Vestergaard Frandsen A/S & Ors v Bestnet Europe Ltd & Ors, Court of Appeal - Chancery Division, June 26, 2009, [2009] EWHC 1456 (Ch)

Reporting Judge: [2009] EWHC 1456 (Ch)

President: Vestergaard Frandsen A/S & Ors v Bestnet Europe Ltd & Ors

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Extract

Vestergaard Frandsen A/S & Ors v Bestnet Europe Ltd & Ors, Court of Appeal - Chancery Division, June 26, 2009, [2009] EWHC 1456 (Ch)

Neutral Citation Number: [2009] EWHC 1456 (Ch)

Case No: HC06C04408

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 26 June 2009

Before :

THE HON MR JUSTICE ARNOLD

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Between :

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Mark Platts-Mills QC, Tom Moody-Stuart and James Whyte (instructed by Field Fisher Waterhouse LLP) for the Claimants

Peter Prescott QC and George Hamer (instructed by McGuireWoods London LLP) for the Defendants

Hearing date: 21 May 2009

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JudgmentApproved Redacted Judgment

MR JUSTICE ARNOLD :

Introduction

1. On 3 April 2009 I handed down in private a confidential judgment in this matter ([2009] EWHC 657 (Ch), ``the main judgment'') holding that the Defendants were liable for breach of confidence through misuse of VF's trade secrets. (Subsequently a redacted version of the main judgment has been made available to the public.) In the main judgment I left over for further argument the question of what remedies VF were entitled to. This is my judgment on that question and a number of related matters.

Applications to re-open the judgment

2. The main judgment was made available to the parties in draft in advance of 3 April 2009 and the parties were invited to submit proposed corrections to typing and other obvious errors in the usual way. Both sides submitted proposed corrections to typing errors. Neither side suggested that there was any matter which had not been properly dealt with in the main judgment.

3. On 22 April 2009 counsel for VF wrote to me to notify me of some additional typing errors which they had spotted. In addition, however, counsel for VF suggested that the finding in the main judgment at [513] that the Defendants had submitted nets for WHOPES I in March 2006 which derived from sample 114 in the Netprotect database was called into question by a point which they had omitted to notice during the trial but had realised subsequently. On 8 May 2009 junior counsel for the Defendants wrote to me to say that, if VF were to be permitted to re-open the finding at [513], then the Defendants would wish to re-open certain findings at [342] and [625]. I indicated to the parties that, if either side wished to apply to re-open the main judgment, then a proper application should be made.

4. On 13 May 2009 VF duly issued an application for the finding at [513] to be re-opened. On 18 May 2009 the Defendants issued an application for findings at [342], [606] and [625] to be re-opened.

5. These applications were both listed for hearing on 21 May 2009. Just before the hearing, however, counsel for VF informed me that VF would not be proceeding with their application. In response, counsel for the Defendants informed me that the Defendants would not proceed with their application either. During the course of the hearing, however, counsel for the Defendants explained to me that these were matters which the Defendants would nevertheless wish to pursue on appeal. In the light of that explanation, and for reasons that will appear, I consider that I should nevertheless deal with the points that have been raised.

Separate analyses

6. In the main judgment at [342] I stated:

``In the Defendants' closing submissions it was pointed out that the figures for analysed deltamethrin for samples 9 and 11 recorded in the database are calculated from two other figures. It was suggested that this was because the samples had been analysed twice, once at Gembloux and once at VF's Hanoi laboratory. No evidence was cited in support of this submission, and it is difficult to reconcile with the fact that the calculation takes the ratio of the two figures and not the average. In any event, I do not consider that this point is of any particular significance.''

7. The Defendants contend that I misdirected myself because there was evidence to support the submission. The statement that ``no evidence was cited'' is, I believe, correct. No evidence (other than the fact that the relevant entries in column AI of the Fence database state ``gem/VCH/VBH'' and ``GEM/VCH'') was cited in the relevant paragraph of the Defendants' written closing submissions, namely paragraph 12 of Confidential Annex 1. Nor was any evidence cited by counsel for the Defendants in his closing oral submissions so far as I can see from a brief review of the transcript. Now that it has been drawn to my attention, however, I accept that there was evidence in Dr Skovmand's seventh witness statement to support the submission.

8. In his seventh statement Dr Skovmand said that the VF Chemical Laboratory in Hanoi did a re-analysis of these two samples and found lower deltamethrin values than those found by Gembloux. He suggested that this may have been due to methodological errors by Gembloux. As he himself said, however, there are just two data points for Hanoi in this set of analyses ...

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