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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Generics (UK) Ltd v Yeda Research & Development Co Ltd & Anor [2012] EWCA Civ 726 (31 May 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/726.html Cite as: [2012] WLR(D) 169, [2013] Bus LR 777, [2012] EWCA Civ 726 |
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ON APPEAL FROM HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE FLOYD
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ETHERTON
and
SIR ROBIN JACOB
____________________
GENERICS (UK) LIMITED |
Appellant |
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- and - |
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![]() ![]() TEVA PHARMACEUTICAL INDUSTRIES LIMITED |
Respondents |
____________________
Simon SALZEDO Q.C. and Thomas HINCHLIFFE (instructed by Bird & Bird LLP, Pinsent Masons LLP) for the Respondents
Hearing date: 23rd. February 2012
____________________
Crown Copyright ©
Sir Robin Jacob:
"[Mylan] shall cease to act by, or otherwise seek assistance or advice from, its Director of Intellectual Property, namely …, in relation to this action."
"I also have no recollection of being copied in on any communications or being involved in any discussions on any aspect of litigation relating to Copaxone while at Teva. Indeed the first time I learned about any litigation concerning Copaxone was during my interview process with Mylan when Steven Flynn (who has overall responsibility for global IP at Mylan) asked me whether I had ever done any work on Copaxone at Teva."
"[17] I should make it absolutely clear that I do not consider that [Mylan's in-house patent attorney] is being at all untruthful in any of the evidence that she has given, but it is a matter of common experience that although one feels, or feels strongly, that one has no relevant information on a topic, one's recollection can subsequently be shown to be wrong. Indeed the way in which the evidence has gone in this case has suggested that [Mylan's in-house patent attorney's] initial recollection was at least to some degree incorrect and that she had been exposed, at least peripherally, to discussions concerning the Copaxone case.
[18] Mr. Turner submits that, rather like the case considered by Lightman J in In re a Firm of Solicitors, all that is involved here is the fact that [Mylan's in-house patent attorney] shared an office with those who were concerned with Copaxone and that there is not at present a sufficient identification of particular confidential information to justify the court's intervention.
[19] I have not found this an all together easy question to decide, but I have reminded myself that the threshold is not a particularly high one. It seems to me that communications of the type which I have considered are by their very nature confidential and privileged. The communications are not central to the litigation, with which this court is concerned, though they are, I think, relevant to it. I think there is a risk in the present case that if [Mylan's in-house patent attorney] continues to act on behalf of Generics her memory of events such as those to which I have referred, …, may be at the back of her mind and may, I suspect unconsciously, nevertheless in fact influence her strategy and conduct and the consequent instructions she gives in the case.
[20] I have therefore come to the conclusion, somewhat reluctantly, that the case is an appropriate one for the court to intervene by way of injunction. I have of course borne in mind that the right of a party to decide by whom it conducts its litigation is, absent the risk of misuse of confidential information, a very strong consideration, but it does seem to me that here is such a risk and accordingly I propose to protect the defendants by eliminating the risk by injunction."
i) Assuming the Bolkiah principles apply, the information in respect of which there is said to be a danger of misuse was too nebulous to satisfy the test and in any event there was no realistic risk of Mylan's in-house patent attorney misusing it even subconsciously. The Judge was wrong in his assessment of the position.
ii) The Bolkiah principles do not apply here. They are limited to the provision of legal services (or their equivalent, such as those of accountants) by third party professionals. Different principles apply to former employees even if they are in-house lawyers or patent attorneys conducting litigation for their employers. Those principles are the conventional principles by which a former employee may not, post-employment, use the trade secrets properly so-called of his former employer. Barring orders of the sort granted in Bolkiah will not be granted: the most the employer can be granted is an injunction restraining use of the trade secret, and such an injunction will only be granted if there is use or threatened use or disclosure of that secret.
i) Bolkiah principles apply whether the litigator was in or out-house;
ii) It was for the Judge to evaluate the facts. He had concluded there was a risk that the "information may, unconsciously, influence Mylan's in-house patent attorney's strategy and conduct and the consequent instructions she gives in the case." It was not for this Court to interfere unless the Judge had made an error.
iii) Even if Bolkiah principles do not apply, the in-house patent attorney of the Claimant's contract of employment leads to the same result.
"280(1) This section applies to communications as to any matter relating to the protection of any invention, design, technical information or trade mark or as to any matter involving passing off.
