Arthur J Gallagher Services (UK) Ltd and Ors v Alexandre Skriptchenko and Ors [2016] EWHC 603

This interim stage of the case involves an application by the claimants for interim relief prior to the main proceedings brought by the claimants against the defendants for breach of their confidential information.

The proceedings were initiated by two claimants, both being part of the Arthur J Gallagher group (AJG Group) of companies, against two defendants, the first being Mr Skriptchenko, a former employee of the claimants and the second being Portsoken Ltd, Mr Skriptchenko’s new employer. In July 2015 the defendants admitted to taking the claimants’ client list and submitted to an injunction requiring them to deliver up to the claimants’ solicitors all document belonging to the claimants. 4000 documents were delivered which revealed that further individuals were involved in wrongful use of the claimants’ and other AJG Group companies’ confidential information. Accordingly, the claimants were permitted by consent on 17 December 2015 to amend their particulars of claim and add further claimants (all companies within the AJG Group) and further defendants (all previous employees of the AJG Group) to the proceedings. At this point the defendants all gave undertakings not to use the claimants’ confidential information and not to deal with restricted clients until the main hearing, however they did not agree to confidential information being deleted from their electronic devices. Search for and deletion of information was the issue to be dealt with at the interim relief hearing in February 2016.

The claimants argued that, in addition to the defendants ceasing use of the confidential information, that destruction of electronic versions of the information should also be ordered at this interim stage. The claimants’ suggested that copies of the deleted information should be taken so it could be restored should it be decided that such information was not confidential at the main trial. The defendants argued that search for and retention of confidential information should only be ordered at the end of the trial and that an interim order requiring this would be invasive, unprecedented and unnecessary. The defendants pointed out that they had freely complied with the previous injunction leading to 4000 documents being disclosed and that there was no basis for making an interim order at this point.

In deciding whether to grant mandatory interim relief Mrs Justice Slade considered the principles from Nottingham Building Society v Eurodynamics Systems [1993] FSR 468 which states the overriding consideration is to consider which course (granting or not granting mandatory interim relief) is likely to involve the least risk of injustice in the event that the decision turns out to be wrong. Other considerations to take into account are that a mandatory injunction requiring a party to take positive steps carries a greater risk of injustice compared to a merely prohibitory injunction. Furthermore, an interim mandatory injunction should only be granted if the court believes the claiming party has a high chance of success at trial. The American Cyanamid principles were also referred to which include questioning whether there is a serious issue to be decided at trial and, if so, what is the balance of convenience. It should also be considered whether damages would be an adequate remedy.

Mrs Justice Slade was of the opinion that the claimants had shown a strong case that their claim would succeed at trail. In particular Slade considered that the defendants had already admitted to taking the claimants’ confidential information and using it. Additionally, the material already disclosed showed how some of the defendants had been using the claimants’ confidential information in full knowledge that it was wrong. Finally, the court found whilst the defendants had willingly complied with the previous order by disclosing 4000 documents the afore mentioned email “shows a high degree of subterfuge in the use of the claimants’ confidential material”. Accordingly, Mr Justice Slade found that the balance of convenience favoured granting a mandatory interim injunction against the defendants. The injunction required the defendants to appoint an external computer expert, deliver their devices to the expert to be imaged and searched for confidential information and for confidential information found to be deleted from the defendants’ devices. In order to safeguard the defendants’ interest, the order was formulated so they were the party required to appoint the expert so as to keep their own confidential information away from the claimants. The order required the expert to image and search the defendants’ devices, show confidential information found to the defendants, for them to agree to its deletion. If the defendants did not agree it would be up to the expert to decide whether to delete the information pending trial. Copies of the information was to be retained by the expert pending trial so it could be restored to the defendants in the event that the claimants did not succeed in the main proceedings. There was liberty for the defendants to apply to the court if they disagreed that any information should be withheld until trial.

Judgment Date: 11 FEBRUARY 2016