Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others

JurisdictionEngland & Wales
Judgment Date26 June 2009
Neutral Citation[2009] EWHC 657 (Ch),[2009] EWHC 1456 (Ch),[2007] EWHC 2455 (Ch)
Docket NumberCase No: HC06C04408,Case No HC06C04408
CourtChancery Division
Date26 June 2009
(1) Vestergaard Frandsen A/S
(2) Vestergaard Frandsen SA
(3) Disease Control Textiles SA
(1) Bestnet Europe Limited
(2) 3t Europe Limited
(3) Intection Limited
(4) Intelligent Insect Control Limited
(5) Torben Holm Larsen
(6) Trine Angeline Sig

[2007] EWHC 2455 (CH)


Mr Roger Wyand QC

(Sitting as a Deputy High Court Judge)

Case No HC06C04408



Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Thomas Moody-Stuart (instructed by Field Fisher Waterhouse) for the Claimants.

Mr George Hamer (instructed by Grundberg Mocatta Rakison LLP) for the Defendants

Hearing date: 27 June 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic

Mr. Roger Wyand QC


This is an application by the Defendants to strike out the action on the grounds that it is vexatious and an abuse of the process. The action in question is for breach of confidence. It is brought against two ex-employees of the Claimant group of companies and four companies owned and controlled by those ex-employees. (I shall refer to the parties as “the Claimants” and “the Defendants” without distinguishing between the various Claimants or Defendants respectively unless it is important to identify them more precisely.) The individuals are resident in Denmark, the corporate Defendants are all organised and existing under the laws of England and Wales.


The papers on this application amount to some nine lever arch files plus substantial skeleton arguments from both sides. I was originally told that I would need half a day's reading before the hearing. That was increased to five hours. The hearing lasted a day. The evidence is detailed and involves allegation and counter-allegation. Even with five hours reading I was able to get little more than a general impression of the case before the hearing and have had to do considerably more reading after the hearing.


The subject matter of the dispute is an insecticidal net product, called Netprotect, developed by the Defendants. This is a mosquito net made from polyethylene with an insecticide incorporated into the plastic matrix. There are other ingredients to stabilise the plastic and the insecticide amongst other things. Such products are intended for use in malaria infested areas. They require World Health Organisation approval and to gain this there are various tests, including washing cycle tests, that must be passed. The Claimants say that the Defendants developed this product using confidential information relating to the development of one of the Claimants' products called Fence, which is also a polyethylene net with an insecticide incorporated into the plastic matrix, albeit that Fence is not a mosquito net as commonly understood in that it is intended to protect cattle rather than people. It is, as its name suggests, a fence.


As one would expect with an application of this nature there has been no cross-examination of witnesses and, accordingly, I am not in a position to resolve any conflicts of evidence. The Defendants have the onus of establishing that the claim is vexatious and an abuse of process.


To understand part of the Defendants' complaint it is necessary to go into the history between the parties including correspondence between solicitors right up to shortly before the hearing before me. The Fifth Defendant was the Claimants' head of production until his departure on 31 st August 2004, having given his notice on 18 th May 2004. The Sixth Defendant was an area sales manager of the Claimants until 17 th June 2004. A Mr Skovmand was originally pleaded as a Defendant to the action together with his corporate vehicle, Intelligent Insect Control SA. He was the head of product development for the Claimants on a consultancy basis and from 2002 onwards he provided those services through his corporate vehicle. Although Mr Skovmand and his company were removed from the action before it was served (he and his company are being sued in France where they are domiciled and he is also a party to proceedings in Denmark), he is said to have developed the Defendants' product. Thus, there is evidence about what his involvement was.


The individual Defendants set up a company in Denmark under the name Intection A/S, which I shall call Danish Intection. It was incorporated on 3 August 2004. There is a dispute as to the involvement of Mr Skovmand in the setting up of this company. The Claimants say that there is evidence to suggest that Danish Intection was in a position to commence testing an insecticidal mosquito net by late 2004. This is denied by the Defendants but I am not in a position to determine the truth or otherwise of this allegation on this application.


The Claimants also allege that the Fifth Defendant made electronic copies of a large number (it is said about 56,000) of the Claimants' documents and data files in the months before he gave his notice. Again there is a dispute as to the fact in that the Defendants say that these files were merely a back up for his laptop whereas the Claimants say that they were copied from the Claimants' file server. In February 2005 the Claimants issued proceedings in Denmark for infringement of copyright in such documents and sought and obtained search and seizure orders. As a result of those orders material copied from the Claimants was recovered from both the Fifth Defendant and Danish Intection.


In June 2005 the Claimants applied for interim injunctive relief in Denmark to restrain Danish Intection from misusing the Claimants' trade secrets. Before that application was heard, the business of Danish Intection was apparently transferred to Intection Limited, the Third Defendant in these proceedings. The injunction was granted by default. In November 2005 the Netprotect product was launched by the Third Defendant. In November 2005 the Third Defendant was joined to the Danish proceedings when final injunctive relief was sought. By spring 2006, the business of Intection Limited had been transferred to the First Defendant in these proceedings which is currently trading as Intection in the sale of the Netprotect product. The present proceedings were commenced in December 2006. There was also a claim in Denmark against the Fifth Defendant for breach of contract and judgment on that claim was given in February 2007. I am told that only one allegation in the claim succeeded. Criminal proceedings were also brought in Denmark against the Fifth and Sixth Defendants and Mr Skovmand. These were discontinued at the instigation of the police but the prosecutor has agreed to re-open the investigation against the Fifth Defendant only.


