In the recent case of Warm Zones v Sophie Thurley [2014] EWHC 988 (QB) the High Court was prepared to grant an injunction requiring the defendant employees to allow their home computers to be inspected by an independent computer expert to see if they had taken confidential information from their former employer.
Background
The claimant was a community interest not-for-profit company limited by guarantee addressing fuel poverty in domestic homes by delivering energy efficient measures and welfare benefit and energy advice. The defendants were former employees who had set up in business in competition.
Evidence came to light, in the form of emails and correspondence, in which the defendants appeared to be offering to other third parties, information that seemed likely to have been obtained from the claimant whilst they had been employed. This included reference to a database and other information which would have been confidential information in the hands of the claimant.
The judge was aware that the claimant was applying for a mandatory injunction (i.e. requiring the defendants to do things) rather than a prohibitory injunction (restricting their activities). As a result, the court required a higher degree of assurance that the claimant would be able to establish this claim at trial. The court decided that the information was potentially confidential and came to its decision by considering whether the risk of injustice if the injunction was refused sufficiently outweighed the risk of injustice if it was granted. It considered the following factors
From a financial perspective the claimant was able to satisfy the court that it would be able to meet any liability that might arise under the cross-undertaking in damages in the event that the claim did not succeed at trial;
On the other hand, it appeared that the defendants were unlikely to be able to satisfy any award of damages;
The court was also influenced by the fact that the claimant had given evidence that it had created a unique proprietary database over many years using significant resources that had commercial value and contained a package of information not readily available in the public domain.
On that basis the judge was prepared to grant the imaging and inspection order sought by the claimant. The inspection would be overseen by an independent third party solicitor and was subject to safeguards as to the potential disclosure of third party data and other information that was confidential only to the defendant.
Summary
The case is a useful reminder that where the evidence is strong enough it will be possible for a claimant to obtain a form of “search and seize” order which allows the inspection by a third party solicitor of electronic documents in a particular location. The likelihood is that the implementation of the order will bring the litigation to a swift conclusion: either the offending documents will be found or they will not and the major issue between the parties will have been resolved at a very early stage.
Other related Articles
- Springboard Injunctions (March 2012)
- Use of Confidential Information (June 2013)
- The use of confidential information by subcontractors (March 2014)