UK Law and Practice Contributed by: Nicola Dagg, Steven Baldwin, Rory Clarke and Ashley Grant, Kirkland & Ellis International LLP
5.7 Obtaining Information and Evidence Parties can seek assistance from the court to obtain evidence through the process of disclo - sure (either pre-action or after proceedings have started). The level of disclosure available is a matter of juridical discretion. The UK Business and Property Courts ran a dis - closure pilot scheme that became permanent in October 2022. The guidelines for disclosure under the scheme are now set out at Practice Direction 57AD. Parties may follow one of disclosure models A to E, depending on the level of disclosure required for the case. At one end of the spectrum, model A only requires disclosure of any known adverse documents; at the other end, model E requires “wide search-based disclosure” and is ordered only in exceptional circumstances. Disclosure of documents may also be ordered under CPR 31.16 before proceedings are com - menced, where such documents are desirable in order to dispose fairly of anticipated proceed - ings, assist resolution of the dispute without pro - ceedings, or save costs. For instance, in The Big Bus Company Ltd v Ticketogo Limited (2015) EWHC 1094 (Pat), the court granted pre-action disclosure of Ticketogo’s licences with third par - ties (for lawyers’ eyes only) on the basis that it might dispose of the action. In extreme circumstances, a party may be awarded a search order upon application to the court, allowing their representatives to enter the defendant’s premises and search for, remove and detain any documents, information or mate - rial pertinent to the case. This is discussed in 5.6 Seizure Mechanism s.
Services Ltd and another [2022] EWHC 276 (Ch), where the court noted (citing Shenzhen Senior Technology Material Co Ltd v Celgard LLC [2020 EWCA Civ 1293 at [32]) that “[i]t is well estab - lished that, in a claim for misuse of trade secrets, it is important for the claimant properly to par- ticularise the information which is alleged to be a trade secret and to have been misused” and (citing Ocular Sciences Ltd v Aspect Vision Care Ltd [1997] RPC 289 at 359) that “[t]he courts are therefore careful to ensure that the plaintiff gives full and proper particulars of all the confidential information on which he intends to rely in the proceedings. If the plaintiff fails to do this, the court may infer that the purpose of the litigation is harassment rather than the protection of the plaintiff’s rights and may strike out the action as an abuse of process” . 5.6 Seizure Mechanisms In exceptional circumstances, a party may be awarded a search order upon application to the court, allowing their representatives to enter the defendant’s premises and search for, remove and detain any documents, information or mate - rial pertinent to the case. In the English courts, search orders are con - sidered an extremely invasive measure and will only be awarded (under the court’s power derived from Section 7(1) of the Civil Procedure Act 1997) for the purpose of preserving evidence in the most extreme cases. The claimant must show both that it has a strong case and that there are good reasons for believing that the defendant is likely to destroy evidence. Seizures are also available as an interim measure under Regulation 11(3). This provision is yet to be tested in the UK courts.
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