(2) Any such communication –
(a) between a person and his patent agent, or
(b) for the purpose of obtaining, or in response to a request for, information which a person in seeking for the purpose of instructing his patent agent
is privileged from disclosure in legal proceedings in England, Wales or Northern Ireland in the same way as a communication between a person and his solicitor or, as the case may be, a communication for the purpose of obtaining, or in response to a request for, information which a person seeks for the purpose of instructing his solicitor."
"My Lords, I would affirm this [i.e. protection of confidential information] as the basis of the court's jurisdiction to intervene on behalf of a former client. It is otherwise where the court's intervention is sought by an existing client, for a fiduciary cannot act at the same time both for and against the same client, and his firm is in no H better position. A man cannot without the consent of both clients act for one client while his partner is acting for another in the opposite interest. His disqualification has nothing to do with the confidentiality of client information. It is based on the inescapable conflict of interest which is inherent in the situation (pp.234H-235A)
……
Where the court's intervention is sought by a former client, however, the position is entirely different. The court's jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interests of his former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence (pp.235C-D)."
"Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. ….Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case, p.235D-F.
Degree of risk
It follows that in the case of a former client there is no basis for granting relief if there is no risk of the disclosure or misuse of confidential information, p.236B
….
It is in any case difficult to discern any justification in principle for a rule which exposes a former client without his consent to any avoidable risk, however slight, that information which he has imparted in confidence in the course of a fiduciary relationship may come into the possession of a third party and be used to his disadvantage. Where in addition the information in question is not only confidential but also privileged, the case for a strict approach is unanswerable. Anything less fails to give effect to the policy on which legal professional privilege is based. It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest, p.236G-H"
"[49] In my judgment there is nothing in Lord Millett's speech to justify the relief granted in that case, which prohibited KPMG from acting against their former client in connection with a matter in which they had previously acted for him, to the ordinary relationship of employer and employee. That the principle for which it is authority is confined to solicitors and the like is confirmed by the speech of Lord Hope [which he then cited]."
"[45] As a postscript what this judgment does not decide should be mentioned. Questions concerning possible relief against an in-house lawyer who changes jobs to take up a position on the other side of a contentious issue; or against a person who moves from employment as in-house lawyer to private practice as a solicitor (or vice-versa) to act on the other side of a contentious matter, do not arise on the present appeal. I wish to leave such questions open."
"I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial, p.237A
In my view no solicitor should, without the consent of his former client, accept instructions unless, viewed objectively, his doing so will not increase the risk that information which is confidential to the former client may come into the possession of a party with an adverse interest, p.237 E-F
Once the former client has established that the defendant firm is in possession of information which was imparted in confidence and that the firm is proposing to act for another party with an interest adverse to his in a matter to which the information is or may be relevant, the evidential burden shifts to the defendant firm to show that even so there is no risk that the information will come into the possession of those now acting for the other party, p.237G."
…
Lord Justice Etherton:
"It is true to point out that a patent attorney is not a solicitor and it is not necessary for me to consider for the purposes of this application whether a patent attorney is a fiduciary. Nevertheless, the rule as there expressed applies to anyone in possession of confidential information. Moreover, communications between a patent attorney and his client in matters relating to patents and patent prosecution enjoys a statutory privilege under the Patents Act 1977."
"19. I have not found this an all together easy question to decide, but I have reminded myself that the threshold is not a particularly high one. It seems to me that communications of the type which I have considered are by their very nature confidential and privileged. The communications are not central to the litigation with which this court is concerned, though they are, I think, relevant to it. I think there is a risk in the present case that if [Mylan's in-house patent attorney] continues to act on behalf of Generics her memory of events such as those to which I have referred, [REDACTED], may be at the back of her mind and may, I suspect unconsciously, nevertheless in fact influence her strategy and conduct and the consequent instructions she gives in the case.
20. I have therefore come to the conclusion, somewhat reluctantly, that the case is an appropriate one for the court to intervene by way of injunction. I have of course borne in mind that the right of a party to decide by whom it conducts its litigation is, absent the risk of misuse of confidential information, a very strong consideration, but it does seem to me that there is such a risk and accordingly I propose to protect the defendants by eliminating the risk by injunction."
(1) Where the parties are, or have been, linked by a contract of employment, the obligations of the employee are to be determined by the contract with the employer.
(2) In the absence of any express term, the obligations of the employee in respect of the use and disclosure of information are the subject of implied terms.
(3) While the employee remains in the employment of the employer the obligations are included in the implied term which imposes a duty of good faith or fidelity on the employee. The extent of the duty of good faith will vary according to the nature of the contract.
