UK Law and Practice Contributed by: Nicola Dagg, Steven Baldwin, Rory Clarke and Ashley Grant, Kirkland & Ellis International LLP
6. Trial 6.1 Bench or Jury Trial Trade secret proceedings are heard and decided by a single judge in the first instance. 6.2 Trial Process The claimant files its claim form and particulars of the claim that pleads the cause of action and states the requested relief. The defendant is then required to file an acknowledgement of service and a defence (and the claimant may reply). Usu - ally, one to two months after the close of plead - ings, there will be a case management confer - ence (CMC), at which the court will direct how the matter will progress to trial including in rela - tion to disclosure, factual and expert evidence, the exchange of skeleton arguments and a trial date. Fact witnesses give their evidence in chief by way of witness statements and are cross- examined during the hearing if required. Expert evidence is given by way of written report, and expert witnesses may also be cross-examined if required during the hearing. The parties provide written skeleton arguments ahead of the hearing, and further opening and closing submissions are made orally during the hearing (closing submis - sions are also exchanged in writing). The judge almost always reserves judgment and then pro - vides a written judgment, usually within three months. 6.3 Use of Expert Witnesses The UK allows for expert evidence. There are strict requirements to ensure the independence of the expert testimony, which are set out in CPR 35. The expert’s ultimate duty is to assist the court. Experts must prepare their own reports and cannot be actively prepared for cross-exam -
ination by the lawyers. Experts must agree to be bound by the CPR 35 requirements. The cost of experts varies depending on the field, type of expert, time commitment required and general complexity of the case.
7. Remedies 7.1 Preliminary Injunctive Relief
Interim injunctions are available by application to the court and are a discretionary equitable remedy. Injunction applications are usually heard on an inter partes basis (notice is given to the defendant) and can be heard urgently if required. For an interim injunction to be granted, under Section 37 of the Senior Courts Act 1981, the court must be satisfied that it is “just and con- venient” . This is generally established by follow - ing the test developed in American Cyanamid Co (No 1) v Ethicon Ltd (1975) UKHL 1. Requirements for Preliminary Injunctive Relief Firstly, there must be a serious question to be tried on the merits. This is generally regarded as a low threshold to satisfy. What needs to be shown is that the applicant’s cause of action has substance (ie, some prospect of success). Secondly, the court considers the “balance of convenience” . Some key considerations relevant to whether the balance of convenience favours the granting of an interim injunction are the fol - lowing. • Would damages be a sufficient remedy? • Is there irreparable harm? Delay in applying for an interim injunction will reduce the likelihood of obtaining one.
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