Kieran Corrigan & Co Ltd v Bashir Timol

Primary liability for breach of confidence requires the defendant both to receive confidential information and actually to use it without consent. Once there has been actual use, liability does not depend on conscious plagiarism or awareness that the information is being used. A recipient is not, however, primarily liable merely because others independently misuse information which that recipient had also received.

Fresh evidence may be admitted on appeal where the applicable criteria are met and the interests of justice favour doing so. Material non-disclosure by the successful party strengthens the case for admission and a retrial where there is a real danger that the missing evidence influenced the result.

Kieran Corrigan & Co Ltd disclosed a proposed tax-planning structure to executives of OneE Group under a non-disclosure agreement. The group later developed, marketed and implemented the Nemaura structure. The High Court found that others had misused confidential information, but dismissed the breach of confidence claim against Mr Timol, a director whose role was found to be commercial rather than technical: [2023] EWHC 649 (Ch).

KCL appealed, contending that Mr Timol was strictly liable because he had received the information and approved the structure. It also sought to rely on documents disclosed only after trial, which it said showed that he knew more about both the structure and KCL’s complaint than had been apparent. The central issues were primary liability for breach of confidence and whether the fresh evidence required a retrial.

1. The appeal was allowed in part. The court dismissed Ground 1, holding that Mr Timol was not shown to have made any use of KCL’s confidential information when approving the structure. It admitted the fresh evidence, allowed Ground 3, and remitted the issue of Mr Timol’s liability to the High Court for retrial.

2. Primary liability for breach of confidence requires both receipt and use by the defendant. [1967] 1 WLR 923 and [2013] UKSC 31 establish that a recipient who actually uses confidential information may be liable even if that use is unconscious and the recipient does not appreciate its legal significance. They do not impose primary liability on a recipient for independent misuse by others.

3. The trial judge’s findings were that Mr Timol did not participate in the technical development of the Nemaura structure and approved it for commercial reasons without using KCL’s information. Those findings distinguished the case from Seager. The judge’s wording could have been clearer, but that was not a basis for appellate intervention.

4. Under Civil Procedure Rules 1998, CPR 52.21, fresh evidence is assessed using the Ladd v Marshall criteria and the overriding objective. The evidence must ordinarily have been unavailable with reasonable diligence, apparently credible, and likely to have had an important influence on the result. The court must then balance finality against achieving the right result.

5. The new documents met those criteria. They went to the heart of the factual findings about Mr Timol’s knowledge and involvement. Their non-disclosure created a real danger that the trial outcome had been affected. The retrial is confined to Mr Timol’s liability, with the unchallenged findings against the other defendants preserved; the existing quantum determination need not be relitigated against him.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 1233, dismissed the appeal on primary liability for breach of confidence, but admitted fresh evidence, allowed the appeal on the new ground, and remitted Mr Timol’s liability for retrial.
• High Court (Chancery Division): In [2023] EWHC 649 (Ch), dismissed the claims against Mr Timol for breach of confidence while finding other defendants liable for misuse of KCL’s confidential information.