UK Law and Practice Contributed by: Nicola Dagg, Steven Baldwin, Rory Clarke and Ashley Grant, Kirkland & Ellis International LLP
no longer constitutes a trade secret (Regulation 15(3)). As noted in the foregoing, Regulation 3 of the Regulation provides that common law remedies available in an action for breach of confidence remain available to claimants. The claimant can apply for relief both under common law remedies and the remedies under the Regulation. Where a defendant misappropriates confidential documents to gain an unfair head start, courts may issue “springboard injunction” to neutral- ise that advantage. A springboard injunction is a form of injunctive relief aimed at preventing a defendant from exploiting an unfair competitive advantage gained through the misuse of confi - dential information. In JC Bamford Excavators Limited v Manitou UK Limited & Anor [2023] EWCA Civ 840, the Court of Appeal upheld that a person entrusted with confidential information in circumstances imposing an obligation of con - fidence will be liable for breach of confidence if they use the information as a short cut rather than undertaking the effort of lawful reverse engineering. The court clarified that, in such cas - es, a springboard injunction may be appropriate as any injunction must only last for such period as will deprive the defendant of the advantage it has obtained by taking the short cut. This case cites the following case in support of this princi - ple: Terrapin v Builders Supply Co (Hayes) [1967] RPC 37, as analysed in Vestergaard Frandsen A/S v Bestnet Europe Ltd (No 2) [2009] EWHC 1456 (Ch), [2010] FSR 2 at [42]–[51], [77]. In relation to former employees, an employer may also be able to enforce a restraint of trade against an employee moving to a competitor. This will depend on the contractual background as well as the reasonableness of those restric -
tions, and the ability of the employee to continue to earn a living if so restrained. 7.4 Attorneys’ Fees Concerning the recovery of attorneys’ fees in a civil litigation, 7.5 Costs . 7.5 Costs The general rule is that the unsuccessful party pays the successful party’s costs. The court has the power to make whatever costs orders it finds most appropriate (CPR 44). Costs awards can be reduced or limited due to poor conduct, fail - ure to comply with pre-action protocols or other factors. In making an order as to costs, the court must consider the overriding objective that cases be dealt with “justly and at proportionate cost” . When considering whether costs incurred are proportionate, the court will consider: • the amount in dispute; • the value of any non-monetary relief sought; • the complexity of the case; • any additional costs relating to poor conduct on behalf of the unsuccessful party; and • any other relevant factors in the circumstanc - es. The general rule is that costs will be assessed on the standard basis, which allows for the recov - ery of proportionate costs. This may mean that some costs are not recoverable and others are reduced. Parties should expect that if costs are calculated on the standard basis, the success - ful party will recover 60–75% of its costs. In assessing the proportion of its costs that a suc - cessful party may be able to recover, the court will typically consider the number of issues on which that party succeeded, as well as the time
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