England and Wales High Court (Patents Court) Decisions

Hearing date: 21, 22 July, 1998

This is the official judgment of the court and I direct that no further note or transcript be made

DATED: 23 July 1998

Mr. Justice Laddie:

1. This is an application brought at an interlocutory stage in an action for breach of confidence. The first plaintiff, CMI-Centers For Medical Innovation GmbH, ("CMI") is a limited liability company established under German law in 1997. The second plaintiff, Dr. Christoph von Keudell, is a medically qualified doctor. He is a director and shareholder of CMI. CMI and Dr. von Keudell are interested in the production of plant-based medicines. This action is concerned with alleged confidential information relating to one such medicine.

2. There has been a growing awareness in industrialised countries that some natural plants may be a source of efficacious medicines. The use of plants for medicinal purposes has been known and practised in many developing countries for a long time. In India there grow many plants which have medicinal uses. This case is particularly concerned with medicine derived from a plant called phyllanthus amarus. This grows in parts of India and other tropical and sub-tropical regions. It is believed to possess certain therapeutic properties in relation to some liver diseases. In fact in about 1983 Dr. Baruch Blumberg, who was awarded a Nobel Prize for his discovery of the Hepatitis B virus and the development of a Hepatitis B vaccine, began research on this plant. In 1985 and 1988 Dr. Blumberg applied for patents relating to the use of phyllanthus amarus in the treatment of Hepatitis. According to Dr. von Keudell, on 1 October 1988 a clinical study describing the clinical efficacy of a preparation based on phyllanthus amarus in the treatment of chronic carriers of the Hepatitis B virus was published in "The Lancet", a well known medical journal. The authors were Dr. Blumberg and Dr. S P Thyagarajan of the University of Madras.

3. Phyllanthus amarus is not the only plant used as a source of medicinal preparations which is mentioned in this case. Another is boswellia serata. It is the source of a medicinal preparation called H 15 which is a product of Ayurmedica GmbH which Dr. von Keudell refers to as his other company. Another plant-based product with which Dr. von Keudell is concerned and which is mentioned in the evidence is called unguentum lymphaticum.

4. According to Dr. von Keudell, he became interested in the same field of work as Dr. Blumberg and Dr. S P Thyagarajan at some time in the 1980's. He says he put a lot of work into doing basic research. To continue the necessary research and to forward the commercial exploitation of phyllanthus amarus, he created CMI and set up a working relationship with an Indian company called Southern Petrochemicals Industrial Corporation ("SPIC"). That involved the creation of a confidential relationship between CMI and SPIC. It is not asserted in these proceedings that that the obligations of confidence arising out of that relationship have been breached.

5. In the spring of 1996, Dr. von Keudell made contact with the defendants. The first plaintiff, Phytopharm Plc, is a company quoted on the London Stock Exchange. The second defendant, Phytotech Limited, is its wholly owned subsidiary. They also are engaged in the business of developing and marketing medicines derived from plants. Two senior employees of the defendants are Dr. Ian Duncan Rubin and Dr. Richard Peter Dixey. Dr. Rubin is the Chief Operating Officer and Medical Director of both defendants. He is medically qualified and prior to his involvement with the defendants he was a senior employee in turn of two well known pharmaceutical companies. Dr. Dixey is the Chief Executive and a director of both companies. He also is scientifically qualified.

6. This dispute arises out of an allegation that the defendants have misused confidential information supplied to them under terms of a confidentiality agreement by Dr. von Keudell before CMI was created. Apparently Dr. von Keudell thought that it would be of benefit to him, and subsequently to CMI when it was formed, if the defendants could be involved in the development of anti-Hepatitis medicine based on phyllanthus amarus. It is not in dispute that there were various meetings between him and Dr. Rubin and Dr. Dixey. It is also not in dispute that on 23 May, 1996 a confidentiality agreement was entered into between Dr. von Keudell and Phytopharm. It was signed by Dr. Rubin for and on behalf of Phytopharm. It was superseded later by another confidentiality agreement. The differences between the agreements were not suggested as being material to the issues I have to decide. I will need to consider some of the terms of the confidentiality agreements later in this judgment. The benefits and obligations arising under the agreements were subsequently assigned to CMI.

