In L'Oreal SA & Ors v Ebay International Ag &Ors - Lawtel 19.9.08 the applicant company sought an order for disclosure of confidential schedules to a Tomlin form order made in a claim by the respondent company. The respondent had brought a claim against the applicant and others for infringement of its trade mark. The respondent had settled its claim against all Defendants except the applicant. The settlement agreements took the form of a Tomlin order, with the terms of the settlement contained in schedules to the order. The applicant was not a party to the settlement and the respondent had refused to disclose details of the settlement to it. The applicant submitted that the schedules should be disclosed since the settlement might have released it from liability, as all parties had been sued jointly. The respondent argued that the schedules had not formed part of the Tomlin Order and that the court should respect the confidentiality of the agreements.
The Chancery court held that the settlement agreement had not formed part of the formal court order. However, the confidentiality of the agreement was not a sufficient ground upon which to refuse disclosure, but was something to be taken into account. Although the scheduled agreement would only have limited effect, in that it would not be the end of the pleaded case against the applicant, on balance the applicant should be able to inspect the confidential terms so that it could take a view about whether they amounted to a release of liability. In the first instance, inspection should be made by the applicant's legal advisers only.