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

Fecha: 30-Sep-2025

The background

The background

The first claimant (“Croda Europe”) is a company incorporated in England and Wales, and the (indirectly) wholly-owned subsidiary of the second claimant (“Croda Plc”). Croda Plc in turn is the parent of the third claimant (“Croda Inc”), a Delaware corporation.

The Agform parties comprise three companies incorporated in England and Wales – the first defendant (“AL”), the second defendant (“ATL”) and the third defendant (“Delsys”) – and a company incorporated in Delaware, the fourth defendant (“AgLLC”). Mr John Misselbrook is the sole director of AL and holds 50% of AL’s shares.

In late 2023, there were discussions between Croda Europe and Mr Misselbrook concerning collaboration in relation to certain technology of which Mr Misselbrook is the inventor (“the Envelop Technology”).

On 5 January 2024, in the context of those discussions, AL and Croda Europe entered into a letter agreement to which I shall refer as “the Confidentiality Agreement”:

The first paragraph stated that the Confidentiality Agreement was put into place because AL and Croda Europe “wish to disclose certain confidentiality and proprietary information to each other”.

ii)

The Confidentiality Agreement addressed disclosure by either party of information confidential to it or confidential to any of its Related Persons (given the words “information made available by the Discloser or any Related Persons”), albeit in both cases it was the Discloser (i.e. a contracting party) who was to disclose the information (clause 2). “Related Persons” was defined as including “its associated companies, subsidiary undertakings, parent undertakings, directors and employees”.

iii)

It provides that the Recipient must make its Related Persons aware of the Recipient’s obligations, and require them to comply with those obligations “as though they were a party to this letter”, with the Recipient being responsible for any failure of recipients to observe those terms. Significantly, the Confidentiality Agreement does not contemplate the Related Persons whose confidential information is handed over or to whom confidential information received from another party is handed over will be parties to the Confidentiality Agreement, a feature reinforced by clause 13.

iv)

Clauses 2 to 10 then made provision for obligations of confidentiality and their consequences. By clause 2(f) when Croda Europe or AL disclosed information to the other (for which purpose they were a “Discloser” and the other “a Recipient”), the Recipient undertook to:

“give all assistance reasonably required by the Discloser to enable the Discloser to prevent any improper use of the Confidential Information by any Related Persons of the Recipient”.

Clause 13 excluded the operation of the Contracts (Rights of Third Parties) Act 1999.

vi)

Clause 14 provided for the application of English law and that “the parties agree to submit to the exclusive jurisdiction of the English courts”.

On 7 March 2025, ATL and Croda Europe entered into a further agreement (“the Collaboration Agreement”).

The Collaboration Agreement referred to the parties as “Agform” and “Croda”.

ii)

It stated (wrongly, it would seem) that ATL was the owner of the patent application which had in fact been assigned to Delsys in September 2023, although no legal consequences were identified as flowing from this.

iii)

The recital stated that Croda wished to evaluate the patent application with a view to potentially entering into an agreement to utilise the patent.

iv)

The Collaboration Agreement contains similar definitions (including the Related Person provisions) as to what constitutes “confidential information” and regulating the position where the Recipient provides it to its Related Persons, and includes the same obligation in clause 2.3(f) for each Recipient to “give all assistance reasonably required by the Discloser to enable the Discloser to prevent any improper use of the Confidential Information by any Related Persons of the Recipient”.

Clause 2 provided for obligations of confidentiality and clause 5 intellectual property rights.

vi)

Clause 8.1 excluded the operation of the Contracts (Rights of Third Parties) Act 1999.

vii)

Clause 8.2 provided for the application of English law and that the parties agreed “to submit to the exclusive jurisdiction of the English courts”.

Information was provided to Croda Europe pursuant to the Confidentiality Agreement and the Collaboration Agreement and evidence would seem to suggest that this information was accessed by various individuals on the Croda-side.