7. There is no dispute that Dr. von Keudell and the defendants did have discussions concerning phyllanthus amarus in 1996 and that those discussions came to an end by November of the same year. Also it is not in dispute that the defendants have engaged in research and development work in relation to phyllanthus amarus since then. Indeed it is not in dispute that the defendants had developed an interest in the exploitation of phyllanthus amarus and had already made contact with Dr. Thyagarajan on the subject before they met the plaintiffs.

8. Before analysing the allegations made on this application in detail, it is relevant to have in mind the timetable of proceedings.

9. Dr. von Keudell learned that the defendants were involved, or continued to be involved, without his participation, in the phyllanthus amarus field in about January 1997. With the passage of time he says that his knowledge or suspicions of what the defendants were doing grew. On 2 April 1998 the plaintiffs applied ex parte before Carnwath J. for injunctive and Anton Piller relief. They said that there was reason to believe that the defendants were misusing their confidential information. In support of that application, the plaintiffs relied on the first affidavit of Dr. von Keudell dated 2 April, 1998. It is a crucial document. It contains the strongest possible allegations of dishonesty against the defendants and Drs. Rubin and Dixey personally. Although the contents of that affidavit will be considered in greater detail below, the core allegation was that Dr. von Keudell had given the defendants a number of confidential documents relating to the exploitation of phyllanthus amarus. He had asked for their return when it was apparent that cooperation between the parties was not going to take place. They were not returned. It was said that the defendants had used the confidential documents they had retained to advance their own, independent, research into phyllanthus amarus.

10. Apparently Carnwath J. indicated that he was not prepared to grant the search part of the order sought but that he was prepared, on the basis of the information supplied to him, to grant ex parte injunctive relief. The plaintiffs went away and then returned to court with a minute seeking injunctive relief only. On the resumed hearing an order in the terms sought was granted. Consistent with the evidence filed by Dr. von Keudell, the injunctions restrained the defendants over the return date of the motion from making use of

"the contents of the file of papers relating to phyllanthus amarus received by the Defendants and/or by Dr. Ian Rubin from the Plaintiffs following the Confidential Disclosure Agreement between the Second Plaintiff and the Defendants dated 23 May 1996"

11. A list of particular documents was included in the order. The plaintiffs also obtained an injunction to restrain the defendants from making use of "any other information" relating to phyllanthus amarus provided to the defendants by Dr. von Keudell following the confidentiality agreement. Particular meetings at which unspecified information was allegedly handed over were set out in the order. The defendants were also ordered to hand over the original and copies of the file of papers relating to phyllanthus amarus "received by the Defendants and/or by Dr. Ian Rubin from the second defendant in May 1996 following the agreement dated 23 May 1996". The ex parte injunction was effectively continued by default by Rimer J. on 24 April over the hearing of the inter partes motion.

12. Although the injunctions referred to, and in large part were dependent on, the confidential documents referred to in the two orders, and those orders were based on the basic assertion that the plaintiffs had given the identified documents to the defendants who had cynically and dishonestly refused to hand them back and had used the same, the plaintiffs then refused to let the defendants see copies of the documents referred to in the orders.

13. The defendants' position was that the application was entirely misconceived. They said they had done nothing wrong. They had retained none of plaintiffs' documents. They had not misused anything. The plaintiffs had nothing of value in relation to the development of medicines from phyllanthus amarus. However the defendants were not in a position to answer the plaintiffs' case in full because they could not see what it was that they were accused of retaining. For example they could not show that the information relied on was in the public domain or trivial and valueless because they said they did not know what the information was. Also, in the absence of the documents, they could not determine the scope of the ex parte injunction granted against them. They put in evidence containing strong denials of any impropriety. They pointed out that the effect of the injunction granted was to force them to close down their phyllanthus amarus activities. They did not know the width of the injunction granted and as respectable companies (as they said they were) they could not take a risk of being in contempt of court. They said that the adverse effect of such an ex parte order, based as it was on strong allegations that the defendants had behaved dishonestly, was seriously damaging to a company quoted on the stock exchange.