(4) The implied term which imposes an obligation on the employee as to the employee's conduct after the determination of the employment is more restricted in its scope than that which imposes a general duty of good faith. The obligation not to use or disclose information may cover secret processes of manufacture such as chemical formulae or designs or special methods of construction, and other information which is of a sufficiently high degree of confidentiality as to amount to a trade secret. The obligation does not extend, however, to cover all information which is given to or acquired by the employee during the period of employment, and in particular may not cover information which is only 'confidential' in the sense that an unauthorised disclosure of such information to a third party while the employment subsisted would be a clear breach of the duty of good faith.
(5) In order to determine whether any particular item of information falls within the implied term so as to prevent its use or disclosure by an employee after the employment has ceased, it is necessary to consider all the circumstances of the case, including the following. (a) Employment in a capacity where 'confidential' material is habitually handled may impose a high obligation of confidentiality because the employee can be expected to realise its sensitive nature to a greater extent than if employed in a capacity where such material reaches the employee only occasionally or incidentally. (b) The information will only be protected if it can properly be classed as a trade secret or as material which, while not properly described as a trade secret, is in all the circumstances of such a highly confidential nature as to require the same protection as a trade secret. (c) It is relevant whether the employer impressed on the employee the confidentiality of the information. (d) It is relevant whether the relevant information can be easily isolated from other information which the employee is free to use or disclose.
"If [the managing director] is right in thinking that there are features in his process which can fairly be regarded as trade secrets and which his employees will inevitably carry away with them in their heads, then the proper way for the plaintiffs to protect themselves would be by exacting covenants from their employees restricting their field of activity after they have left their employment, not by asking the court to extend the general equitable doctrine to prevent breaking confidence beyond all reasonable bounds. "
"…in determining whether a fiduciary relationship arises in the context of an employment relationship, it is necessary to identify with care the particular duties undertaken by the employee, and to ask whether in all the circumstances he has placed himself in a position where he must act solely in the interests of his employer. It is only once those duties have been identified that it is possible to determine whether any fiduciary duty has been breached ..."
"61. There is a very considerable difference between the position of a solicitor and an employee, even though the confidential information which they have obtained may be the same. The solicitor will normally have many clients and will not be dependent upon one for his livelihood. Even if the new client is important to him, he does not have to act for him in a matter in which he previously acted for the other side. The employee can have only one employer at a time and, in the nature of things, his new employer is likely to be in the same line of business and therefore in competition with the previous one. I therefore see no reason of logic or policy which requires the special remedy against solicitors to be extended to employees who have information which would be protected by [legal professional privilege].
63. … In the absence of an enforceable covenant, the courts do not interfere with the new activities of former employees. There is no case in which they have done so. Former solicitors (or forensic accountants) are different …"
"60. … The first [reason] is that as an employee she was not a fiduciary such as to be amenable to the jurisdiction to grant such relief. Clearly, the Court has power to grant such relief, but if it could ever be granted to an employer against an employee it could only be in the most exceptional circumstances, if at all. There is nothing exceptional in this case.
61. The second reason is that this was not the relief for which CLS contracted. It could have required the respondent to enter into an express covenant not to enter the employment of a customer (or a competitor). Any such covenant would have had to be limited in time and reasonable as between the parties and in the public interest: it would have been a covenant in restraint of trade. It did not seek such a covenant, but instead obtained from the respondent her agreement in respect of its confidential information. …"
"Employers who want to impose fetters of this sort on their employees ought in my view to be expected to do so by express covenant. The reasonableness of the covenant can then be subjected to the rigorous attention to which all employee covenants in restraint of trade are subject."
"64. In my judgment, it is no answer to say, as Mr [Selwyn] Bloch [counsel for CLS] did when the point was put to him, that it is not the practice for employers to contract for express covenants to prevent employees going to work for their customers. It seems that CLS was sufficiently concerned to protect its confidential information to require the respondent to enter into the confidentiality agreement, and it presumably designed that agreement to provide it with appropriate protection. Mr Bloch's answer is particularly inapt on the facts of the present case, where the respondent had left the employment of one of CLS's customers in order to work for it. Clearly, there was a possibility that she might return to work for that or some other customer. "
"65. To my mind, it is not surprising that barring-out relief is unavailable in the present case. Mr Bloch accepted, as he had to, that the barring-out injunction sought by CLS would preclude the respondent from carrying out tasks in relation to the LSA that could not possibly involve the use of any of its confidential information. Placing an order, and raising a query as to delivery of spare parts to a customer of QH, are only two obvious examples. Mr Bloch submitted that if some of the work carried out by the respondent was innocent in this sense, but other work carried the risk of the misuse of CLS's confidential information, the respondent should be injuncted from both. In my judgment, this is the wrong way round. As between an employer and an employee, it is the former who is in the position of power, and who is able to protect its interests by requiring a suitable restrictive covenant. The law is concerned to protect the freedom of a former employee to use her knowledge and skills to her and the public's best advantage, unless it is shown that she has infringed, or has threatened to infringe, an enforceable right of her former employer. In other words, where the employee is innocent, in the absence of an express covenant, the former employer is not entitled to surround his rights with a penumbra of forbidden but innocent acts."
