INHEALTH PATHOLOGY LIMITED & Ors. v DR STEVAN FOX & Ors.

On an application for strike-out or summary judgment, the court must consider the pleaded case as a whole. A claim is not confined to the particular allegation selected by the applicant where other properly arguable causes of action remain.

Information may possess the necessary quality of confidence even if assembled from publicly accessible materials, where human skill and ingenuity have produced something new, and where the information is not readily accessible in the relevant industry. At an interim stage, the court should ordinarily leave difficult questions of confidentiality to trial where there is a real prospect of establishing the claim.

Pleading non-confidential material as confidential may constitute an abuse of process. The court may strike out only the abusive part while permitting the balance of the claim to continue.

The claimants, companies in the InHealth group, sued former employee and director Dr Fox and companies including the third defendant, Remedy Healthcare Solutions Ltd, alleging unlawful means conspiracy, inducement or procurement of breaches of duty, breach of confidence and breaches of the Trade Secrets (Enforcement etc) Regulations 2018.

The third defendant applied under Civil Procedure Rules 1998, rules 3.4(2) and 24.2, contending that the claim was founded on information which lacked confidentiality and should not proceed. The central issues were whether the pleaded case extended beyond confidential information, whether the claimants had a real prospect of establishing confidentiality in elements of the Endo 3 project and Bristol Plan, and whether parts of the pleading amounted to an abuse of process.

1. Application largely dismissed. The claim against the third defendant was properly arguable beyond the narrow case based on confidential information about the Endo 3 project and the 2020 Design. The pleaded common design extended to diversion of business opportunities, recruitment and other alleged breaches of duty. The claim therefore had a real prospect of success even if some information were not confidential ([38]–[44]).
2. The court applied the three elements in Coco v A.N. Clark (Engineers) Ltd: the information must have the necessary quality of confidence; it must have been imparted in circumstances importing confidence; and there must have been unauthorised use to the communicating party’s detriment ([29]). The claimants had a real prospect of establishing the second element and supporting matters relevant to the first ([36]–[37]).
3. The court held that the claimants had a real prospect of establishing confidentiality in significant aspects of the Endo 3 project, including design and structural engineering work, the application of technical and accreditation requirements, features not readily accessible to the public, and supplier pricing. Public availability of constituent materials did not necessarily defeat confidentiality where skill and ingenuity had produced a new combination or product ([50]–[54]).
4. The seven features said to have been incorporated from the Bristol Plan lacked the necessary quality of confidence when considered individually or collectively. However, the allegation remained relevant to the pleaded case that non-confidential information had been unlawfully transmitted and as evidence of copying ([55]–[58]).
5. Pleading the word “confidential” in relation to paragraph 40 of the Amended Particulars of Claim had no real prospect of success and was an abuse of process. Applying the approach in In Soo Kim v Youg Geun Park, the court distinguished striking out one word from striking out the whole claim. It struck out that word without giving directions for re-amendment, while leaving the wider claim intact ([58]–[60]).

Save for that limited amendment, the application failed ([61]).