14. On 30 June an application by the defendants came before me. They wanted to have access to the documents which were relied on by the plaintiffs both for their case and the scope of the injunction granted. The plaintiffs resisted. They were prepared to let the defendants' solicitors and counsel and experts (if any) see the documents in unredacted form. With immense reluctance they were prepared to let Dr. Rubin, but no one else in the defendants, see redacted versions of them. I say that Dr. Rubin was to see redacted copies. But redaction is too mild a word. Page after page of the relevant documents were rendered utterly meaningless. On some pages virtually every word was blanked out.

15. The plaintiffs' resistance to the defendants' application was advanced on two bases. First the plaintiffs noted that the defendants' case was that they had never received the documents on which the plaintiffs relied. The plaintiffs said that if that was so it would damage the plaintiffs to let the defendants see them now. Alternatively, if the defendants were lying, they may have disposed of the documents or they may have forgotten some of the details in them and letting them have another view would enable them to fill in the gaps of their knowledge.

16. These arguments were bizarre. The first is dependent on the defendants having done nothing wrong which is hardly a basis for refusing them access to documents at the heart of the action. The second is based on the unlikely proposition that the defendants deliberately withheld valuable documents when the plaintiffs asked for their return and used them but have lost them since. Furthermore neither of these arguments addressed the point that the injunctions obtained by the plaintiffs referred to and were defined by the contents of those documents yet the plaintiffs were not allowing the defendants to see what the documents were. The plaintiffs argued against disclosure. I made it clear that I thought their position was untenable. After a short break for reflection, they relented.

17. In much the same way, the plaintiffs had refused and continued to refuse to specify what additional information, if any, was alleged to have been passed to the defendants in the meetings and conversations which were identified in the ex parte order they had obtained. Once again, after indications that I found this position to be untenable, the plaintiffs relented.

18. A number of other matters were canvassed during the course of that hearing before me. I will return to them hereafter. One I should mention now. Even partly blinded by the refusal to allow them a view of the unredacted documents, the defendants and their legal team were able to put together a considerable body of arguments which suggested that the story put forward by Dr. von Keudell in his first affidavit simply could not be accurate. Those arguments were compelling. In fact Dr. von Keudell admitted that one crucial piece of evidence, namely when he allegedly handed over the core documents relied on in this application, could not have happened when he had said it did. There were also other matters which were raised by Mr. Fitzgerald for the defendants which appeared to undermine the plaintiffs' entitlement either to an injunction at all or an injunction of the scope they had obtained ex parte.

19. Those matters were drawn to Mr. Bean's attention. He appeared then and appears now on behalf of the plaintiffs. Although I did not have an application before me to discharge the ex parte injunctions and did not have the totality of the evidence which had by then been filed, the matters raised by the defendants were of sufficient seriousness that I invited Mr. Bean to take his clients' instructions as to whether, in the circumstances, they wished to maintain their entitlement to the ex parte injunction. After taking those instructions, they indicated that they wanted to maintain the injunction. The result is that the defendants continued to be restrained by the injunction originally granted by Carnwath J in April of this year.

20. After the defendants were allowed to see the documents relied on by the plaintiffs, they served further evidence. The details, so far as necessary for this application, I will refer to later. But in essence they said (i) they had never seen the vast majority of the documents, (ii) as they suspected, some of the documents clearly referred to matters in the public domain, (iii) the documents confirmed that the plaintiffs had nothing of interest to show the defendants and (iv) there were telling signs that most of the documents could not have been shown to the defendants.

21. Dr. von Keudell responded. He disputed virtually everything in the defendants evidence. If anything, his allegations of perfidiousness levelled at Dr. Dixey and Dr. Rubin became more strident.

22. The application before me now is to continue interlocutory relief to the trial. In fact, arising out of the matters canvassed in the hearing before me at the end of June, the plaintiffs have refined the relief they seek. It is now in the following terms:

23. The plaintiffs also seek interlocutory injunctions to restrain the defendants from carrying on certain defined types of activity using, or passing to anyone else, any of the information referred to in paragraphs (1)(a) and (b). These additional injunctions do not appear to cover anything which would not be covered by (a) and (b). All the injunctions sought are to be subject to an express exclusion which I will consider later.

