|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> S v A  EWHC 2144 (Ch) (17 July 2018)
Cite as:  EWHC 2144 (Ch)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
7 Rolls Buildings
London EC4A 1NL
B e f o r e :
- and –
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
MR. ANDREW GREEN QC and MR. MARK VINALL (instructed by Potter Clarkson) for the Respondent/Defendant
Crown Copyright ©
MR JUSTICE HENRY CARR:
A change in A's case
"It does not follow that your client is then entitled to an interim injunction. The English legal team has now given detailed further consideration to the material and temporal scope of the NDA. It is clear to us that, upon its true construction, the NDA only covers information provided after the effective date of the NDA, 12th September 2017. It does not cover information provided before the effective date, nor does it cover the existence of discussions or negotiations taking place before that date.
Our client is therefore entitled to rely on the fact of the meeting in August 2017 (and e-mails prior to the Effective Date referring to the existence of that meeting) in support of its claim to personal jurisdiction in the Massachusetts proceedings."
"12 Freedom of expression.
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
"(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
"(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
"(a) the extent to which—
"(i) the material has, or is about to, become available to the public; or
"(ii) it is, or would be, in the public interest for the material to be published;
"(b) any relevant privacy code.
"(5) In this section—
"'court' includes a tribunal; and
"'relief' includes any remedy or order (other than in criminal proceedings)."
"In my view section 12(3) calls for a similar approach. Section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."
Terms of the NDA
(i) A Recital which provides:
"WHEREAS: The parties intend to enter into discussions and negotiations with each other with a view to considering a proposed settlement in relation to certain intellectual property rights. To this end, the communications between the parties shall be considered negotiations and/or offers of compromise and, as such, shall not be admissible as evidence against either party in any litigation proceeding (including arbitration) and shall be subject to Federal Rule of Evidence 408. For this purpose, each of (1) S and (2) A may provide the other with financial and other information (but no technical or other product or services information) related to the Proposed Agreement, which shall be the subject of the confidentiality obligations set out in this Agreement.
(ii) Certain definitions:
1.1 In this Agreement, the following words and phrases shall have the following meanings unless the context otherwise requires:
"Confidential Information" means:
(A) all information, in whatever form which is provided to the Receiving Party or any of its Authorised Representatives in the course of discussions and/or negotiations, including without limitation information relating to the Proposed Agreement or the evaluation thereof after the date of this Agreement, including (without prejudice to the generality of the foregoing) information held for the time being on paper or in electronic form or communicated orally or in the form of models, materials or demonstrations;
(B) all copies of any such information in whatever form;
(C) knowledge of the fact the parties are or were in discussions or negotiations in connection with the Proposed Agreement; and
(D) all reports, analyses, compilations, forecasts, studies, memoranda or other documents, materials or information prepared by or on behalf of the Receiving Party which contain, derive from or reflect, utilise or are generated from any of the information previously referred to in this definition.
provided that "Confidential Information" shall not include such information which:
(1) is, on the date of this Agreement, proved to have been known to the Receiving Party before it was so provided to or lawfully acquired by the Receiving Party or any of its Authorised Representatives;
(2) has been independently and lawfully acquired by the Receiving Party without (so far as it is aware) the breach by any person of any obligation of confidentiality;
(3) at the time of supply is in the public domain; or
(4) subsequently comes into the public domain, other than through breach of the undertakings set out in this letter.
"Proposed Agreement" means the proposed settlement agreement in relation to a dispute relating to intellectual property rights between the parties which may be entered into by S and A and/or certain other of their Group Companies; and
(iii) Clause 2.6A:
2.6 Duration of obligations
(A) The obligations contained in paragraphs 2.1 to 2.5 inclusive shall save as hereafter provided continue until 5 years from the date of this Agreement, but if and to the extent that any information forming part of the Confidential Information:
(1) is now in or shall hereafter have entered into the public domain (otherwise than as a consequence of unauthorised disclosure by the Receiving Party or any of its Authorised Representatives); or
(2) was prior to the date of this Agreement in the lawful possession of, or had been lawfully provided to the Receiving Party by another party (as evidenced by the written records of the Receiving Party); or
(3) in the reasonable opinion of the Receiving Party is information which is required to be disclosed by the Receiving Party by law or pursuant to any requirement of any governmental, official or regulatory body (including without limitation the London Stock Exchange)
then, and to that extent only, the obligation not to disclose shall cease to have effect, provided always that in a case within clause 2.6(A)(3) the provisions sub-clauses (B), (C) and (D) of this clause 2.6 shall apply. …
(iv) Clause 3:
3. Announcements and non-disclosure of discussions
Each party agrees with the other that it will not make any announcement to employees, customers or the public concerning, or divulge to any person other than their respective Authorised Representatives, the existence of or content of discussions between it and the other party and their respective advisers in contemplation of the Proposed Agreement, without the prior written consent of the other party, save as may be required in the circumstances referred to in clause 2.6(A)(3) (and subject to the provisions of clauses 2.6(B) to (D) inclusive), including, but without limitation, if required by the Listing Rules or Disclosure Guidance and Transparency Rules of the Financial Conduct Authority or by the AIM Rules for Companies published by the London Stock Exchange or by the London Stock Exchange or the Financial Conduct Authority or pursuant to any enquiry or investigation by any governmental, official or regulatory body.
(v) Clause 4:
4. No obligation to negotiate and status of negotiations
4.1 Each party acknowledges and accepts that the other party is not entering into any obligation to carry on with any discussions or negotiations already begun with it in connection with the Proposed Agreement and that the other party may terminate any such discussions or negotiations at any time in its absolute discretion. Where no discussions or negotiations with a party have begun at the date of this Agreement, the other party does not assume any obligation to enter into them.
4.2 It is recognised and agreed by each party that any discussions or negotiations undertaken between the parties are to be treated as being 'without prejudice' and that that each party reserves all of its rights during and in any such discussions or negotiations.
(vi) Clause 5:
5. Governing law and jurisdiction
This Agreement (and all matters arising from it, including, without limitation, any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) shall be governed by and construed in accordance with English law, shall constitute the entire agreement between the parties in respect of its subject matter and shall supersede any earlier agreement between the parties as to the confidentiality of information relating to a Disclosing Party or any part thereof so far as the same shall be inconsistent with the terms of this Agreement. In relation to any legal action or proceedings arising out of or in connection with this Agreement (including any matters arising from it as mentioned above) ("Proceedings") each of the parties irrevocably submits to the exclusive jurisdiction of the English courts and waives any objection to Proceedings in such courts on the grounds of venue or on the ground that Proceedings have been brought in an inappropriate forum.
Outline submissions of the parties
"In my experience, NDAs are a common occurrence in these situations precisely because they promote full and frank discussion without the risk that entering into discussions in a particular place exposes one or other parties to the risk of proceedings for declaratory judgment in the courts of that place."