HT-2021-000363 - [2025] EWHC 998 (TCC)

ICA Programs

It is common ground (as set out in the Defendants’ skeleton as to the form of order at paragraph 18) that the Second Defendant will submit to an order not to make any further use of the ICA Programs and for delivery up/destruction of the ICA Programs and associated equipment, subject to preservation of all materials pending final disposal of the proceedings in this jurisdiction and the proceedings in Texas, USA. Further, it is agreed that the Second Defendant should be permitted to instruct its solicitors to carry out and facilitate searches and disclosure for the purpose of such proceedings. Mr Liebenberg, Senior Solutions Engineer of the Second Defendant (formerly Quality Assurance Engineer of the Third Defendant), set out in his witness statement the steps taken to decommission the mainframe, data and other infrastructure, now held by Azamour Solutions Limited. Paragraph 2 of the draft Order is agreed, subject to the following points.

First, the definition of “ICA Program” is not agreed. In line with the findings in the Judgment at [161]-[175], Paragraph 1(1) of the Order should read:

““ICA Program” shall mean any program in the Agreed List of ICA Programs licensed to the Second Defendant annexed to this Order, including, for the avoidance of doubt, any constituent part thereof.”

Second, the parties disagree on the words used in Paragraph 2(3). The words “the aforesaid” (and not “these”) should be inserted before “proceedings” in lines 1 and 5 to clarify that reference is to the proceedings defined in Paragraph 2(1).

In line with the findings of wrongful procurement of breach in the Judgment at [845]-[936], particularly in circumstances where the Second Defendant has not yet delivered up all copies of ICA Programs, Paragraph 3 of the Order should read:

“Each of the First and Sixth Defendants shall be prohibited from procuring directly or indirectly any further use by the Second Defendant of any ICA Program.”

Following the findings of technical breaches in the Judgment (see summary at [838]-[844]) and termination of the ICA at [980]-[987], I reject the Defendants’ submission that the scope of the orders for delivery up of the ICA Programs should be limited to those parts that were the subject of the transfer breaches or await 90 days after the final disposal of the UK and US proceedings. The definition of “Relevant Material” in Paragraph 1(2) should be deleted and Paragraph 4 of the Order should read:

“Each of the First Defendant, Second Defendant and Sixth Defendant shall by 16 July 2025 deliver up to the Claimant, or instruct Azamour (or another independent third-party custodian agreed by the parties or determined by the Court if not agreed) to destroy, all copies of any ICA Program in their possession or control, save that:

(1)

Destruction of ICA Programs by the Second Defendant is subject to paragraph 2 above.

(2)

Each of the First and Sixth Defendants may provide a copy of any ICA Program in their possession or control to Azamour (or another independent third-party custodian agreed by the parties or determined by the Court if not agreed) for safekeeping, to be held on the same basis as the Archive Copies are held as set out in paragraph 2 above.”

Given the nature and extent of the technical breaches found, the period over which they occurred and the findings of deliberate concealment in the Judgment at [1022]-[1072], the Claimant is entitled to an order that the destruction of copies of ICA Programs should be supervised by an independent forensic IT firm as set out in its draft of Paragraph 5 of the Order:

“The destruction of copies of ICA Programs by the First Defendant, Second Defendant and Sixth Defendant shall be supervised by an independent forensic IT firm. The instructions and identity of said firm shall be agreed by the parties or appointed by the Court if not agreed and following submissions by the parties. The costs of said firm shall be borne by the relevant Defendants.”

There is agreement in principle that there should be certificates confirming compliance with the order for destruction. Given that there has been a ten-week trial at which all parties had full opportunity to address any relevant factual inquiries, I consider that the additional order sought by the Claimant, requiring further information as to any others who possess, or have possessed, the ICA Programs is unnecessary, potentially oppressive and insufficiently clear. Paragraph 6 of the Order should read:

“Each of the First Defendant, Second Defendant and Sixth Defendant shall, within 30 days after destruction as set out in paragraphs 4 and 5 above, provide a sworn statement (in the case of the corporate defendants, acting through an appropriate officer or director) confirming compliance with paragraph 4 above and providing a full list of all ICA Programs delivered up or destroyed (as the case may be).”