UK Law and Practice Contributed by: Nicola Dagg, Steven Baldwin, Rory Clarke and Ashley Grant, Kirkland & Ellis International LLP
5.8 Maintaining Secrecy While Litigating In its inherent jurisdiction, the court is able to close hearings and declare certain evidence confidential, and the parties and court can limit information to “confidentiality clubs” . Parties may also apply under CPR 5.4(c)(4) for an order to keep statements of case confidential and out of the public domain. Furthermore, the Directive/Regulation specifical - ly requires that trade secrets remain confidential during and after legal proceedings. Regulation 10(1) prevents those who take part in trade secret proceedings (including parties, lawyers, experts and court officials) from using or disclosing the trade secret or information alleged to be a trade secret. This subsists until the court finds that the information was not a trade secret or where it enters the public domain (Regulation 10(3)). The court may also restrict access to a document or hearing, or redact its judgment under Regulation 10(5). These steps can be taken on the applica - tion of a party or its own initiative (Regulation 10(4)). Parts of the judgment can be redacted in accordance with Regulation 18. In JC Bamford Excavators Limited v Manitou UK Limited & Anor [2023] EWCA Civ 840, the Court of Appeal upheld a trade secrets exception to the open justice principle in patent litigation. The Court of Appeal recognised that a defendant’s disclosure of trade secrets in its defence should not automatically become public information. 5.9 Defending Against Allegations of Misappropriation Best practice for a defendant in a trade secret litigation is to show that the alleged trade secret does not meet the required standards of a trade secret – for example, to attack each of the ele - ments to show that the alleged trade secret was not secret, not commercially valuable or that rea -
sonable steps were not implemented to keep it confidential or that the information was generally known within the industry in question. If appli - cable, the defendant can also attempt to show that the use or disclosure was within the scope of permitted use – for example, the alleged use may be within the scope of the interpretation of the joint venture contract. There are limited defences available on public interest and whistle-blower protection grounds, but these are unlikely to be available to most defendants in trade secrets litigation. 5.10 Dispositive Motions The UK courts have case management powers over their cases. While there are no specific dis - positive motions in relation to trade secrets pro - ceedings, UK courts routinely split the question of liability (first) and relief/quantum (second) into separate hearings. Furthermore, parties can apply for a separate question where the answer may dispose of the action in its entirety. For example, the defendant can apply for a strike out of the claimant’s plead - ing, and the claimant can apply for a summary judgment. Ultimately, this is within the judge’s discretion. 5.11 Cost of Litigation The costs of a proceeding are widely variable depending on the technology involved and the experts and/or experiments required. Litigation funding is available in the UK. See also 7.5 Costs .
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