CL-2025-000380 - [2025] EWHC 2462 (Comm)

For reasons I set out in JP Morgan v VTB Bank [2025] EWHC 1368 (Comm) and JP Morgan International Finance Ltd v Werealize.Com Limited and others [2025] EWHC 1842 (Comm), both of which are under appeal, I accept that not all proceedings by one party to a contract against an affiliate of another which would, if brought as between the contracting parties have been subject to an exclusive forum clause, are necessarily vexatious and oppressive if brought in another forum. I accept that is equally true of claims brought by an affiliate of one contracting party against the other (or its affiliates) in similar circumstances.

In this case, the Confidentiality and Collaboration Agreements contemplate confidential information originating with non-signatory Related Persons and being provided to such persons, and they contemplate that proceedings might be brought against non-signatory Recipients, without seeking to limit the jurisdictions in which such claims might be brought.

Even so far as Croda Europe is concerned, to the extent a non-signatory Agform Party had original rights of confidentiality or intellectual property rights which were infringed by Croda Europe, I am aware of no legal principle which would require claims based on those rights to be brought in the exclusive forum agreed between the Agform signatories and Croda Europe under the contracts pursuant to which the confidential information was passed to Croda Europe. This would be so even if the non-signatory Agform companies had permitted AL and ATL to provide those materials to Croda Europe and to enter into a contract in doing so. There is some analogy here with the position in bailment on terms (see The Mahkutai [1996] AC 650).

Mr Gourgey KC confirmed that it was not being said that the Delaware Proceedings “were intended through a side route to make claims against a party to the EJC”, or to operate “as a means of bringing claims indirectly against an EJC party”.

Delsys was incorporated on 5 September 2023. Mr Misselbrook initially stated that Delsys became owner of the relevant patent following its incorporation in 2023, with ATL as its licensee. That statement has since been corrected, and reference made to a patent application.

However, there is evidence that Delsys applied for an international patent on 10 January 2024 (published on 18 July 2024), referring to previous applications dated 10 January 2023 and 14 September 2023. Those earlier applications were made by AL, but a Form 21 filed on 26 September 2023 changed the identity of the applicant to Delsys, referring to a Deed of Assignment (which has not been produced prior to the hearing, but was provided afterwards) dated 21 September 2023. That is consistent with Mr Misselbrook’s evidence that Delsys was formed to hold company intellectual property and associated rights.

There are two further agreements to which I have already referred dated 6 June 2024 and 9 September 2024 but these concern a different technology (the “Transcel Technology”) not the Envelop Technology.

Mr Hatt’s submissions asserted that a patent was not a necessary element in the cause of action in the Delaware Proceedings, which were based on rights of confidential information and know how, with the patent application being relied upon to evidence whose know-how or trade secrets were the subject of the infringement claim. I did not understand that to be disputed and it was consistent with the Croda Parties’ evidence. However, Mr Hatt submitted that Delsys’s acquisition of the patent application rights would have involved acquiring an interest in underlying confidential information, and I accept it is arguable that might be the case.

In these circumstances there is nothing to suggest that the claims brought by Delsys in the Delaware Proceedings represent claims assigned by AL or ATL to Delsys in such a way that the claims are conditioned by the EJCs in Delsys’ hands. Rather there is evidence that offers some support for the view that the rights asserted by Delsys derive from assignment dated 21 September 2023.

While it is not for me to decide whether Delsys has the right to seek damages for the alleged misuse of the confidential information in issue, the material before me does not suggest that their role as a claimant in the Delaware Proceedings is simply as a means of circumventing the EJCs and I am not persuaded that the pursuit of those claims is vexatious and oppressive for that reason. The Confidentiality and Collaboration Agreements contemplate that non-signatories to that agreement may have rights in the information provided, without seeking to make them subject to the EJCs or parties to the agreement. To the extent that Delsys has its own rights in relation to the alleged trade secrets, tortious claims against alleged infringers of those rights are a well-recognised and conventional form of legal redress.

I am not persuaded that the form of the Complaint reflected a deliberate attempt to seek to evade the EJCs. Its generality is not untypical of pleadings in many jurisdictions.

In any event, it is clear from the face of the Complaint that claims were brought by AL and ATL against Croda Europe which fell within the EJCs, and Croda Europe has obtained ASI relief on that basis. The most that can be said is that the basis for the “derived rights” injunction only became clear from documents filed in this challenge (although, even then, it was readily ascertainable that AgLLC came into existence after the events said to give rise to the claim).

At the point when the court is being asked to grant ASI relief on vexatious and oppressive grounds, it was possible to identify which claims breached the EJCs and grant ASI relief accordingly. The continuation of the Delaware Proceedings at that stage could not be said to be vexatious and oppressive even on the basis put forward by Mr Gourgey KC.

In any event, I would not have been satisfied that it was appropriate to grant an ASI requiring the withdrawal of claims which had not been brought in breach of contract and which Delsys would be free to re-commence immediately.

Finally, it is not for the English court through ASI relief to seek to police the content of pleadings served in other jurisdictions, which have different rules and styles. The fact that the Complaint does not presently set out the basis for Delsys’ claim that its rights were infringed does not make Delsys’ claims vexatious and oppressive.

In the course of submissions, Mr Hatt pointed to some matters said to support the inference that individuals who reviewed confidential information were employees of one of these companies rather than Croda Europe. Mr Gourgey KC disputed that contention, but the parties best placed to explain the involvement of those individuals are the Croda Parties, who said little about them.

In any event, if it turns out that the Agform Parties cannot prove that there are acts attributable to Croda Plc and Croda Inc which engage their liability under the applicable US and Delaware statutes, their claims should fail. It is not for this court to decide whether or not claims should proceed in Delaware on the basis of an alleged lack of merit.

I am not persuaded to the requisite standard that Croda Plc and Croda Inc were included in the Delaware Proceedings simply for the purpose of circumventing the EJC, still less that they merit the characterisation of being “vexatious and oppressive”. Mr Gourgey KC accepted that if the only claims brought in the Delaware Proceeding were against Croda Plc and Croda Inc, he would not be able to argue that a complaint limited to claims against Croda Inc and Croda Plc was vexatious and oppressive. His argument rested upon the failure to differentiate the positions of the various parties in the Complaint which I have already rejected.