Darchem Engineering Limited v Andrew Richardson

A hearing may be held in private where confidentiality cannot practicably be protected by a less intrusive measure and privacy is necessary to preserve confidential information. The court must assess proportionality and consider whether part of the hearing could be conducted publicly. Where relevant electronic data has been preserved, further specific disclosure may be unnecessary if the issues can be addressed through ordinary disclosure. Imaging orders may therefore be confined to personal items and relevant systems, excluding unrelated operational, accounting and banking systems.

Darchem Engineering Limited applied for electronic data imaging and ancillary orders against its former employee, Andrew Richardson, alleging that he had improperly obtained and retained trade secrets and other confidential information.

The claimant also sought a private hearing because the principal evidence was contained in a confidential annex. The court considered the privacy application under regulation 10.4 of the Trade Secrets (Enforcement, etc.) Regulations 2018 and rule 39.2.3(c) of the Civil Procedure Rules 1998, together with the matters specified in regulation 10.7.

1. Privacy order. The court was satisfied that the material in the confidential annex fell within regulation 10 and rule 39.2.3(c). The applicable test was necessity in order to preserve confidentiality, with proportionality and the practicability of a less restrictive measure also considered.
2. Because the confidential annex was at the heart of the application, it was not practicable to hear only part of the application in private. A privacy order was therefore made for the entire hearing. The court would provide written reasons so that a public judgment could be given while preserving confidential information.
3. Imaging order. The court indicated that an imaging order should be made, but in reduced terms. Imaging was to be confined to personal items and was to exclude NDT’s systems, online accounting and payment systems, and online bank accounts.
4. Disclosure and prohibited acts. The interim injunction fell away by undertakings. Disclosure of the specified emails was ordered. Further specific disclosure was not justified because relevant data had been preserved and the matter could proceed through disclosure in the ordinary way. Once the data was preserved, the proposed prohibited acts also fell away.