EMJ Plastics Limited v Mekina Industries Limited & Ors

Confidential business information is protected where it is inaccessible and identified with sufficient precision. An employee who copies a substantial body of such material for a competing business may be liable without the claimant analysing every copied file individually, where representative confidential documents and the wider evidential basis are clear. A senior employee’s fiduciary duties depend on the employment terms, functions and position in the hierarchy; where those duties include reporting misconduct, they may require the employee to report his own competing conduct. Joint liability may arise from more-than-trivial assistance pursuant to a common design or knowing procurement of another’s wrong. Unlawful-means conspiracy additionally requires loss caused by the conspiracy. Public pleading of confidential material does not alone show that no confidential information exists or that proceedings are abusive.

EMJ sued its former Operations Manager and Production Manager and their new joint-venture company. It alleged that confidential documents and commercial information had been copied or obtained during and after employment and used to establish and operate a competing permanent-formwork business.

The pleaded claims included contract, breach of confidence, fiduciary duty, copyright, conspiracy and joint tortfeasor liability. The trade-secrets and database claims were not pursued. The trial focused on material copied to a Toshiba drive, communications with an employee of EMJ’s Australian subsidiary, a commercial Hot List, CAD drawings, calculation-sheet material, customer emails and alleged product similarities. The central issues were which uses were proved, the defendants’ personal and joint liability, and the additional-damages claim.

Disposition. The action succeeded to the extent set out below. The form of relief was reserved.

1. Contract and confidence. The court applied the principles of inaccessibility and precise identification reflected in Racing Partnership Ltd v Dane Bros [2020] EWCA Civ 1300. It found that Mr Baggaley copied 11,579 EMJ files for a competing business. The claimant did not need to analyse every file individually because representative documents were clearly confidential and the evidence established that a substantial number of copied documents were confidential. Mr Baggaley breached contract and confidence by copying, retaining and using the material in CAD drawings, a business plan and a one-page calculation summary. The finding concerned the copied summary text, not the underlying calculation spreadsheet. Mr Johnson breached contract and confidence through use of the Hot List and customer information. Both defendants were individually liable for the confidential customer mailshots. The alleged wrongful removal of the production plan by Mr Johnson was not proved. Similarities between the products did not by themselves establish copying or misuse, being potentially explicable by coincidence, experience or public information, consistently with the relevance of Faccenda Chicken v Fowler [1987] Ch 177. The copyright claim failed because subsistence and ownership had not been pleaded or evidenced.
2. Fiduciary duty. Applying Ranson v Customer Systems Plc [2012] EWCA Civ 841, the court held that a senior non-director employee’s fiduciary duties depend on the employment terms, functions and place in the hierarchy. Mr Baggaley was the senior person running EMJ’s operations and was sufficiently trusted to owe a duty to report competing misconduct. That duty extended to his own misconduct, and he breached it by failing to report his plan and copying.
3. Joint liability. Applying Lifestyle Equities C.V. v Ahmed [2024] UKSC 17 and [2025] A.C. 1, the court found that Mr Johnson either used the confidential material himself or assisted Mr Baggaley’s use in a manner that was more than trivial and pursuant to a common design. The defendants also knowingly procured Mekina to commit breaches of confidence.
4. Unlawful-means conspiracy. Applying Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All E.R. Comm 271, the court found the combination, intention and unlawful acts established. Although no particular lost contract or customer was identified, loss and damage were more likely than not to have resulted from the conspiracy. This cause of action therefore succeeded.
5. Other issues. The court applied the principle in Parsons v Atkinson [2024] EWHC 888 (KB) in rejecting the suggestion that a witness’s evidence was legally unchallenged because no application had been made under Civil Procedure Rules 1998 Part 33.4(2). It assumed without deciding that public disclosure under Part 5.4C(1)(a) might affect injunctive relief, but held that the public pleading did not justify inferring that no confidential information existed or that the claim was abusive. Article 13 of the IP Enforcement Directive applied to breach of confidence, and additional damages were engaged because the defendants knew or had reason to know that their conduct was unlawful.