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

I am satisfied to the requisite high degree of probability that the claims asserted by ATL against Croda Europe in the Delaware Proceedings (and those claims previously asserted in the name of AL against Croda Europe) fall within the Confidentiality Agreement and Collaboration Agreement EJCs.

As to the continuing operation of the EJCs, ATL argues that the agreements in which they are to be found have been terminated or expired. As to this:

That leads to the issue of whether the Croda Parties have established to a high degree of probability that the EJCs extend to the subject-matter of the Delaware Proceedings so far as claims by ATL against Croda Europe are concerned (AL being in the same position). The broad approach to the construction of EJCs is well-established, reflecting the inherent improbability that businesses would want disputes arising out of the same commercial relationship to be decided in different fora, with a risk of inconsistent outcomes and additional expense (Fiona Trust v Privalov [2007] UKHL 40). That principle does not depend on the particular cause of action relied upon (whether breach of contract, a claim in tort or for breach of statutory duty) but whether the facts from which the claims arise have the requisite degree of connection with the relationship to which the EJC applies.

I accept Croda Europe’s submission that the wording of the EJCs in this case is similar to that in the licence agreement in issue in Chugai Pharmaceutical Co Ltd v UCB Pharma SA [2017] EWHC 1216 (Pat), of which Carr J observed at [35] that its effect was that the parties had agreed “to submit … to the jurisdiction of the English courts all disputes under or in connection with the Licence”.

In this case, I am satisfied to a high degree of probability that the claims in the Delaware Proceedings arise from facts with the requisite degree of connection with the Confidentiality and Collaboration Agreements. I have already referred to the fact that the claims in the Delaware Proceedings are essentially those previously articulated in correspondence where they were said to involve breaches of the Confidentiality and Collaboration Agreements. The fact that the claims are articulated by reference to US and Delaware legislation does not assist the Agform Parties.

Indeed I accept the Croda Parties’ submission that the close connection between the claims being asserted in the Delaware Proceedings and the Confidentiality and Collaboration Agreements is reflected in various allusions to those agreements made in the Complaint: for example a reference to the general practice of requiring non-disclosure agreements when confidential information is shared with potential business partners (paragraph 27); the allegation that “Croda received access to Agform’s Envelop trade secrets by promising to partner with Agform and assuring that Croda could keep Agform’s trade secrets safe” (paragraph 1 - those “assurances” were the Confidentiality and Collaboration Agreements); the reference in paragraph 31 to “Agform” obtaining “additional protection from Croda with respect to its trade secrets”; in paragraph 33 to “the protections that Agform had put in place”; in paragraph 34 to disclosure with “even further bases for understanding that Croda would not misuse them” and at paragraphs 63 and 73 to requiring “assurances of non-disclosure before any external disclosures”. It is fair to say that the Complaint seeks to explain its reticence in identifying the contracts on the basis of the alleged confidentiality of the Confidentiality and Collaboration Agreements themselves. The extent to which that provides a satisfactory explanation can be explored on another occasion. For present purposes, the references are relied upon to demonstrate the close connection between ATL’s (and AL’s former) claims against Croda Europe and the Confidentiality and Co-operation Agreements.

Next, there is the question of whether it is the case that relief could be sought under the US and Delaware statutes in this jurisdiction, and, if not, whether that is a reason for concluding that such claims are not subject to the EJCs. I am willing to assume that relief cannot be claimed under those statutes in English court proceedings, albeit there is no material to suggest equivalent relief cannot be obtained in this jurisdiction through claims for breach of contract and confidence. Mr Hatt relied on the oft-cited passage from Lord Scott in Donohue v Armco Inc [2001] UKHL 64, [68], to the effect that “it cannot … be supposed that in submitting to the exclusive jurisdiction of the English courts the parties had in mind claims which an English court would have no jurisdiction to entertain”. That paragraph is not easy to reconcile with Lord Bingham’s statement at [29] in the same case that “on agreement of the exclusive jurisdiction clause [Mr Donohue] could reasonably have felt confident that no RICO claim arising out of or in connection with the agreements could be pursued against him and it would represent an obvious injustice if he were now to be exposed to those claims”. The other members of the court, including Lord Scott, expressed agreement with Lord Bingham’s judgment. The recognition that very often a choice of forum will be intended to prevent certain types of claim being pursued which might be available in other jurisdictions (or at least have this as an anticipated effect) is recognised in a number of cases, which I summarised in Riverrock Securities Ltd v International Bank of St Petersburg [2020] EWHC 2483 (Comm), [58]-[66] and NDK Ltd v Huo Holding Ltd [2022] EWHC 1682 (Comm), [61]. Having agreed that the English court should have exclusive jurisdiction in respect of the Confidentiality and Collaboration Agreements which provided the framework for confidential information to be exchanged and protection for that confidentiality, ATL (and, should it subsequently wish to do so, AL) cannot complain that the forum to which they agreed provides different legal mechanisms for enforcing its right of confidence than other jurisdictions which they did not chose.

Nor am I persuaded by Mr Hatt’s attempt to involve the Moçambique rule on the basis that the English court would not have jurisdiction to decide the validity of a foreign patent (British South Africa Co v Companhia de Moçambique [1893] AC 602 and IBM United Kingdom Limited v LZLABs Ltd [2022] EWHC 2094 (TCC), [126]). As Mr Hatt himself submits, “the Delaware Proceedings are not a patent enforcement action” and I have seen nothing to suggest that any issues of the validity of foreign patents are engaged. Assuming that the Moçambique principle extends to the validity of patents, it is not arguable it extends to rights of confidentiality or trade secrets.