Corbiere Ltd v Ke Xu

The court may order pre-trial disclosure to support protection of confidential information, identify recipients, and preserve the effectiveness of relief at trial. A passport or restraint order may be granted where it is reasonable and necessary to support the court’s functions, but the restraint must be proportionate and no longer than necessary. The court must balance the claimant’s need for effective relief against the defendant’s liberty and other interests. A restraint order made under the civil procedure rules does not necessarily engage or vindicate a right under Article 6 of the Convention. The court left open whether Article 6 may be engaged on some other basis.

The claim arose from the alleged misappropriation by Ke Xu of confidential information belonging to Corbiere Ltd and related companies. The claimants sought pre-trial disclosure concerning the location and dissemination of the information, together with an order restraining Mr Xu from leaving the jurisdiction and requiring him to surrender his passport.

The Secretary of State for the Home Department intervened on issues concerning Mr Xu’s proposed deportation and the claimants’ Article 6 rights. The central issues were whether the disclosure and passport orders were justified, whether restraint should continue until trial, and whether making such orders necessarily engaged the claimants’ Article 6 rights.

1. Disclosure. The court held that Civil Procedure Rules 1998, r.25.1 conferred a wide power to order pre-trial disclosure. The power may support an injunction concerning confidential information, preserve property potentially subject to delivery-up, or identify third parties to whom information has been passed. The claimants had a strong prima facie case, supported by the criminal convictions and the absence of evidence rebutting the statutory presumption. Disclosure was necessary to protect their rights and prevent the substantive relief from being rendered nugatory.
2. The criminal and civil proceedings served different ends. The fact that substantially similar disclosure had been sought under a Serious Crime Prevention Order did not prevent the claimants seeking disclosure in the civil proceedings. The possibility of future committal proceedings did not arise at this stage. The court also found a real risk of substantial commercial harm despite the passage of time.
3. Passport order. Applying the principles in Bayer v Winter AG and Kuwait Airways Corporation v Iraq Airways Co, the court balanced the harm to Mr Xu against the harm to the claimants. The order had to be reasonable and necessary in support of the court’s functions, proportionate, and limited to the period necessary to secure compliance.
4. The narrower order was justified. The claimants had a strong case, there was a real risk of exploitation of the information, and Mr Xu’s departure would seriously impair enforcement of the disclosure order. He was therefore restrained from leaving the jurisdiction and required to surrender his passport until compliance. Applying the principles identified in Young v Young, the broader order lasting until after trial was refused because it was unnecessary and the claimants had not established material prejudice at trial.
5. Article 6. The court rejected the submission that a civil restraint order necessarily engaged the claimants’ Article 6 rights. Wierzbicki v Poland concerned a pre-existing right to present evidence and did not establish that an order requiring a party to remain within the jurisdiction necessarily engaged Article 6. The precise scope of any Article 6 right to require such restraint was left open.