Trayport Ltd v E-Star Trading GmbH (a company incorporated under the laws of Germany)

Hearing dates: 10–12 June, 9 July 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 06 February 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

HH JUDGE Davis-White KC

Judge Davis-White KC:

Introduction

I have before me two applications, broadly, to set aside an order made by Master Pester on 30 January 2024. That order gave permission to serve the Claim Form and Particulars of Claim (“PoC”) on the First to Fourth Defendants at various addresses in Germany and ancillary orders in connection therewith (the “Order”). There have been various orders extending time both for service of the Claim Form and PoC and for the making of the two applications before me. The Order of Master Pester was made on the Claimant's application by application notice dated 10 January 2024.

The first application in time is made by the 1 ^st Defendant, E-Star Trading GmbH (“E-Star”), and the Second Defendant, Exxeta AG (“Exxeta”). The application notice is dated 20 December 2024. E-Star and Exxeta are represented before me by Mr Tom Mountford and Mr Grant Kynaston instructed by Jones Day. When referring to Mr Mountford's submissions, I am referring, by way of shorthand, to the submissions of the entire counsel team.

The second application in time is made by the Third Defendant, Mr Karsten Schmid (“Mr Schmid”). The application notice is undated but was issued on 17 April 2025. Mr Schmid is represented before me by Mr Daniel Burgess instructed by Blake Morgan LLP.

The Fourth Defendant does not appear and is not represented before me. As I understand it, there has not been (or at the time of the hearing before me had not been) service of the Claim Form and PoC on him pursuant to the order of Master Pester dated 30 January 2024.

The Claimant, Trayport Limited (“Trayport”), is represented before me by Mr Jonathan Moss, leading Ms Laura Adde and Mr Joseph Kay, instructed by Pinsent Mason LLP. Pinsent Mason LLP came onto the record for the Claimant comparatively recently, on or about 2 June 2025. Prior to that, Trayport was represented by Deloitte LLP. However, Mr Harris, who is now the supervising partner at Pinsent Mason LLP, was formerly the relevant partner at Deloitte LLP. When referring to Mr Moss'ss submissions, again I am referring, by way of shorthand, to the submissions of the entire counsel team.

I am grateful to the legal teams for all parties for the helpful and focussed manner in which submissions and evidence was directed and also for the management of the documents put before me. I apologise for the delay in producing this judgment but should confirm that I have had the benefit of transcripts of the hearing in this case. I have also had the benefit of a letter dated 2 December 2025 from the First and Second Defendants' solicitors, Jones Day, pointing out the Court of Appeal decision in Playtech Software Limited v Games Global Limited [2025] EWCA Civ 1472 and sending me a copy of the judgments on that appeal. No party asked to make or submitted any further submissions in the light of the Court of Appeal's judgment.

To obtain an order for service of proceedings outside the jurisdiction on a defendant, a claimant will have to:

(1) establish that each claim raises a serious issue to be tried, that is, that it is a claim with a real (as opposed to fanciful) prospect of success;

(2) establish to the relevant standard, which is that there is “a good arguable case”, that each claim falls within one of the jurisdictional gateways set out in paragraph 3.1 of CPR PD 6B;

(3) establish to the relevant standard that England is the appropriate forum;

(4) make full and frank disclosure,

(see CPR r6.37(3)). The requirement set out in (4) above arises from the nature of the application for service out as being one that is made without notice to the Defendant.

The grounds of challenge to the order for service out, and to this court taking jurisdiction over the relevant Defendants, are, in large part, common to the First to Third Defendants. In broad terms it was said, at least at the commencement of the hearing before me, that the Claimant had failed in meeting each of the four required criterion as follows:

(1) None of the claims brought by Trayport raised a serious issue to be tried;

(2) A number of the claims raised by Trayport did not fall within one of the jurisdictional gateways in CPR PD6B paragraph 3.1. This point has since fallen away as a result of Mr Moss's skeleton argument raising and relying on further jurisdictional gateways;

(3) England is forum non conveniens in that it is not clearly or distinctly the more appropriate forum than any other available foreign forum (and in particular, Germany);

(4) The Claimant, on the application before Master Pester, failed in its duty of full and frank disclosure and fair presentation, such duty arising from the fact of its application being made on a without notice basis.

Accordingly, it is submitted, the order for service out should be set aside.

At the commencement of the hearing before me, the Claimant made a without notice application for an order for confidentiality which, on examination, was identified as being an order pursuant to CPR r31.22, regarding the use that parties could make of a particular document, and an order limiting access to the court file, pursuant to CPR r5.4. For the reasons given at the time I made the first order but adjourned consideration of the second order until judgment on the hearing. The position may therefore need to be dealt with in any order to give effect to this judgment. .

I shall deal with the particular causes of action relied upon by the Claimant in more detail later in this judgment. However, it is useful to give a flavour of them now. In broad terms the main claims are in respect of alleged misuse of/access to the Claimant's software, contained in or forming a software platform called “Joule”. I explain Joule in more detail later on this judgment but, put very broadly, it is a software platform containing a number of databases and which provides customers of Trayport, who buy access to it, dealing and trading information. It also enables customers to make deals in the wholesale energy commodities markets. Different customers may have different levels of access to Joule. The Joule platform is alleged to contain matters that are the intellectual property of Trayport, protected by, among others, copyright law, trade secrets law, database law, the law of confidentiality and so on.

The misuse of Trayport's information is largely pleaded as a matter of inference. The overall primary misuse identified is the use of confidential information belonging to Trayport in the creation of a new software platform belonging to and marketed by E-Star which is said to replicate functions of Joule and which, in effect, competes with it (see e.g. paragraph 91 of the Particulars of Claim (“PoC”) (the “Copying Case”). One of the matters upon which such inference is based is a series of alleged accesses said to have been made by employees of the First and Second Defendants, E-Star and Exxeta (together the “corporate Defendants”) to the Trayport platform by using individual accounts granted to the corporate Defendants (or its employees) by customers of Trayport, but in alleged breach by those customers of the agreements with Trayport under which the customer is entitled to access and interact with (and download information from) Joule.

Again only in broad terms, and without breaking down which claims are brought against which Defendant, the PoC assert copyright infringement; database infringement; breach of a non-disclosure agreement; breach by Mr Schmid of employment and termination of employment contracts; inducing breach of contracts by customers of Trayport; procurement of breach by Mr Schmid of his employment/termination of employment contracts; breach of equitable duties of confidence; breach of the Trade Secrets (Enforcement, etc) Regulations 2018; infringement of the Trade Marks Act 1994; vicarious liability of E-Star and Exxeta for the unlawful acts of others (including the Fourth Defendant) and, for good measure, unlawful means conspiracy. There are two further discrete claims which are that, in breach of an employment contract and a termination agreement relating to such employment with Trayport, Mr Schmid, now a managing director of E-Star, wrongly solicited employees of Trayport to join E-Star and/or has gone to work with a competitor to Trayport, namely E-Star, during a period when he was prohibited by such contracts from working for competitors. Other aspects of these contracts are also relied upon as mirroring other direct claims against Mr Schmid (e.g. for breach of equitable duties of confidence).

The Evidence

The evidence before me comprised a number of witness statements, including one provided to me between the main part of the hearing in June 2025 and the final part of the hearing in July 2025....