RED BULL TECHNOLOGY LIMITED v DAN FALLOWS

Specific disclosure must be shown to be relevant and necessary for the fair disposal of the issues or to save costs, consistently with the overriding objective. Comparator evidence will have real cogency only where the comparator’s circumstances are materially the same. Relevant factors may include contractual terms, access to confidential information, time remaining under the contract, the timing of departure, the proposed role with a rival, and any negotiated or wider commercial context. A broad search covering numerous employees over several years may properly be refused where it is unlikely to produce probative material and risks trials within trials.

The claimant sought declarations concerning the continuing force and enforceability of the defendant’s employment contract. The defendant counterclaimed, including allegations of constructive dismissal and that the contract’s minimum term was an unlawful restraint of trade. Before trial, the defendant applied for specific disclosure concerning other employees said to be comparators. The claimant applied to amend its pleading, and the amendment was unopposed.

The central issue was whether the proposed comparator searches were sufficiently relevant and necessary to justify specific disclosure, having regard to proportionality, fairness, confidentiality, the expedited trial timetable and the issues arising from the defendant’s individual contract and circumstances.

1. The amendment application. The claimant was permitted to delete the relevant sentence from its pleading, so that it no longer advanced a positive case that it invariably held employees to their minimum terms.
2. Applicable disclosure test. Following Santander UK plc v Bharaj [2021] ICR 580, the applicant bears the onus of showing that the documents may well assist one party or the other, that disclosure is necessary for the fair disposal of the issues or to save costs, and that the order accords with the overriding objective, including relevant considerations such as confidentiality.
3. Comparator evidence. Comparisons could potentially be relevant, but their real cogency depended on materially comparable circumstances. The assessment might require consideration of the comparator’s minimum term, access to confidential information, the time remaining under the contract, when departure arose, the proposed work for the rival, and any negotiated departure or wider commercial context.
4. The proposed searches were too broad. They covered a lengthy period, a cohort including employees below the defendant’s level, and individuals regardless of the similarity of their contractual terms or circumstances. The material was unlikely to establish differential treatment for no rational reason, was marginal at best on the restraint of trade issues, and risked generating further disclosure, evidence and trials within trials.
5. The expedited nature of the trial could not justify refusing disclosure necessary for a fair trial. However, the issues could fairly be tried without the proposed searches. The defendant’s application for specific disclosure was therefore refused.