Mex Group Worldwide Limited v Adam Duthie & Anor

An undertaking given to the court will generally be varied only where subsequent circumstances of a special or significant kind have arisen which were not intended to be covered, or ought not to have been foreseen, when it was given. The court may alternatively consider the overall merits, but that approach does not displace the weight attached to a freely negotiated undertaking given with knowledge of the relevant circumstances. A court should not vary an undertaking merely to assist the case management of proceedings before another court, particularly where doing so could determine unresolved questions of privilege or breach. A hearing may properly be held in private where publicity may defeat its object or damage confidential information under Civil Procedure Rules 1998, rule 39.2(3).

The claimant brought proceedings alleging that the defendants, including its former general counsel, had misused confidential information. In May and July 2024 the defendants gave undertakings restricting disclosure, assistance to defendants in related English and Scottish proceedings, communications concerning those proceedings, reliance on earlier witness statements, and the provision of further evidence.

After a Scottish court issued a summons requiring the first defendant to attend trial as a witness, the defendants applied to vary the undertakings so that he could comply and serve a witness statement. The claimant also applied for the variation application to be heard in private. The issues were whether there had been a sufficient change of circumstances, whether an overall merits-based approach was available, and whether variation should be granted to facilitate the Scottish trial.

1. Private hearing. The claimant’s application under Civil Procedure Rules 1998, rule 39.2(3)(a), (c) and (g), was granted. Open justice was balanced against the risk that publicity would defeat the object of the hearing and damage confidentiality. Those risks justified sitting in private.
2. Variation of undertakings. The defendants’ application was dismissed. The relevant principles, including those in Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 WLR 485 and Di Placito v Slater [2004] 1 WLR 1605, required special or significant subsequent circumstances. Such circumstances must be of a type or gravity not intended to be covered, or not reasonably foreseeable, when the undertaking was given.
3. The Scottish summons did not satisfy that test. The undertakings had been freely given by an experienced solicitor, following extensive negotiation, with full knowledge of the Scottish proceedings. The possibility that the first defendant might give evidence there was already more than speculative and was at least likely.
4. Even assuming that an overall merits-based jurisdiction existed, the merits did not justify variation. The court would not alter the undertakings merely to facilitate the efficient or fair conduct of a trial before the Scottish court. Questions concerning what evidence could properly be given, and the interaction between privilege and the undertakings, were matters for the Scottish trial judge.
5. Variation could also effectively determine unresolved issues of privilege and breach in the present proceedings, depriving the claimant of privilege on the basis of a short interlocutory hearing. That would be unjust. The application was therefore dismissed on both the primary and alternative analyses.

First-instance decision. The judgment records earlier English freezing-order proceedings and a dismissed appeal, but no appellate history for this decision.