![Legal Updates from Eversheds’
Lawyer Development Team
B-Brief
Application for disclosure of commercially
sensitive documents
Aqua Global Solutions Ltd v
Fiserv (Europe) Ltd
[2016] EWHC 1627 (Ch)
22 July 2016
Press To](https://image.slidesharecdn.com/b-brief-applicationfordisclosureofcommerciallysensitivedocuments22july2016-160810160630/85/B-brief-application-for-disclosure-of-commercially-sensitive-documents-1-320.jpg)
![Eversheds LLP | 22/07/2016 |
• Rubin v Expandable Ltd [2008] - ‘general ethos of
the CPR is for a more cards on the table approach to
litigation…I look upon the mention of a document in
pleadings as a form of disclosure…’ Rix LJ
• But the court can decline such an order where:
• a document is privileged and privilege has not been waived;
• large number of documents referenced in statement of case so
request is disproportionate; and
• the court has power to decline to permit inspection where the
document is confidential unless restrictions are put in place to
avoid the document being leaked
• Redaction is permissible but blanking out whole
sections is more susceptible to challenge –
Documentary Evidence - Charles Hollander QC
The law](https://image.slidesharecdn.com/b-brief-applicationfordisclosureofcommerciallysensitivedocuments22july2016-160810160630/85/B-brief-application-for-disclosure-of-commercially-sensitive-documents-4-320.jpg)
![WARNING
1. For the purpose of abbreviation and presentation, only
the main aspects of the case have been mentioned
2. This information is for guidance only and should not be
regarded as a substitute for research or taking legal
advice
Aqua Global Solutions Ltd v Fiserv (Europe) Ltd [2016]
EWHC 1627 (Ch)
EVERSHEDS LLP 2016. The content and design of this briefing are subject to copyright owned by Eversheds or used
under licence from third party copyright owners. Eversheds LLP is a limited liability partnership.](https://image.slidesharecdn.com/b-brief-applicationfordisclosureofcommerciallysensitivedocuments22july2016-160810160630/85/B-brief-application-for-disclosure-of-commercially-sensitive-documents-8-320.jpg)
B brief - application for disclosure of commercially sensitive documents
- 1. Legal Updates from Eversheds’ Lawyer Development Team B-Brief Application for disclosure of commercially sensitive documents Aqua Global Solutions Ltd v Fiserv (Europe) Ltd [2016] EWHC 1627 (Ch) 22 July 2016 Press To
- 2. Eversheds LLP | 22/07/2016 | • Aqua Global (C) and Fiserv (D) entered into a contract, enabling D to supply C’s software ( ‘C’s Software’) to Tesco (the ‘Contract’) • Subsequently, D entered into an agreement with Tesco, licensing Tesco’s use of various software, including C’s Software (the ‘Licence Agreement’) • C alleged Tesco’s use of C’s software exceeded permitted volumes under the Contract and issued claim for breach of contract and copyright infringement • D referred to the Licence Agreement throughout the Defence. Also referenced in the List of Issues • D provided C with a heavily redacted version of the Licence Agreement (6 out of 71 pages remained visible), stating that the majority of the Licence Agreement was irrelevant to the issues in dispute and that it contained confidential and commercially sensitive information Background
- 3. • C applied for inspection of the unredacted Licence Agreement relying on CPR 31.14 (a party may inspect a document mentioned in a statement of case) • D agreed to allow six members of C’s external legal team to view the unredacted Licence Agreement (the ‘Confidentiality Ring’) • C proceeded with its application, seeking to add two of C’s directors plus its in-house Counsel (the ‘Additional Individuals’) to the Confidentiality Ring • Key issue: How does the court balance the right of inspection under CPR 31.14 and the need to protect commercially sensitive information? The Application
- 4. Eversheds LLP | 22/07/2016 | • Rubin v Expandable Ltd [2008] - ‘general ethos of the CPR is for a more cards on the table approach to litigation…I look upon the mention of a document in pleadings as a form of disclosure…’ Rix LJ • But the court can decline such an order where: • a document is privileged and privilege has not been waived; • large number of documents referenced in statement of case so request is disproportionate; and • the court has power to decline to permit inspection where the document is confidential unless restrictions are put in place to avoid the document being leaked • Redaction is permissible but blanking out whole sections is more susceptible to challenge – Documentary Evidence - Charles Hollander QC The law
- 5. • In this case, a single document was sought which was directly relevant to the issues so starting point is that applicant is entitled to inspection • Inspection can be limited due to irrelevance or confidentiality • Ample evidence that document contained commercially sensitive information • Common ground there should be an order under CPR 31.22(2) restricting use of the document and prohibiting non-party access to the court file without a court order • Judge satisfied that Tesco’s interests could be adequately protected Decision of the Court (1)
- 6. • Unsatisfactory for C’s external legal team to have more information than C • Fundamental issue: To balance ability of C to conduct litigation without restriction and to prevent confidential information being misused • Held balance could not be maintained without disclosure of the Licence Agreement to the Additional Individuals • Unredacted Licence Agreement to be disclosed to Confidentiality Ring and Additional Individuals, subject to undertakings and an express restriction preventing them using information obtained from inspection of the document Decision of the Court
- 7. Eversheds LLP | 22/07/2016 | If seeking disclosure: • Consider confidentiality ring to limit exposure • Highlight importance of documents to issues in case If resisting disclosure: • Consider redaction but try to avoid redacting large sections of text/whole pages • File evidence of commercial sensitivities • Seek an order restricting access to the court file without a court order and under CPR 31.22(2), restricting use of document • Note that it will be more difficult to avoid disclosure of a document which is directly relevant to issues in the case, than a document which is peripheral to the claim Learning Points Legal Updates from Eversheds’ Lawyer Development Team
- 8. WARNING 1. For the purpose of abbreviation and presentation, only the main aspects of the case have been mentioned 2. This information is for guidance only and should not be regarded as a substitute for research or taking legal advice Aqua Global Solutions Ltd v Fiserv (Europe) Ltd [2016] EWHC 1627 (Ch) EVERSHEDS LLP 2016. The content and design of this briefing are subject to copyright owned by Eversheds or used under licence from third party copyright owners. Eversheds LLP is a limited liability partnership.