Arthur J Gallagher Services (UK) Ltd And Ors v Alexandre Skriptchenko And Ors

Interim mandatory relief may be granted where the court identifies the course carrying the least risk of injustice if its assessment later proves wrong. A high degree of assurance that the claimant will establish its right is relevant, but relief may still be justified where refusing it creates a materially greater risk of injustice.

The court may order delivery up, imaging, forensic searching and deletion of confidential information from electronic devices. Such relief must be proportionate and include safeguards preserving disputed or wrongly deleted material and protecting the defendants’ confidential information.

The claimants, companies in the Arthur J Gallagher group, sought interim mandatory relief in proceedings alleging that the defendants had taken and misused confidential business information. Earlier consent orders had required delivery up, forensic examination and disclosure. Subsequent disclosure indicated wider involvement and use of information concerning two business areas.

The outstanding application sought delivery up, imaging and searching of the defendants’ computers and devices, together with deletion of material belonging to the claimants or derived from it. The central issues were whether such intrusive relief was available at an interlocutory stage, whether it was necessary, and what safeguards should govern its implementation.

1. Applicable principles. The court applied the principles for an interim mandatory injunction stated in Nottingham Building Society v Eurodynamics Systems [1993] FSR 468, as approved in Mercury Communications Ltd on 27 August 1997. The overriding consideration was which course involved the least risk of injustice if wrongly decided. A high degree of assurance that the claimant would establish its right was relevant, but relief could still be granted where the risk of injustice from refusal outweighed the risk from granting it.
2. The court also applied the American Cyanamid principles. The claimants had shown a strong case that the defendants had taken and used confidential information. Damages were inadequate, and the claimants could meet their cross-undertaking in damages.
3. The defendants’ conduct created a real risk of further use. Self-searching and deletion were insufficient safeguards. Delivery up, imaging, forensic searching and destruction of confidential material on the defendants’ devices were necessary.
4. The order protected both sides. An external expert appointed by the defendants was to conduct the search. Images and removed material were to be preserved. Agreed confidential material was to be deleted from the devices. Disputed material was to remain unavailable to the defendants pending determination by the court or an agreed arbitrator.