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Breach of Confidence Commercial Dispute Resolution September 2012 Newsletter Breach of Civil procedure Domestic International Intellectual Settlement confidence Page 7 arbitration arbitration property/ Page 15 Page 1 Directors Page 10 Page 12 information News Contract Page 9 Jurisdiction technology Page 16 Page 2 Page 10 Page 14 Breach of confidence Court finds that Formula One racing car designs were copied for a competitor and assesses damages Force India Formula One Team v 1 Malaysia Racing Team SDN BHN & Ors (2012) The High Court offered valuable terminated in 2009, the Consultants guidance on the ingredients necessary worked for Lotus. Force India claimed to found an action for breach of that the design files were misused by confidence and the measure of Lotus. The defendants conceded that damages claimants can expect some of the Consultants’ employees to receive. had engaged in some copying of the files containing Force India’s The claimant was a Formula One car designs. racing team operator, Force India. The first and second defendants operated The High Court emphasised that “Lotus”, another Formula One racing to found an action for breach of team. The third defendant, Mr confidence the information had Gascoyne, worked as chief technical to have the necessary quality officer first for Force India and of confidence, communicated then for Lotus. The fourth and fifth in circumstances importing an defendants were aerodynamic design obligation of confidence and that consultants (the Consultants) who there was an unauthorised use of had created computer aided design the information to the detriment files for the purpose of designing of the party communicating it. In cars for Force India, pursuant to so far as the Force India design files their development contract with were used to take a short cut for the it. This contract provided that they benefit of Lotus, the Court found would deal in the utmost good faith, that the Consultants’ employees had that intellectual property created misused confidential information or developed by the Consultants akin to a trade secret, commenting became Force India’s sole property that the “files were the product and that they and their employees of a considerable degree of skill were under a duty of confidentiality and labour… comprised valuable and obligation of non-disclosure. information… were not in the public After its contract with Force India was domain; they were protected by The merged firm of Clyde & Co and Barlow Lyde & Gilbert 1 express contractual obligations of confidence, including information would have been “sold” but for the breach, the obligations directly affecting [the Consultants’] employees.” claimant can recover the market value of the information Accordingly, the Court decided that there had been a as between a willing seller and a willing buyer; and (iv) breach of confidence by the Consultants’ employees but where a claimant cannot prove financial loss as a result not by Lotus or Mr Gascoyne as the misuse of the design of the misuse, it may recover such sum as would be files had not been at their request. negotiated between a willing licensor and a willing licensee acting reasonably as at the date of breach. The Court emphasised that the same approach to assessing damages should be adopted whether the breach NB: The Court held that a willing licensor and willing of confidence is contractual or equitable. The Court licensee acting reasonably would have negotiated a explained that: (i) where confidential information is used fee of €25,000. That figure was fair, equitable, effective, to manufacture and sell products and the claimant’s proportionate and dissuasive, as is required by article profits have been diminished as a result of the breach, he 13 of the Directive on the enforcement of intellectual can recover for loss of profit; (ii) where the confidential property rights 2004/48 which applied as the confidential information is exploited by granting licences to others, and information here amounted to technical trade secrets licence revenue has been diminished, the claimant can which are classed as intellectual property rights within recover the lost revenue; (iii) where the confidential the Directive. Contract Court of Appeal supports the Supreme Court’s common sense approach to interpreting contracts In the case of Chalabi & Others v Agha-Jaffar & Another (2012) Endorsing the Supreme Court’s approach in Rainy Sky v The relevant clause under dispute stated that: Kookmin (2011), the Court of Appeal confirms that when “the consideration price stated in Clause 3 above represents faced with two possible interpretations of a contract, it will and amounts to three fifths or more of the sum which prefer the more commercially sensible one. the Purchasers are to and will receive for the sale by The defendant purchasers warranted to the claimant the Purchasers of the entire issued share capital of the vendors in a share sale and purchase agreement that the Company”. price paid for certain companies would amount to three Dismissing the appeal, the Court of Appeal held that the tax fifths or more of the sum that the defendants would later payment did not form part of the purchase price received for receive from their onward sale of the same companies to the sale and was therefore not recoverable by the claimants. a third party. The onward sale was structured differently The purpose of the payment was to cover an expense and in such a way that it increased the defendants’ tax incurred by the defendants as a result of structuring the liability. The third party buyer in the onward sale agreed sale in a particular way. The Court held that it did not make to cover the cost of any additional tax payable. Hence, on commercial sense to treat the tax payment as part of the completion of the onward sale, in addition to the purchase purchase price. To do so would effectively allow the claimants price, the third party buyer paid $3.17m to the defendants to pocket three-fifths of the tax payment whilst leaving the to cover the additional tax liability. The claimants defendants to pay virtually the whole of the increased tax commenced proceedings, claiming that the $3.17m was liability. Following the approach advocated by the Supreme part of the price that the defendants had received for the Court in Rainy Sky S.A. v Kookmin (2011), the Court of sale and therefore they were entitled to three fifths of the Appeal unanimously agreed that such an interpretation total sum received by the defendants under the terms of would be unfair on the defendants as it would not lead to a their agreement. commercially sensible result. 2 High Court follows suit and interprets agreement in line with business common-sense RGI v Synergy Classic (2012) This is another case where the courts have seen fit to The High Court decided that the word “investor” in a share interpret a contract in line with “business common sense” subscription and option agreement did not only mean where the clause in question had two possible alternative legal and beneficial owners of shares but also included meanings. beneficial owners of shares held by a nominee. This was because the agreement envisaged the shares being credited Synergy Classic Ltd (Synergy) entered an investment to a CREST account. Shares so held were commonly held agreement with RGI International Ltd (RGI). This envisaged through nominees. Therefore to construe “investor” as only that Synergy would acquire two different tranches of applying to legal and beneficial owners would run contrary shares, first shares and option shares. If Synergy paid the to the contractual scheme whereby shares were to be held consideration for the option shares but RGI failed to allot through the CREST system. If “investor” was construed in and issue them to Synergy within five days in accordance the narrow and limited manner suggested then there were with clause 5.2(b), the agreement provided that Synergy other provisions of the agreement that would be rendered could, via a put option notice, require RGI to purchase the unworkable or nonsensical. The judge expressly stated that first shares from Synergy for a set price – US$99 million. the literal construction of the relevant clause should “yield to Synergy later alleged that there had been a breach of business common sense, the importance of which has been clause 5.2(b) as the option shares had not been allocated re-emphasised in the recent Supreme Court decision in The properly as they had been registered in the name of a Rainy Sky (2011)”. Hence there was no breach of clause 5.2(b) nominee. Hence, Synergy alleged that it was entitled to and Synergy had no right to exercise the put option. serve the put option notice. The net effect of this would be such that Synergy would get back more than it had paid for all the shares, whilst also keeping the option shares. Airport’s contractual obligation to use best endeavours took precedence over looking after its own commercial interests Jet2.com v Blackpool Airport Ltd (2012) The Court of Appeal clarified the lengths that one party Dismissing the appeal, the Court of Appeal found that should go to when obliged to use its “best endeavours” or the parties to the agreement had intended that clause 1 “reasonable endeavours” in a contract. Besides finding that should give rise to legally binding obligations and that the these phrases were not too uncertain to be unenforceable, obligations to use reasonable or best endeavours were not the Court found that a party’s obligation to use its best too uncertain to be enforceable, provided that the object endeavours may in certain circumstances, amount to of the endeavours could be ascertained with sufficient having to act contrary to its own commercial interests.
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