In a case involving the alleged theft of confidential information by ex-employees, the High Court has granted a far-reaching interim order to secure the ex-employer’s confidential information in the period up to trial.
The claimants, all companies within the Arthur J Gallagher group of companies (Gallagher), provided insurance brokerage services. It was alleged that an ex-employee of Gallagher, Mr Skriptchenko, had taken a confidential client list which his new employer, Portsoken Ltd, had loaded onto an electronic platform and used to approach more than 300 of Gallagher’s clients. As a result of this claim a disclosure order was made. The documents disclosed by the defendants revealed much more widespread use of Gallagher’s information involving more individuals and more business units. The documents also made it clear that the defendants knew that what they were doing was wrong and revealed what the judge referred to as a “high degree of subterfuge”. For example, one of the emails contained the following passage:
“…I don’t think you can formally put these in any presentation as we would obviously be breaching confidentiality but would suggest that we keep in our back pocket to show on a nudge nudge wink wink basis to interested parties.”
This led the judge to believe that the defendants could not be trusted to search for and delete the claimant’s confidential information themselves, which would have been the more usual order. She granted an order for search of the defendant’s computers by an external expert and destruction of any of the claimant’s confidential information discovered there.
Cases involving confidential information taken by employees when they move jobs inevitably involve a serious break down in trust and high feelings. Employers will feel reassured that such orders are available. However, this was an extreme case. Not only was it felt that the defendants could not be trusted, but the judge also felt that there was a strong likelihood that the claimants would win the case at trial. It remains to be seen whether such interim orders will become more common in future.
Case: Arthur J Gallagher Services (UK) Ltd and Ors v. Alexandre Skriptchenko and Ors. [2016] High Court
Tom Lingard