Infinni Innovations SA v OFMS Limited & Ors

On an interim injunction application, the court must approach the return hearing with a clean sheet. The claimant bears the burden of showing afresh that relief is appropriate. A serious issue to be tried is not a determination of the merits.

In a breach of confidence claim, information may retain the necessary quality of confidence where individual components are publicly available, if the claimant’s compilation, presentation or generation gives it commercial value and inaccessibility. Surreptitious extraction and use for a competing business may establish sufficient notice of confidentiality and unconscionable use.

Where an injunction would cause substantial practical prejudice to innocent third parties, and the claimant’s loss from allowing limited continued access is unquantified, the balance of convenience may favour permitting that access while restraining the defendants’ own commercial exploitation.

The claimant operated Infloww, a customer-relations platform used by agencies managing online content creators. It alleged that the defendants, operators of a competing platform, had infiltrated its systems and extracted Fan Notes, Scripts and analytics and reporting data.

An interim injunction had been granted without notice. On the return application, the defendants sought discharge for alleged failures of fair presentation and disputed the breadth of continuing relief. They conceded, for present purposes, that there was a serious issue to be tried and offered undertakings concerning future access and Generated Data.

The court determined whether the injunction should continue, whether agencies should retain access to migrated Fan Notes and Scripts, and whether the defendants should provide an affidavit and digital image of extracted data.

1. Fair presentation. The application to discharge the injunction was dismissed. The duty requires an applicant to identify issues and possible difficulties likely to arise, but not to provide a detailed analysis of every conceivable point. The question is whether the court was materially misled in all the circumstances, assessed without hindsight. The claimant had sufficiently raised the possibility of Spanish or German law, was not required to plead foreign law when relying on English law, and had not materially misled the court by failing to exhibit the relevant terms or address the eventual migration case: per Tugushev v Orlov [2019] EWHC 2031 (Comm) at [59]-[74].
2. Cause of action. Applying Coco v AN Clark (Engineers) Ltd [1968] FSR 415 and Playtech Software Ltd v Games Global Ltd [2024] EWHC 3264 (Ch), the relevant requirements were confidential subject matter, actual or implicit notice of confidentiality, and unauthorised use amounting to unconscionable misuse. It was sufficiently arguable that Generated Data was confidential to the claimant and that the compiled Fan Notes and Scripts were also confidential, notwithstanding their user-generated elements. Surreptitious extraction by defeating security controls was capable of importing an obligation of confidence.
3. Interim relief. The defendants were restrained from using the Extracted Data for artificial-intelligence or automated communication training, selling, licensing or distributing it, using it for market analytics or customer acquisition, or displaying it outside OnlyMonster. The court declined the wider Option 1 restraint preventing Active Agencies from accessing the data. The evidence showed that the data had been dynamically edited and mixed, making segregation impracticable, and that withdrawal of access would cause immediate and serious prejudice to innocent agencies and creators. The claimant had not identified or evidenced a corresponding loss if limited access continued.
4. Affidavit application. The court held that it had jurisdiction to order interim disclosure, but the order was justified only where strictly necessary to police the injunction or prevent future harm. A modified order required disclosure, by digital image, of extracted data in its form at extraction, verified by affidavits. Requirements to disclose dates, times, manner of extraction and use were refused as unnecessary, disproportionate or inconsistent with the adversarial process.

The injunction remained in force in modified form, incorporating the undertakings, and the modified disclosure order was made.