Trayport Limited v E-Star Trading GmbH & Ors

Permission to serve proceedings outside the jurisdiction requires four matters to be established: a serious issue to be tried, a good arguable case within a jurisdictional gateway, England and Wales as the proper forum, and full and frank disclosure. The merits inquiry focuses on a coherent and properly particularised pleading supported by evidence. Suspicion, opportunity, or similarity alone does not establish a real prospect of proving misuse or copying. Inference requires an evidential foundation for the underlying facts and a real prospect that those facts will support the inference sought. The court must assess territoriality for statutory claims and must consider the centre of gravity of the dispute when determining forum. Material non-disclosure may justify setting aside permission, although permission may be re-granted where the surviving claims satisfy the applicable requirements.

Trayport sought to serve proceedings in Germany against E-Star Trading GmbH, Exxeta AG, Karsten Schmid and Andreas Kamper. The claims concerned alleged misuse of software, databases, confidential information and trade secrets connected with Trayport’s Joule platform, contractual breaches, trade mark infringement, inducement of contractual breaches, vicarious liability and conspiracy.

Master Pester had granted permission to serve the claim form and Particulars of Claim outside the jurisdiction. E-Star, Exxeta and Mr Schmid applied to set that order aside. The court considered whether the claims raised a serious issue to be tried, fell within jurisdictional gateways, England was the appropriate forum, and Trayport had complied with its duty of full and frank disclosure.

1. The order permitting service out was set aside. Permission was re-granted only for: the NDA claim against Exxeta; breach of equitable duties of confidence by E-Star and Exxeta; and the Trade Marks Act 1994 claim against E-Star.

2. The merits test requires a coherent and properly particularised claim, supported by evidence establishing a factual basis with a real prospect of success. The requirement applies separately to each cause of action and each defendant. Where the case depends on inference, each underlying fact must have a real prospect of being proved and the proposed inference must itself have a real prospect of being drawn.

3. The Copying Case failed. The alleged speed of development, similarity of functionality or appearance, recruitment of former employees, access to Joule, and other suspicious circumstances established no more than opportunity or suspicion. Similarity which is commonplace, unoriginal or dictated by general functionality did not provide a sufficient basis for inferring copying or misuse.

4. The narrower Access Case had a real prospect of success as a factual case concerning unauthorised access to Joule. That was sufficient for the NDA and equitable confidence claims against the corporate defendants, but statutory copyright, database-rights and trade-secret claims failed as currently pleaded and evidenced because relevant infringing acts in the United Kingdom were not established.

5. The claim against Mr Schmid for breach of the non-compete covenant failed. The evidence showed that garden leave began on 30 November 2021, so the six-month restriction had expired before he joined E-Star. The claim of wrongful solicitation of former employees did have a real prospect of success, based on the combined timing, relationship and similarity of roles.

6. The claims for procuring breaches of contract, unlawful means conspiracy and general vicarious liability failed for inadequate pleading or evidence. The vicarious-liability claim survived only in relation to alleged breaches of Clickthrough Agreements by E-Actors.

7. England was clearly the appropriate forum for the surviving claims, particularly those subject to English exclusive-jurisdiction provisions and the trade mark claim. The court nevertheless found culpable and material non-disclosure concerning the parties’ relationship, the Termination Agreement, territoriality and forum factors. The appropriate consequence was to set aside and re-grant permission, coupled with an indemnity costs order.

First-instance decision. The judgment states that Master Pester had granted permission to serve the proceedings outside the jurisdiction on 30 January 2024. That permission was set aside and re-granted only for specified claims.