Dellner Woodville Ltd v Blackham

An order requiring a defendant to provide evidence of alleged wrongdoing is an exceptional remedy. It must not be granted routinely or as a matter of course alongside prohibitory injunctions. Special circumstances are required. The claimant must ordinarily identify the facts and legal basis of its claim itself. The court should not require a defendant to assist in formulating the claimant’s case by disclosing evidence which the claimant has not otherwise obtained. The jurisdiction is fact-sensitive, and authorities are useful chiefly where they establish clear principles.

The claimant’s former managing director copied substantial material from a work computer to personal devices before and after leaving employment. The claimant alleged that material belonging to it had been retained and sought delivery-up, preservation and confidentiality orders. The defendant accepted the appropriateness of those orders.

The dispute concerned additional provisions requiring the defendant to swear an affidavit giving extensive details of his use, disclosure, copying and distribution of the claimant’s material, together with minimum summaries if compliance was onerous. There was no evidence that he had misused any material, and much of the material covered by the proposed definition was neither confidential nor outside the public domain. The central issue was whether the exceptional disclosure jurisdiction should be exercised.

1. Application partly granted. The court made orders corresponding to paragraphs 3, 4, 5 and 8 of the draft order, requiring delivery-up, preservation of listed property and non-use or disclosure of confidential information. The proposed affidavit and summary requirements in paragraphs 6 and 7 were refused.
2. The jurisdiction to require a defendant to provide an account of possible wrongdoing is exceptional. It is not exercised routinely or as a matter of course merely because prohibitory injunctions are sought. Special circumstances must justify the order. The judge approved the approach in AON Ltd v JCT Reinsurance Brokers Limited [2009] EWHC 3448 (QB), reported at 2010 Industrial Relations Law Reports 600, including the observation that such applications are fact-sensitive and that the relevant considerations are not exhaustive or invariably applicable.
3. The purpose of the proposed provisions was, in substance, to obtain through the defendant evidence of misuse which the claimant had not discovered itself. That was inappropriate. In the ordinary case, a claimant must identify the facts and legal foundation of its claim; the defendant should not be required to formulate or advance that case for the claimant.
4. The circumstances supplied no special justification. Despite the passage of approximately eight months since notice of resignation, the defendant’s move to a competitor and the claimant’s investigation, there was no evidence that he had used the retained material. The suggested possibility of delayed or gradual misuse was unrealistic. The affidavit provisions, or any proposed variation of them, were therefore refused.