UK Law and Practice Contributed by: Nicola Dagg, Steven Baldwin, Rory Clarke and Ashley Grant, Kirkland & Ellis International LLP
• whether the information can be isolated from other information that the employee is free to use. (See, for example, Faccenda Chicken Ltd v Fowler (1987) Ch 117.) Under the Directive as implemented by the Reg - ulation, a trade secret is defined as information that: • is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question; • has commercial value because it is secret; and • has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret. In the Court of Appeal decision of Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293, LJ Arnold under - lined that the doctrine of misuse of confidential information is (i) all about control of information and (ii) a species of unfair competition. There is no property in information, and the Directive does not create a (proprietary) species of intel - lectual property right. 1.3 Examples of Trade Secrets The first UK cases under the Directive/Regula - tion were in 2020. Those cases related to: • technical information regarding battery sepa - rators (see Celgard, LLC v Shenzhen Senior Technology Material Co Ltd [2020] EWHC 2072 (Ch), upheld on appeal [2020] EWCA Civ 1293), where the court considered there to
be a serious issue to be tried and that the bal- ance of convenience favoured the granting of an injunction against the defendant; and • customer lists (see Trailfinders Limited v Travel Counsellors Limited & Ors [2020] EWHC 591 (IPEC)), where the court found the defendants to have breached their obligations of confidence owed to the claimant. Some examples of types of information found to constitute a trade secret under common law are: • products and methods (see Balston Ltd v Headline Filters [1990] FSR 385); • formulations (eg, formulation of inks, see Johnson & Bloy (Holdings) Ltd v Wolstenholm Rink plc [1989] FSR 135); • supplier or client lists (see PSM International Ltd v Whitehouse [1992] FSR 489); • sales and distribution methods (see PSM International Ltd v Whitehouse [1992] FSR 489); • marketing and advertising strategies (see PSM International Ltd v Whitehouse [1992] FSR 489); • some databases (Vestergaard Frandsen A/S and others v Bestnet Europe and others [2009] EWHC 657 (Ch), cf Roger Bullivant Ltd v Ellis [1987] ICR 464); and • the design of the projects to be carried out under the contract and the manner of perfor - mance of the contract in the tender process (Antea Polska SA v Państwowe Gospodarst - wo Wodne Wody Polskie (ECJ Case C-54/21). However, there is no limit on the type of informa - tion that can qualify for protection.
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