On 6 June 2024, AL appears to have assigned its “right, title and interest” in certain patents to Delsys for £1. The rights assigned included “all rights, power and entitlements arising or accruing to any of the rights, property and interest assigned by this Assignment” including the right to bring proceedings “in respect of any … cause of action arising from ownership of the Patents, whether occurring before, on or after the date of this assignment.” That agreement is subject to English law and exclusive English jurisdiction.

10.

On 9 September 2024, it would appear that Delsys licensed certain patents it owned to ATL. This agreement was said to be governed by “United Kingdom law” and did not contain a choice of forum clause.

11.

On 9 October 2024, ATL (through Mr Misselbrook) gave notice of ATL’s decision to terminate the Collaboration Agreement. There was subsequent correspondence from Mr Misselbrook on behalf of ATL relying on the rights arising under both agreements including communications from ATL alleging breaches of both agreements.

12.

AL entered into administration on 22 May 2025, with its Statement of Affairs suggesting it is heavily insolvent.

13.

AgLLC was incorporated five days after AL went into administration. Mr Misselbrook is the sole owner and controller of AgLLC. Documents have been provided to the court in relation to AgLLC as follows

A “Short Form Intellectual Property Licence Agreement” between Delsys and AgLLC which licences the Envelop Technology.

ii)

An “Assignment and Enforcement Consent Clause” between ATL and AgLLC, clause 2 of which provides “[AgLLC] may …. enforce any and all rights relating to [the Envelop Technology] against third parties (including Croda Inc, Croda International Plc or their affiliates)”.

14.

The court has also been provided with correspondence exchanged between Mr Misselbrook and an anonymised potential business partner (or partners) in May and June 2025 which Mr Misselbrook says provided the business context for the incorporation of AgLLC and the conclusion of these agreements.

15.

There is a factual dispute as to whether AgLLC was formed for the purpose of evading the EJCs. At the moment, it is not easy to see how it could have served such a purpose. AgLLC acquired rights from ATL (and would, on conventional principles, be subject to any EJCs conditioning those rights when seeking to assert them). Further, Mr Misselbrook has provided an explanation, with some contemporaneous documentary support, of why AgLLC was formed at this time (namely ongoing commercial projects in which it may have assisted him to have a US company). On the material before me, I am not persuaded that there is a sufficiently arguable case that the formation of AgLLC was undertaken with a view to avoiding the EJC in the Confidentiality Agreement or the Collaboration Agreement.

16.

On 10 July 2025, the Agform Parties commenced proceedings against the Croda Parties in the United States District Court for the District of Delaware (“the Delaware Proceedings”). The complaint filed (“the Complaint”):

brings claims under the US Federal Defend Trade Secrets Act and the Delaware Uniform Trade Secrets Act;

ii)

fails to differentiate between the positions of the Croda Parties and the Agform Parties for the purpose of explaining the claims;

iii)

advances allegations of the misuse of information which appears to have been provided under the Confidentiality Agreement and the Collaboration Agreement.

17.

It is not clear on what basis proceedings were commenced in the name of AL, which is in administration. After this issue was raised with the administrators, AL filed a “Notice of Voluntary Dismissal Without Prejudice” in the Delaware Proceedings. It has since given an undertaking not to seek to revive those proceedings “until final judgment or further order in the ASI”. While AL did not appear before me, any claims by it in the Delaware Proceedings would raise essentially the same issues as those relating to ATL’s claims, and in those circumstances I have considered the effect of the Confidentiality Agreement as well as the Collaboration Agreement. This is also necessary to address the position of AgLLC as an assignee from AL.

18.

Against this background, the Croda Parties seek ASI relief:

by Croda Europe against AL and ATL, on the contractual basis that the Delaware Proceedings breach the Confidentiality Agreement and Collaboration Agreement EJCs;

ii)

by the other Croda Parties against all the Agform Parties (save for AL following its withdrawal from the Delaware Proceedings and agreement not to re-file “until further order”), and by Croda Europe against Delsys and AgLLC, on the basis that the Delaware Proceedings are vexatious and oppressive.