UK Law and Practice Contributed by: Nicola Dagg, Steven Baldwin, Rory Clarke and Ashley Grant, Kirkland & Ellis International LLP
If an interim injunction is granted, the court may require that the injunction applicant gives an undertaking in damages – ie, agrees to pay dam - ages to the respondent for losses caused by the granting of the injunction if later it is held that the injunction was wrongly granted (eg, if the court finds that the information in question was not a trade secret). Ex Parte Injunctions Ex parte injunctions (ie, without notice to the other side) are available in very exceptional cas - es, such as where the matter is so urgent that there may not be time to notify the defendant, or where there is real concern that the defendant may seek to dispose of evidence. In an ex parte hearing, the applicant must pro - vide full and frank disclosure to the court and disclose all matters that are material to the court (including legal principles that are not in its favour). If an ex parte injunction is granted, the court will usually make provision for a return date hearing, at which the respondent may con - test the injunction. Available Interim Measures Regulation 11 of the Regulation outlines avail - able interim measures, which include: • the cessation of, or (as the case may be) the prohibition of, the use or disclosure of the trade secret on a provisional basis; • the prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, exportation or stor - age of infringing goods for those purposes; and • the seizure or delivering up of the suspected infringing goods, including imported goods, so as to prevent the goods entering into, or circulating on, the market.
These provisions have not been tested in the UK courts but would probably be interpreted in a way that is consistent with the requirements of
those remedies at common law. 7.2 Measures of Damages
Under common law, the claimant may elect between damages and an account of profits. If the claimant elects an award of damages, it will need to show on the balance of probability the harm suffered by it. This may be by way of lost sales, lost contracts, lost royalties or any other compensatory measure. Punitive or exemplary damages are extremely rare. If the claimant elects an account of profits, the substantial body of the evidence is likely to be derived from the defendant’s disclosure. Regulation 3 of the Regulation provides that common law remedies available in an action for breach of confidence remain available to claim - ants where they provide wider protection to the trade secret holder than provided under the Reg - ulation. The Claimant can apply for relief both under common law remedies and the remedies under the Regulation. Regulation 17(1) of the Regulation sets out the mechanism for assessing damages. The damag - es should be “appropriate to the actual prejudice suffered as a result of the unlawful acquisition, use or disclosure of the trade secret” ie, com - pensatory damages. The court may take into account “appropriate factors” , including: • negative economic consequences, including any lost profits that the trade secret holder
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