In Arthur J. Gallagher Services (UK) Ltd and ors -v- Skriptchencko and others 2016, the High Court made an order allowing a previous employer to inspect electronic devices belonging to ex-employees and their new employer and to destroy any of their confidential information found as a result of this search.
The first defendant, Mr Skriptchencko, worked for the Claimant, a provider of insurance brokerage services. Mr Skriptchencko moved employment to another insurance broker. The Claimant issued a claim against Mr Skriptchencko and his new employer for wrongful use of its confidential information after it emerged Mr Skriptchencko had taken a client list which he was using to seek and do business with Arthur Gallagher’s clients on behalf of his new employer. Arthur Gallagher sought an order allowing them to search and image the defendants’ electronic devices and to destroy any of their confidential material found on these devices in order that it would not continue to be used. The Court granted the order sought but subject to certain safeguards.
There was no authority supporting the granting of such relief. In Warm Zones -v- Thurley & Anor 2014, an order was granted an order for imaging and inspection of the defendants’ computers (though not for destruction). Where a mandatory interlocutory injunction is sought, the principles to be applied are those in Nottingham Building Society -v- Eurodynamics 1993 and further the American Cyanamid principles.
The Court felt justified in granting the order because it felt assured Arthur Gallagher would be able to establish the defendants had taken their confidential material at trial; the defendants had already admitted taking and knowingly misusing the information in their defence. The evidence also indicated the defendants could not be trusted to seek and delete the relevant information themselves. The Court introduced safeguards such as: the use of an external expert appointed by the defendant to search the devices, the parties were to agree the search terms, and the information which fell within the order would be retained until after the trial (but would not be accessible to the defendants during this period).