Warm Zones v Thurley & Anor

For a mandatory interim injunction, the overriding consideration is which course carries the lower risk of injustice if the order later proves wrong. The court may consider the claimant’s degree of assurance of success, but a high degree of assurance is not essential where the risk of refusing relief sufficiently outweighs the risk of granting it. In disputes concerning confidential information, the court applies the ordinary requirements for breach of confidence and gives weight to the information’s quality, the circumstances of communication and the alleged unauthorised use. A focused imaging and inspection order may be granted where justified, subject to safeguards for privileged and third-party confidential material.

The claimant sought urgent mandatory interim relief against two former employees. It alleged that they had used or disclosed a proprietary customer database and related information while employed by the claimant and in dealings with a competitor. The defendants denied misuse, contended that the information was publicly available or belonged to a local authority, and resisted imaging and inspection of their computers. They accepted affidavit and delivery-up requirements but argued that computer inspection would be a fishing exercise and might expose privileged or third-party material. The central questions were whether there was a serious issue to be tried, whether the claimant had a high degree of assurance of success, and which course carried the least risk of injustice.

The application was granted in principle. The court ordered the mandatory imaging and inspection relief sought, subject to safeguards for legally privileged material and confidential information belonging to third parties.

1. Applicable interim test. Because the relief required positive steps, the court applied the least-risk-of-injustice approach for mandatory interlocutory injunctions. The court considered the claimant’s prospects, the relative risks of granting or refusing relief, and the adequacy of damages and the cross-undertaking.
2. Serious issue. The evidence supported a serious issue that the claimant had a unique proprietary database, created with substantial resources, containing commercially valuable information not readily available in the public domain. The employment contracts imported obligations of confidentiality. The emails and other material provided cogent prima facie evidence of possible misuse or disclosure. The defendants’ explanations required evidence tested at trial.
3. Prospects and confidentiality. The court had a high degree of assurance concerning the strength of the claim, particularly allegations concerning conduct during employment. The more difficult question whether post-employment use involved trade secrets or equivalent information was left for trial. During employment, copying or using customer lists or database information for later use could breach the employee’s duty of good faith.
4. Balance and safeguards. Damages were unlikely to be adequate, the claimant could provide a sound cross-undertaking, and the order did not restrain the defendants from working in competition. It was focused on securing confidential information. Independent inspection, claimant-funded, and safeguards for privilege and third-party data reduced the risk of injustice.

The precise form of the order was to be settled after submissions and discussion between the parties.