Porton Capital Technology Funds & Anor v 3m UK Holdings Ltd & Anor

A party may interview an opponent’s employee or former employee, but neither the witness nor the interviewing party may disclose or seek information protected by a duty of confidence. Disclosure of documents for litigation does not generally release a witness from that duty. The receiving party may use disclosed documents for the action, subject to Civil Procedure Rules rule 31.22.

Fairness and equality of arms do not ordinarily justify overriding confidentiality obligations. A confidentiality club is exceptional. It may be ordered where justice requires additional protection beyond the ordinary restrictions on use of disclosed documents, while preserving a party’s ability to understand and present its case.

The claimants sought orders permitting them to interview two former employees of the defendants’ subsidiary about the development and marketing of a medical diagnostic product. The individuals were willing to assist but remained concerned about contractual confidentiality obligations.

The claimants argued that disclosure had removed confidentiality between the parties, or alternatively that the defendants should waive the obligations as a condition of obtaining a confidentiality club order. The defendants sought a confidentiality club for commercially sensitive disclosed documents. The issues were whether disclosure altered the witnesses’ duties, whether fairness justified a waiver or stay, and whether a confidentiality club should be ordered.

1. Witness confidentiality. There is no property in a witness. A party may approach an opponent’s employee or former employee, but may not seek, and the witness may not provide, information which the witness owes a duty to keep confidential. If called to give evidence, the witness may be required to answer relevant questions, subject to privilege and the court’s control.
2. Effect of disclosure. Disclosure does not generally alter a duty of confidence owed by an employee or former employee. The receiving party may show disclosed documents to a potential witness and use them for the purposes of the action, but the witness may still be unable to answer questions whose answers would breach a separate duty of confidence. China National Petroleum v Fenwick Elliott and Techint International [2002] EWHC 60 (Ch) was explained as a case of waiver on its particular facts, not authority for a general release of witnesses from confidentiality.
3. Fairness and conditions. The overriding objective, including equality of footing and fairness under Civil Procedure Rules rules 1.1(2)(a) and 1.1(2)(d), did not justify compelling the defendants to waive the witnesses’ obligations. A stay might be available where a fair trial could not otherwise occur, but that threshold was not met here. Nicholson v Halton General Hospital NHS Trust [1999] PIQR 310 concerned a narrow and materially different stay.
4. Confidentiality club. Such orders are exceptional, but may be made where justice requires protection beyond the ordinary restrictions on use of disclosed documents. Applying the principles approved in Roussel Uclaf v ICI [1990] RPC 45, the court balanced the nature of the information, the parties’ positions and the extent of disclosure. A club was ordered, including intended or contemplated factual and expert witnesses. Experts had to provide signed undertakings in advance. The order did not determine that any particular document was confidential and did not govern the trial, leaving the trial judge to make any necessary order.