KF 2024 010445 - [2025] EWHC 1584 (KB)

On behalf of the Respondents Mr Charlton mounted a full scale attack on the Letter of Request and the manner in which it was obtained, which he submitted gave rise to a threshold issue as to whether it should be aside for failure to give full and frank disclosure and which in any event should persuade the Court to exercise its discretion against the making of any order.

In particular Mr Charlton pointed to the Applicant’s failure to disclose;

Mr Charlton submitted that all of the above matters go to the root of the application and cannot be dismissed as matters of ‘borderline’ relevance and as such my Order should be set aside.

Mr Charlton then went on to make detailed submissions in relation to each of the requests contained in Attachments A and B to the Letter of Request. For reasons which will become clear I will only set out his submissions in relation to the first three Requests under Attachment A.

Request 1 required the production of, “Complete copies of the portions of the Showroom Visualizer software relating to Topalsson’s DTE and VARY software that were added in March 2020 or later, including executables, the underlying source code, accompanying release notes, and the passwords required to access encrypted portions of the Software.”

Mr Charlton identified four reasons why the Request should be set aside. First, it proceeds on the false assumption that there are portions of the “Showroom Visualizer”relating to Topalsson’s DTE or VARY software; i.e. that such software has been copied, incorporated or used in or for the purposes of developing the “Showroom Visualizer”. He submits that this is simply not the case. Second, the word “portion”and the phrase “relating to”(or “corresponds to”) are extremely vague and imprecise and wholly lacking in the particularity required by s.2(4)(b) of the 1975 Act. Third, the fundamental problems identified in the previous two paragraphs are magnified and exacerbated by the multiplicity of defined terms in Request 1 in that the defined terms refer to open-ended categories and sub-categories of software, documents and artefacts which are included, qualified and then excluded. He submitted, the result is an incomprehensible mass of uncertainty which requires the reader to guess what is to be inspected and disclosed and, having guessed, requires new documents to be created containing ‘portions’. The relevance of the documents introduced by these definitions is nowhere explained. Fourth, by reason of the first three reasons the Request is oppressive.

Request 2 required production of, “Complete copies of the portions of the RROC software relating to Topalsson’s DTE and VARY software that were added in March 2020 or later, including executables, the underlying source code, accompanying release notes, and the passwords required to access encrypted portions of the Software.”, and Request 3 required production of ‘Complete copies of the portions of the Web Configurator software relating to Topalsson’s DTE and VARY software that were added in March 2020 or later, including executables, the underlying source code, accompanying release notes, and the passwords required to access encrypted portions of the Software.”

Mr Charlton submitted that Requests 2-3 suffer from the same issues as Request 1 and are, additionally objectionable because they concern the Web Configurator and RROC, when neither is identified in the US Complaint and both involve other suppliers also not criticised in the US Complaint.

Lastly, Mr Charlton submitted that to the extent that any order is made any actions required by either Respondent should be conditional upon;