The Claimants have also brought proceedings in France where Mr Skovmand is based and in India, where Netprotect is manufactured. These proceedings were commenced with search orders and the manufacture in India has been shut down.


The Claim Form in the present proceedings was issued on 19 th December 2006, the Particulars of Claim were amended before service on 8 th January 2007 and an application, without notice, for early specific disclosure was made before Mr Justice Kitchin on 11 th January 2007. Mr Justice Kitchin granted an order for specific disclosure against the Defendants but refused an order that the Claimants be at liberty to disclose confidential information obtained as a result of the order to the Claimants' independent expert. The proceedings, together with the order of Mr Justice Kitchin, were served on the Defendants at the beginning of February 2007. Although initially the Defendants' solicitors said that they anticipated that they would challenge the UK Court's jurisdiction, the Defendants decided to submit to jurisdiction in the hope that it would help to reach a speedy conclusion to the whole dispute.


On the application before Mr Justice Kitchin, the Claimants relied on a skeleton argument. There are several passages from this skeleton which the Defendants rely on in this application:

“(The Claimants') aim in seeking early disclosure is not only to clarify the issues in the case but also, if the information provide(d) makes clear that (the Claimants') concerns as to misuse of confidential information are well founded, to bring an application either for interim injunctive relief or for an expedited trial

“The information requested will allow the manufacturing process used in NetProtect to be compared with that disclosed in the Confidential Information.

“The disclosure and information sought will allow even greater particularisation of (the Claimants') case allowing the confidential information relied upon to be precisely defined and the acts complained of (and the reasons why they are alleged to be objectionable) to be set out clearly and succinctly to the benefit of all parties and the Court. This will significantly reduce the length, complexity and cost of the present litigation.”


At the hearing on the 11 th January the Claimants had sought an order allowing them to disclose the documents, to be disclosed by the Defendants, to a named independent expert instructed on behalf of the Claimants. The Judge was not prepared to make that part of the order without the Defendants having an opportunity to be heard on the application. An application seeking further information from the Defendants (as opposed to just the disclosure of documents by the Defendants) was issued on 12 th January and was served with the order and proceedings.


The Claimants' solicitors wrote to the Defendants saying:

“It is necessary for us to provide these documents to our expert in order to understand the disclosure you have provided to us fully and to express an opinion on whether this disclosure produces...

To continue reading

Request your trial
34 cases
3 firm's commentaries
  • What Constitutes Contributory Infringement of a Patent in the United Kingdom?
    • United Kingdom
    • Mondaq United Kingdom
    • 31 December 2010
    ...intention be? When must the intention be formed? It was thought clear that, as per Lewison J in Cranway v Playtech [2009] EWHC 1588 (Pat); [2010] FSR 2, the relevant intention must be that of the person However, the court rejected the view, also expressed in Cranway, that the required inten......
  • Cleary Gottlieb Discusses Non-Disclosure Agreements — Are They Effective?
    • United Kingdom
    • LexBlog United Kingdom
    • 2 May 2023
    ...[11] Toulson & Phipps On Confidentiality (4th ed., 2020), p.135 [12] Vestergaard Frandsen A/S v Bestnet [2009] EWHC 1456 (Ch) [13] Cream Holdings Ltd v Bannerjee [2004] UKHL 44 [14] ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329 [15] Ibid [16] Mionis v Democratic Press SA & Ors [2017]......
  • Court Of Appeal Provides Guidance On Damages For Derived Products In Trade Secrets Cases
    • United Kingdom
    • Mondaq United Kingdom
    • 13 June 2013
    ...nets ("LLINs"). Mr Justice Arnold heard the trial of the liability phase of the action and in his judgment dated 3 April 2009 ([2009] EWHC 657 (Ch)) he found that Bestnet Europe Ltd ("Bestnet") had misused Vestergaard Frandsen ("VF's") confidential information in the development of its "Net......
3 books & journal articles
  • Trade Secrets' Under New Zealand Law
    • New Zealand
    • Canterbury Law Review No. 22-2016, January 2016
    • 1 January 2016
    ...India Formula One Team Limited v 1 Malaysia Racing Team Sdn Bhd [2012] RPC 29 and Vestergaard Frandsen AS Anor v Bestnet Europe Ltd [2009] EWHC 657. In New Zealand, see Harlow v Griffins Foods HC Auckland CP 383/SD99, 15 November 2002. 242 Canterbury Law Review [Vol 22, 2016] The origin of ......
  • Table of Cases
    • Canada
    • Irwin Books Archive The Law of Equitable Remedies. Second Edition
    • 18 June 2013
    ...258, [1980] 1 All E.R. 839 (C.A.) ...................... 365 Vestergaard Frandsen A/S v. Bestnet Europe Ltd. [2009] All E.R. (D) 57, [2009] EWHC 1456 (Ch.) .................................79, 451 Victoria Oil & Gas Plc. v. Alhambra Resource Ltd., 2009 ABCA 64................. 366 Victoria ......
  • Table of Cases
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2012: Employment Law and the New Workplace in the Social Media Age
    • 18 June 2013
    ....................................................................................340 Vestergaard Frandsen A/S v Bestnet Europe Ltd, [2009] EWHC 1456 (Ch) ..................................................................................... 327 Vizetelly v Mudie’s Select Library Ltd, [1900] ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT