Caterpillar Logistics Services (UK) Ltd v Huesca De Crean

An employer seeking to restrain a former employee must identify the confidential information with sufficient precision, establish that it is information capable of protection, and limit the restraint to the period for which confidentiality or an unfair advantage is likely to continue. Relief must be proportionate to the threat to the employer's legitimate interests. The exceptional jurisdiction recognised in Prince Jefri Bolkiah v KPMG applies in its fiduciary and administration-of-justice context; it does not ordinarily justify barring an employee from working for a customer. Interim relief should not be used to obtain the practical equivalent of final relief without a proper assessment of the merits. Failure to serve Particulars of Claim within the CPR timetable, without evidence justifying an extension, may constitute an abuse of process.

The claimant logistics company sought interim injunctions against a former employee who had joined an important customer. It alleged that she possessed confidential commercial information and would use or disclose it, and sought both confidentiality restraints and a barring order preventing her from undertaking work connected with the customer relationship.

The employee had no restrictive covenant. She gave undertakings concerning confidential information and certain dealings, but the claimant sought wider and unlimited relief. The application also raised issues concerning delayed service of Particulars of Claim and extensions of time under the Civil Procedure Rules.

1. Application dismissed. The interim injunction application failed independently on several grounds.
2. The contractual confidentiality term was too wide to enforce. It included information forming part of the employee's general skill, knowledge and experience, which she was entitled to use after employment. The claimant had a triable issue concerning some trade secrets, but was unlikely to establish that all the information claimed was protectable.
3. An injunction must make clear what information it protects. Generic descriptions, references to historic financial information without a defined period, and an undefined description of commercial and legal strategy did not satisfy that requirement. The proposed proviso concerning information which had ceased to be confidential was also impermissibly vague.
4. A restraint should not normally extend beyond the period during which the information remains confidential or an unfair advantage continues. The claimant had specified no period and offered no evidence justifying one. A time limit could not be supplied by implication where the contractual term contained no such limit.
5. The relief sought also had to be proportionate. The claimant had not produced sufficient evidence concerning the allegedly privileged legal advice to enable the court to assess the risk, duration of confidentiality or appropriate remedy.
6. The Prince Jefri Bolkiah v KPMG jurisdiction did not support a barring order. Its ratio concerned a former solicitor or analogous professional fiduciary relationship, in the context of protecting the administration of justice. Although an employee may be a fiduciary in respect of specific confidential information entrusted to her, the ordinary employer–employee relationship is not ordinarily analogous to that relationship. In any event, the employee's record, undertakings and the risk of inadvertent misuse made the proposed order disproportionate.
7. Where refusal or grant of interim relief would effectively dispose of the action, the court should assess the likelihood of success at trial rather than apply the ordinary American Cyanamid approach mechanically. The evidence did not establish a sufficiently strong case of wrongdoing or copying and retention of confidential information.
8. The claimant's failure to serve Particulars of Claim within the period required by the CPR, and its unsupported requests for substantial extensions, was an abuse of process. The overriding objective required the court to consider the need for an extension on the evidence and to avoid unnecessary interference with the customer's rights.
9. The undertakings given on 16 September 2011 lapsed and were no longer in force. The claimant remained free to pursue any claim for damages.