A judge has said that he could not say for sure that a claim for breach of confidence was without merit based solely on an expert's view that the information in dispute was in the public domain. He said the case must go to a full trial.
A mosquito net manufacturer took a competitor firm founded by ex-employees to court, claiming that that company's net was the result of an abuse of confidential information.
The newer company, Bestnet, applied to have the original action by older firm Vestergaard struck out for being vexatious and an abuse of process.
Bestnet claimed that Vestergaard had not made its claims in enough detail or backed them up with evidence. It said its rival had not showed exactly what information Bestnet was meant to have used, and how.
Confidentiality is protected by law if it can be shown that information is truly confidential and if it is imparted to the other party in a way that creates an obligation of confidence.
Vestergaard claimed that Bestnet founder Torben Holm Larsen, a former head of production for Vestergaard, had copied 56,000 computer files in the months before giving his notice. Larsen's evidence said that this was simply a backup for his laptop.
The case is one of a number; there are also suits in France, India and Denmark.
For its request to have the case struck out, Bestnet had a report produced by an expert which said that the information used by Bestnet in the production of its mosquito net was available publicly and from the industry generally.
On that basis it asked the High Court to throw the case out of court without a full trial. The judge, Roger Wyand QC sitting as a deputy High Court judge, did not, saying that the expert's report was not sufficient evidence for striking out Vestergaard's claim.
"It may well be that, at trial, [Bestnet's expert] Professor Stevens' Report will be held to be decisive," said Wyand. "I am merely attempting to show examples as to why I cannot possibly decide at this stage of the proceedings and without a proper examination of the facts, that the Claimants' case is without merits."
Bestnet said that Vestergaard had not detailed its case properly, and Wyand agreed that this had been true, but said that the case had now been properly stated. "I do not think that a failure to particularise properly at an earlier stage can justify striking out a claim if it is properly particularised before the striking out application is heard," he said.
Wyand said that he was making no judgment on which party should win the case as a whole, but that he had not been persuaded that the case was without merit. He ordered a full trial.
"In all the circumstances I am not prepared to strike out this action for being vexatious and an abuse of process. I am not expressing any view as to the merits of the case. That would be wrong. I am only ruling that the Defendants have not overcome the burden of establishing that the action should be struck out," he said.