"There is a common thread to the fiduciary obligations to which these different fiduciary relationships give rise. It is the principle that a man must not exploit the relationship for his own benefit. This is what distinguishes a fiduciary relationship from a commercial one. What distinguishes the role of equity from that of the common law is that equity is proscriptive not prescriptive. It forbids the fiduciary to act for himself. It does not tell him what to do for his principal. And if, in breach of his fiduciary duty, he does act for himself, he is treated as if he had acted for his principal. In consequence, the remedies which equity makes available are very different from those which may be obtained at common law."
"Employees frequently fall into this latter category, because their work will often involve their being made privy to trade or business secrets of their employer. But although the existence of the employment relationship explains why the employee comes to be in possession of such information, and the contract of employment will define the purposes for which such information may be used, the employment relationship itself in such cases is really only incidental to the imposition of the fiduciary duties. As the Court of Appeal noted in A-G v Blake [1998] Ch.439 this fiduciary obligation of confidence often arises in the course of another fiduciary relationship but it is not derived from it. It is for this reason that the obligation of confidence can continue to subsist even when the employment relationship, and any fiduciary duties arising out of it, has terminated."
"The employment relationship is obviously not a fiduciary relationship in the classic sense. It is to be contrasted with a number of other relationships which can readily and universally be recognised as "fiduciary relationships" because the very essence of the relationship is that one party must exercise his powers for the benefit of another. Trustees, company directors and liquidators classically fall into this category which Dr. Finn, in his seminal work on fiduciaries, has termed "fiduciary offices". (See P.D Finn, ""Fiduciary Obligations" (1977)). As he has pointed out, typically there are two characteristics of these relationships, apart from duty on the office holder to act in the interests of another. The first is that the powers are conferred by someone other than the beneficiaries in whose interests the fiduciary must act; and the second is that these fiduciaries have considerable autonomy over decision making and are not subject to the control of those beneficiaries.
By contrast, the essence of the employment relationship is not typically fiduciary at all. Its purpose is not to place the employee in a position where he is obliged to pursue his employer's interests at the expense of his own. The relationship is a contractual one and the powers imposed on the employee are conferred by the employer himself. The employee's freedom of action is regulated by the contract, the scope of his powers is determined by the terms (express or implied) of the contract, and as a consequence the employer can exercise (or at least he can place himself in a position where he has the opportunity to exercise) considerable control over the employee's decision making powers.
This is not to say that fiduciary duties cannot arise out of the employment relationship itself. But they arise not as a result of the mere fact that there is an employment relationship. Rather they result from the fact that within a particular contractual relationship there are specific contractual obligations which the employee has undertaken which have placed him in a situation where equity imposes these rigorous duties in addition to the contractual obligations. Where this occurs, the scope of the fiduciary obligations both arises out of, and is circumscribed by, the contractual terms; it is circumscribed because equity cannot alter the terms of the contract validly undertaken. …
The problem of identifying the scope of any fiduciary duties arising out of the relationship is particularly acute in the case of employees. This is because of the use of potentially ambiguous terminology in describing an employee's obligations, which use may prove a trap for the unwary. There are many cases which have recognised the existence of the employee's duty of good faith, or loyalty, or the mutual duty of trust and confidence - concepts which tend to shade into one another. As I have already indicated, Lord Millett has used precisely this language when describing the characteristic features which trigger fiduciary obligations. But he was not using the concepts in quite the same sense as they tend to be used in the employment field. Lord Millett was applying the concepts of loyalty and good faith to circumstances where a person undertakes to act solely in the interests of another. Unfortunately, these concepts are frequently used in the employment context to describe situations where a party merely has to take into consideration the interests of another, but does not have to act in the interests of that other.
….
