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

Fecha: 30-Sep-2025

Has ATL shown strong reasons to refuse the relief sought by Croda Europe?

Has ATL shown strong reasons to refuse the relief sought by Croda Europe?

37.

At this point, the burden moves to ATL to show strong reasons why the court should nonetheless refuse Croda Europe ASI relief. Three are relied upon.

38.

The first is the suggestion that Croda Europe has delayed in seeing relief. I am not persuaded that there is anything in this objection:

On 30 April 2025, ATL wrote to Croda Plc complaining about a potential disclosure of confidential information to a US company. This did refer to potential proceedings under US statutes and to US court procedures, but also stated that the actions constituted (inter alia) a breach of the Confidentiality and Collaboration Agreements. ATL referred to a letter before action which “Agform” would now proceed to issue and stated “Agform will initiate legal proceedings in the High Court of Justice and will also explore action in the United States” (emphasis added).

ii)

A meeting was arranged and on 12 May 2025 Mr Misselbrook sent Mr Brophy (General Counsel of the Croda Parties) an email stating that the points to be discussed included “the Collaboration Agreement”. On the same day Mr Misselbrook sent another email stating that he had had helpful discussions “with legal counsel” in the US “about the jurisdictional implications of third party disclosure”. The meaning of that utterance is Delphic, but it did not, in my view, provide a sufficiently clear signal that proceedings were to be brought in breach of the EJCs as between parties to the EJCs.

iii)

On 15 May 2025, Mr Misselbrook sent Mr Brophy an email referring to breaches of the Confidentiality and Collaboration Agreements, to the instruction of UK solicitors to commence High Court proceedings and to consultations with US counsel regarding a claim under the Defend Trade Secrets Act “against Croda Inc”. I accept that this suggested a dual strategy with proceedings in two jurisdictions depending on the parties. That of itself suggests it was recognised that claims between some parties had to be brought in the courts of England and Wales. The email does not intimate that claims which ATL was contractually obliged to bring in these courts would be pursued elsewhere.

iv)

On 19 May 2025, Mr Misselbrook sent Mr Brophy another email. This referred to breaches of the Confidentiality and Collaboration Agreements, to the instruction of UK solicitors on a CFA basis and to consultations with “McKool Smith LLP, a leading US trade secrets litigation firm” who were “currently reviewing the matter for representation”. Mr Misselbrook also stated that “we expect to proceed on that front imminently”. Against the background of the previous email, that would reasonably have been understand as a reference to claims in the US against Croda Inc rather than as between parties to the EJCs.

Croda Inc was served with the Delaware Proceedings on 11 July 2025. By 23 July 2025, the parties’ US lawyers had agreed to a 60-day extension for a response to the Complaint.

vi)

By 1 August 2025, the Croda Parties had instructed English and US lawyers and sent a letter before action. Despite promising a response by mid-August, the Agform Parties did not respond substantively to that letter until 9 September 2025.

vii)

The Croda Parties needed to lift the moratorium on proceedings against AL given its administration. An approach to the joint administrators having initially failed to procure consent. A court application was prepared and filed, with consent then being given on 16 August 2025. This application was issued the same day.

viii)

The listing of this application has followed from the available court resources, with the Croda Parties having sought an earlier listing.

39.

The suggestion that “Croda had over two weeks of normal Court term after issue of the Delaware Proceedings in which to issue an application and have it heard” does not address the issues raised by the moratorium and, in any event, is (with respect) wholly unrealistic as to the time which it would take to prepare the application and the court’s ability to hear it in what is always a period when there are particularly significant demands on the court’s resources.

40.

The second suggested “strong reason” is that granting relief will lead to fragmentation of claims (in circumstances in which, as will be apparent below, claims against Croda Plc and Croda Inc, and by Delsys against Croda Europe, will continue anyway). I accept that this will be the result of the ASIs. However, that outcome follows from (i) the terms in which the parties chose to contract, which expressly contemplated that confidential information might be provided by or to non-signatories, without seeking to bring claims by or against such parties within the agreed jurisdiction scheme and (ii) the Afgorm Parties’ decision to bring claims falling outside the EJCs in Delaware. The first of those points is made by Mr Misselbrook, who states that the terms of the Confidentiality and Collateral Agreements:

“support my belief that there is no assumption that the Croda and Agform parties would expect that all disputes between them would be resolved on forum ….”.

There are numerous cases which make it clear that appeals to the need to avoid the fragmentation of disputes will have limited traction when they follow inexorably from the contractual arrangements the relevant parties have put in place: see SCM Financial Overseas Ltd v Raga Establishment Ltd [2018] 2 Lloyd’s Rep 99, [66] and Nori Holding Ltd v Public Joint Stock Co [2019] Bus LR 146, [113].

41.

Further, in this case it is wholly unclear which Agform Parties have realistic claims against which Croda Parties, and which claims will be the most significant in financial terms. The parties between whom the contracts regulating the transfer of the relevant information were entered are, prima facie, the more obvious candidates in both regards, and it would not be appropriate lightly to deprive those parties of their agreed exclusive forum.

42.

Third, it is suggested that the balance of convenience between now and the final hearing justifies refusing to grant relief, because the Agform Parties face considerable cashflow difficulties. While the timing of any hearing for final relief will be a matter for the Judge in Charge of the Commercial Court, it is in my view realistic to proceed on the basis that this can be determined in six months. The Delaware Proceedings will proceed during that period as regards the other claims, and even if there is a delay in obtaining a final decision as between ATL/AL and Croda Europe in Delaware if a final ASI is refused, that prejudice can be compensated for by interest. The Croda Parties have offered an undertaking in damages, and placed group interim results before the court for the six months ending 30 June 2025 showing net assets of £2.231 billion and £157.8m of cash. By contrast, there is little to flesh out what disadvantage the Agform Parties will suffer from the fact that some of the claims in the Delaware Proceedings are injuncted for a six-month period.

43.

By contrast, if no injunction is granted, the Delaware Proceedings will continue, and the Delaware court will become more embroiled in a dispute which the English court may later be required to grant ASI relief in respect of and devote time and resources to those claims. The longer the proceedings in the foreign court continue, the greater the comity concerns engaged by the decision to grant ASI relief.

44.

For the same reasons, I can see no strong reason not to grant ASI relief against AgLLC on the “derived rights” basis (nor, had AL continued to bring claims against Croda Europe in the Delaware Proceedings, not to grant ASI relief against AL).