating from, teams which excluded the Defendant’. Such disclosure would be superfluous to any reasonable, or proportionate, requirement. In short, disclosure of documentation relating to the work on Humber is irrelevant to the fair resolution of this litigation. Since the disclosure would relate to work undertaken by teams excluding the defendant, it would also afford the defendant access to further confidential material. Given the defendant’s previous, acknowledged misappropriation of the claimants’ confidential information, and the (at best) peripheral relevance of the material sought to the actual dispute, I accept that the risk of the defendant misusing the information obtained through disclosure is a further factor that should militate against the inclusion of the reformulated issue 8 on the grounds of proportionality.

Had I taken a different view, and ordered disclosure in accordance with either issue 4 or the reformulated issue 8, I would have ordered model C disclosure as against the claimants. I would not have accepted that disclosure on either of these issues was central to this litigation. Further, the parties have agreed model C disclosure for the claimants in relation to issue 6; and I see no reason why any different disclosure model should apply to either of issues 4 or 8. I therefore refuse to direct disclosure issue 8.

I turn to ancillary disclosure issues, concerning the data sources and locations to be searched in respect of the defendant’s disclosure. I understand that the defendant is content to agree to undertake a review of his digital devices and online storage accounts as provided for in the disclosure review document. Had he not been, I would have ordered him to do so. I would have rejected any submission that none of his devices or online storage accounts needed to be searched for material relevant to the issues for disclosure on the basis that they have already been searched in connection with the process under the imaging and inspection order, for the reason set out at paragraph 13 of the claimants’ further written submissions.

As for email messages contained on accounts created following the commencement of the litigation, the claimants have pointed to the defendant's continuing obligation to disclose known adverse documents. The defendant points out that he is also under an obligation (under para 3.1 (6) of PD 57AD) to "use reasonable efforts to avoid providing documents to another party that have no relevance to the issues for disclosure in the proceedings. Ms Goodman says that it is with a keen eye to this latter duty that the defendant proposes not to search any accounts created after the commencement of this litigation, in circumstances where these proceedings began with the removal and imaging of all 14 of his devices. She emphasises that there is simply no suggestion or extant allegation that, following the commencement of the litigation, the defendant has misappropriated any more of the claimants' confidential information. The claimants' security systems are (on their own case) highly advanced and complex, and would no doubt have detected any attempt by the defendant to further access the claimants' information. To the extent that the defendant has discussed any confidential information after this litigation commenced, those discussions were with his legal advisors, with a view to obtaining advice (and are accordingly subject to litigation privilege). Whilst the claimants are correct to suggest that, if a review were to be undertaken, the defendant would be entitled to assert privilege (where appropriate), the defendant is certain that the sole outcome of reviewing devices and accounts post-dating the commencement of the litigation will be an undue, and unnecessary, increase in the overall costs of the disclosure exercise, as it will only produce privileged communications between the claimants and the defendant.

The claimants submit that there is no basis for the proposed exclusion from disclosure of all email messages contained on “accounts created following commencement of this litigation”. Obviously the claimants do not expect privileged material to be disclosed. However, it is entirely possible that such accounts contain relevant emails that are not privileged, and which contain evidence pertaining to the defendant’s misuse of the claimants’ confidential information before, or after, the commencement of these proceedings. It is said to be noteworthy that the defendant has sought to rely on a previous order of Arnold J in other litigation in support of his application for expert evidence. Yet that order also dealt with disclosure in those proceedings, and ordered disclosure of documents coming into existence after the alleged dates of misuse, but which related to that earlier misuse. There is, in any event, a continuing duty of disclosure. Accordingly, the disclosure review document should require such accounts to be searched, and for any non-privileged, disclosable documents identified by such searches to be disclosed in the usual way.

I accept the claimants’ submissions and direct that the disclosure review document should require all the defendant’s email accounts to be searched, and for any non-privileged, disclosable documents identified by such searches to be disclosed in the usual way. There is a continuing duty of disclosure. Any communications evidencing post-litigation misuse of the claimants’ confidential information is properly disclosable. If there is no such disclosure to give (as the defendant contends), then this may assist the defendant’s own case as to the extent of the relief to be afforded to the claimants at trial.