Playtech Software Limited v Games Global Limited & Ors

Permission to amend and serve out of the jurisdiction requires: a serious issue to be tried on the merits; a good arguable case within a jurisdictional gateway; and England and Wales to be the proper forum. The merits inquiry requires more than an arguable pleading. The claim must carry some degree of conviction, be coherent and properly particularised, and have evidential support for its factual basis. Confidential information on a platform may be partly public and partly confidential, depending on access restrictions and the information’s availability. Knowledge of wrongdoing requires knowledge, including blind-eye knowledge, that confidential information was involved. Forum analysis focuses on the place of the direct damage and the dispute’s practical centre of gravity.

Playtech alleged breaches of confidence, misuse of trade secrets and copyright infringement arising from access to its online gambling-game platform by a former employee, Mr Veliks, while employed by Realtime Latvia. It also alleged vicarious or primary liability against Realtime Latvia and Realtime Malta, and joint liability against the Games Global companies.

The claimants sought permission to amend the claim and serve the amended proceedings outside the jurisdiction. The defendants challenged the merits of the amended claims, the applicable jurisdictional gateways, forum conveniens and Playtech’s full and frank disclosure. The central issues were whether the amended claims passed the Kawasaki merits test, whether the relevant gateways were satisfied, and whether England and Wales was the proper forum.

The court granted permission to amend the claim and to serve the amended Claim Form and Amended Particulars of Claim, but only in relation to Mr Veliks and Realtime Latvia. The claims against Realtime Malta and the Games Global companies did not pass the merits filter.

1. Merits. The Kawasaki test required a claim carrying some degree of conviction, a coherent and properly particularised pleading, and evidential material supporting the factual allegations. The test applied separately to each defendant.
2. Restricted areas of the Horizon platform could constitute confidential information. Publicly accessible games, including games available to general users shortly before launch, were treated as public-domain information. There was a good arguable case that Mr Veliks accessed confidential games, knew of their confidentiality, breached confidence and unlawfully acquired or used trade secrets. The copyright claim also just passed the test.
3. The employment contract governed the contractual confidentiality obligations between ELT and Mr Veliks, but did not exclude Playtech’s independent equitable rights in information owned by Playtech. Privity prevented the wider reading of Faccenda Chicken.
4. Realtime Latvia could be vicariously liable and had a sufficiently arguable case of primary misuse. Realtime Malta lacked sufficient evidence of knowledge and unconscionable misuse. The Games Global companies’ strategic involvement and common ownership did not establish actual or blind-eye knowledge that confidential parts of Horizon were being accessed.
5. Gateways and forum. The copyright claim passed gateways 9 and 11. The confidence and trade-secret claims passed gateway 9 and, more naturally, gateway 21, which provided alternative routes through its sub-paragraphs. England and Wales was the proper forum because the alleged economic damage arose substantially in the United Kingdom and the dispute concerned English trade secrets and copyright.

The alleged disclosure failures did not justify refusal of the application. Costs were left for the parties to address in settling the order.