Abstract
The United Kingdom incorporates three separate and distinct legal jurisdictions, comprising English law (applicable in England and Wales), Scottish law and Northern Irish law, all of which are common law jurisdictions. This report focusses on the protections afforded to know-how and trade secrets under the English common law, as acknowledged and developed by the case law of the courts of England and Wales. In general terms the position under Scottish law is largely the same as that in England and Wales, albeit with variations in terms of practice and procedure that are outside the scope of this paper.
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Notes
- 1.
The Reporter gives thanks to Iain McDougall and Andy Harris of MBM Commercial for providing insight regarding the position under Scottish law.
- 2.
See Douglas v Hello! Ltd (No. 10) [2007] UKHL 21, for example.
- 3.
See Franchi v Franchi [1967] RPC 149.
- 4.
Jacob J at pt 31.
- 5.
Ibid pt 32.
- 6.
See Creation Records Ltd and Others v News Group Newspapers Ltd [1997] E.M.L.R. 444, for example.
- 7.
Lord Goff at pts 281[282].
- 8.
Lord Neuberger at pt 25.
- 9.
Whilst Section 43(1) of the Freedom of Information Act 2000 (“FOA 2000”) includes an exemption to the obligation upon public bodies to disclose information upon submission of a request under the FOA 2000 where the information requested constitutes a “trade secret”, Ministry of Justice guidance has acknowledged that the FOA 2000 does not provide a definition of that term and nor is there a precise definition of it in English law generally—see here: https://www.justice.gov.uk/downloads/information-access-rights/foi/foi-s43-exemptions.pdf. Note also that the exclusion for information that amounts to a trade secret under Section 43(1) FOA 2000 is not absolute and therefore the relevant information will only be exempt from disclosure if, in all of the circumstances of the case, the public interest in maintaining the exclusion outweighs the public interest in disclosing whether the public authority holds the information (FOA 2000 ss. 2 (1)–(3)).
- 10.
See Neill LJ at pt 135G.
- 11.
See Campbell v Mirror Group Newspapers Ltd [2004] UKHL, which is now the leading case in this area.
- 12.
Senior Courts Act 1981 s. 50.
- 13.
See the order of Arnold J at 114 in Vestergaard Frandsen A/S v. Bestnet Europe Limited (2009) EWHC 14556 (Ch), for example.
- 14.
CPR 31.3.
- 15.
CPR 31.22(1).
- 16.
- 17.
A full copy of the AIPPI UK Group response to Question 215 is available here: https://www.aippi.org/download/commitees/215/GR215united_kingdom.pdf.
- 18.
A copy of the full response paper is available here: file:///C:/Users/R3ddo9/Downloads/LSBO-Briefing-Trade-Secrets.pdf.
- 19.
At pt 44.
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Browne, M. (2017). United Kingdom. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Abuse of Dominant Position and Globalization & Protection and Disclosure of Trade Secrets and Know-How. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-46891-4_34
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