Hyperama Plc v Poulis & Anor

Without-notice relief is exceptional. Notice may be dispensed with where it would enable the defendant to defeat the purpose of the injunction, but the court must confine the hearing to relief requiring that approach.

A doorstep delivery-up order requires a high degree of assurance in the claim, very serious potential damage, clear evidence that relevant documents are held by the defendant, a real possibility of destruction before an inter partes hearing, and proportionality between the order and its legitimate aims. The order should be less intrusive than a search order and limited to what is necessary to preserve evidence.

Hyperama plc sought without-notice interim relief against two senior employees. It alleged misuse of confidential information, breaches of contractual obligations and dishonest diversion of secret profits. The principal application was for delivery-up of electronic documents at the defendants’ doorsteps, together with orders concerning confidentiality, restrictive covenants and communications about the proceedings.

The court considered whether notice would defeat the purpose of the proposed relief, whether the evidence justified a doorstep delivery-up order, and whether a wider search order or gagging order was warranted.

1. Without-notice application. Rule 25.3 of the Civil Procedure Rules 1998 permits an interim remedy without notice only where there are good reasons. Applying National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16, notice may be dispensed with where it would enable the defendant to defeat the purpose of the injunction. The court should hear only those parts of the application for which proceeding without notice is justified. Orders prohibiting use or disclosure of confidential information and enforcing restrictive covenants required an inter partes hearing and were not made.
2. Doorstep delivery-up order. The order was a less intrusive variation of a search order. Having regard to Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, the court required:
   1. a high degree of assurance that the claims would succeed at trial;
   2. very serious potential or actual damage;
   3. clear evidence that the defendants possessed incriminating documents;
   4. a real possibility that the material would be destroyed before an inter partes hearing; and
   5. proportionality between the relief and its legitimate aims.
3. The court did not conduct a mini-trial or make findings of fact, but assessed the strength of the evidence and its documentary support. The evidence established a high degree of assurance in claims concerning misuse of confidential information and breaches of obligations of fidelity. It also established potentially very serious commercial damage, possession of electronic material and a sufficient possibility of destruction, particularly in light of evidence of fraud and deletion of electronic data.
4. Following the graduated and proportionate approach in Lock International plc v Beswick [1989] 1 W.L.R. 1268, the court refused to make a search order. The evidence did not justify entering premises or searching hard-copy documents. A strictly limited doorstep delivery-up order was proportionate because it preserved electronic evidence without permitting entry, searches or inspection before a further inter partes order.
5. The doorstep delivery-up injunction was granted. A provision preventing one defendant from alerting the other was made. A wider gagging order was refused because there was no proper evidential basis showing serious consideration of additional defendants, a serious risk of evidence being lost, and proportionality.