KB-2025-002427 - [2025] EWHC 1993 (KB)

The requirement for service of Affidavits

The competing arguments

The Claimant seeks an order requiring each of the Defendants to serve an Affidavit setting out the particulars listed in paragraph 14 of the draft order. D4 and D5 both opposed such an order being made.

Mr Northall KC submitted that the form of the order sought had been drafted in the circumscribed terms identified in Aon Ltd v JLT Renaissance Brokers Ltd [2010] IRLR 600 (“Aon”) and Le Puy Ltd v Potter [2015] IRLR 554. He argued that the information required was focused and proportionate. The Claimant would be unable to plead its case with precision as to what use its confidential information has been put to without such an order. The Claimant can prove that certain of the Defendants accessed the information. However, to fully plead its case, the Claimant needed to be able to identify to whom this information was conveyed to, and to what use it has been put. He argued that “the order will save costs: depending on the content of the affidavit there may be significantly saved costs in reduced scope for imaging orders and springboard relief”. That final point is of some significance to which I will return.

Mr Cobill and Mr Mahmood both relied on the fact that D4 and D5 have already served witness statements. They said that an Affidavit would add nothing and that it was a “fishing expedition” by the Claimant. Mr Cobill said that D4 had already signed witness statements verified by a statement of truth that placed him at risk of contempt proceedings if they contained a false statement. Why, he asked rhetorically, should D4 be placed at the risk of perjury in respect of an Affidavit.

Mr Mahmood submitted that the references to providing particulars in relation to any Confidential documents held at “any time” was unduly onerous.