Accordingly, in analysing the employment cases in this field, care must be taken not automatically to equate the duties of good faith and loyalty, or trust and confidence, with fiduciary obligations. Very often in such cases … there has been no need to decide whether the duties infringed, properly analysed, are contractual or fiduciary obligations. As a consequence, the two are sometimes wrongly treated as identical…
Accordingly, in determining whether a fiduciary relationship arises in the context of an employment relationship, it is necessary to identify with care the particular duties undertaken by the employee, and to ask whether in all the circumstances he has placed himself in a position where he must act solely in the interests of his employer. It is only once those duties have been identified that it is possible to determine whether any fiduciary duty has been breached …
It follows that fiduciary duties may be engaged in respect of only part of the employment relationship …"
"37. I am unable to accept this argument. The cases which characterise legal professional privilege as absolute and as a predominant public interest are concerned with maintaining the inviolability of privileged communications against competing policies in favour of compulsory disclosure of the relevant information. Such issues are not engaged in the present case. No one is suggesting that Mr Aitken is entitled or can be compelled to divulge or use for CSL's benefit PCCW's privileged information to which he is privy. The respondents accept that they must abide by the Judge's orders against any disclosure or misuse. This appeal is concerned with the nature and scope of the relief available to PCCW to maintain the confidentiality of information acquired by Mr Aitken as a former employee, an area where the policy against restraint of trade is of central importance. Since issues concerning compelled disclosure of privileged information do not arise, there is no conflict with that policy and no question of it being "trumped" by policies sustaining the high importance of legal professional privilege.
"That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction."
"You will not during your employment or at any time afterwards, save where authorised by an Executive Director, divulge or communicate, use or misuse any confidential information of the Employer obtained by virtue of your employment. You acknowledge that confidential information shall include, but is not limited to, lists or details of clients, employees or suppliers, details of contractual agreements, prices, commercial relationships or information concerning the business accounts, affairs, methods or finances of the employer."
…
Lord Justice Ward:
"26. I have not found this an altogether easy question to decide, but I have reminded myself that the threshold is not a particularly high one. It seems to me that communications of this type which I have considered are by their very nature confidential and privileged. The communications are not central to the litigation with which this court is concerned, though they are, I think, relevant to it. I think there is a risk in the present case that if [Mylan's in-house patent attorney] continues to act on behalf of Generics her memory of events such as those to which I have referred … may be at the back of her mind and may, I suspect unconsciously, nevertheless in fact influence her strategy and conduct and the consequent instructions she gives in this case."
"They [salaried legal advisers] are regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges."
So said Lord Denning M.R. in Crompton Ltd v Customs & Excise Commissioners [1972] 2 Q.B. 102, 129. But I respectfully venture to think that those observations must be seen in context. The issue there was a narrow one: could legal professional privilege be claimed for bundles of documents consisting of communications between the Commissioners and their legal department. The case draws the distinction between work done by a legal adviser which is of an executive nature which is not the subject of legal professional privilege and work done qua solicitor which must be treated as such.
"It is … difficult to discern any justification in principle for a rule which exposes a former client without his consent to any avoidable risk, however slight, that information which he has imparted in confidence in the course of a fiduciary relationship may come into the possession of a third party and be used to his disadvantage. Where, in addition the information in question is not only confidential but also privileged, the case for a strict approach is unanswerable. Anything less fails to give effect to the policy on which legal professional privilege is based. It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest:" per Lord Millett at p. 236H.
(I have added the emphasis because it may be the due administration of justice demands the protection of information which is privileged only and that confidential information received by a solicitor which is not also privileged (though it is not easy to see how that distinction could be made) falls outside this protection. I shall assume the ordinary day to day dealings between a solicitor and his employer/client are covered. )
"The true view at the present time, I think, is this: The public have an interest in every person's carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule. But there are exceptions: restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. It is sufficient justification, and indeed it is the only justification, if the restriction is reasonable –reasonable, that is, in reference to the interest of the parties concerned and reasonable in reference to the interest of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public."
Herbert Morris v Saxelby [1916] A.C. 688 is the leading authority applying this principle to employer and employee.
"whether, and if so in what circumstances, a firm of accountants which has provided litigation support services to a former client and in consequence has in its possession information which is confidential to him can undertake work for another client with an adverse interest. The question has become of increased importance with the emergence of huge international firms with enormous resources that operate on a global scale and offer a comprehensive range of services to clients," (p. 228).
Not allowing KPMG to shield behind a Chinese wall is a far cry from preventing a young employed in-house solicitor, still less, for example, an assistant solicitor in the litigation department of a large firm, advancing his or her career by moving to another employer or another firm. They should be free to move unless their previous employer can justify the restraint upon them: they should not be required to justify their freedom of movement.