24. To put none too fine a point on it, the plaintiffs accuse the defendants, particularly Dr. Dixey and Dr. Rubin, of lying under oath and of engaging in an essentially fraudulent manner towards a potential business partner. On the other hand the defendants say that the plaintiffs, particularly Dr. von Keudell, is, at the very least, grossly mistaken as to what happened and is incompetent. These are not issues which can be resolved on this application but the sooner they are cleared up the better. Furthermore the sooner this litigation is resolved, the sooner it will be clear whether there is any restriction on the right of the defendants to carry on the research they have commenced into the use of phyllanthus amarus for medicinal purposes. As Dr. von Keudell states a number of times in his evidence, the plaintiffs want a speedy trial. In fact an order for a speedy trial was made by Lightman J at another interlocutory hearing. The trial is due to come on not before 5 October of this year.

27. As to the first of these four matters, the fact that the proceedings are only at an interlocutory stage does not justify less precision. The defendant must be told what it is he is accused of misusing. He must be told precisely what it is that he will be prevented from doing or using by the injunction sought. This does not mean that the plaintiff is locked into his case at the interlocutory stage. He may find that additional information has been taken or misused by the defendant in which case he will be able to amend his claim to include additional material. He may find that some of the information which he had thought was confidential is not or has not been used by the defendant. In that case he can restrict his claim. But this does not affect his obligation to set out precisely what, at the interlocutory stage, is the confidential information he wishes to rely on.

28. On this application a large quantity of evidence has been filed. It extends to hundreds of pages of affidavit evidence, some of it of very great detail, and many hundreds of pages of exhibits. However the nature of the plaintiffs' case and the defendants' defence to it can most easily be understood by referring to Dr. von Keudell's first affidavit. In it he makes the following assertions:

(1) The plaintiffs were involved in working on three plant-derived medicines, (i) one based on or called unguentum lymphaticum, (ii) one based on boswellia serata [called H15] and (iii) one based on phyllanthus amarus.

(2) For 7 years Dr. von Keudell spent 50% of his time, working very long hours, carrying out investigations and research into making medicinal preparations from phyllanthus amarus under industrial conditions for global markets.

(3) He entered into an agreement with an Indian Company, Southern Petroleum Industrial Corporation ("SPIC") of Madras for the purpose of carrying on joint development work.

(4) On 11 May 1996, Dr. von Keudell was introduced to Mr. Klaus Hebben who was connected with Phytopharm.

(5) The first meeting with Phytopharm, represented by Dr. Dixey, occurred in the Hotel Raphael in Munich on 19 May 1996. There was a general discussion. Dr. von Keudell mentioned his contact with SPIC. However Dr. von Keudell did not give the defendants any of his detailed data at this stage

(7) The confidentiality agreement was entered into on 23 May 1996. It contained mutual obligations of confidence in relation to materials handed by one party to the other either before or after 23 May in relation to their proposed joint endeavours. However the agreement expressly excluded from confidentiality certain types of information. These included (i) information which is in or becomes part of the public domain and (ii) information which was held by the disclosee before its disclosure to it by the other party. It was also agreed that confidentiality would not apply to any information "which is disclosed orally unless it is identified as confidential at the time of the disclosure and confirmed as such in writing by the disclosing party within 30 days of disclosure".

(8) It was "on the strength" of this agreement and prior to meeting the US FDA, that the plaintiffs gave the defendants a file of papers. A copy of the file was exhibited to the affidavit.

(9) That file contained a number of documents. All were and are said to be highly confidential. The most important was one described as a "14 page document plus attachments and enclosures". It is a drug profile entitled "Phyllanthus Amarus as a plant with potential therapeutic use against viral hepatitis". The file was also said to contain details of a clinical trial. The exhibit shows that that clinical trial was identified as having been carried out by a Dr. Das in India.

(10) Before visiting the FDA on 31 May 1996, there was a preliminary meeting between Dr. Rubin, Dr. von Keudell and Dr. von Keudell's lawyer in relation what would be discussed at the FDA meeting. At that meeting Dr. von Keudell referred to an Indian company, Rallis, with whom he was in contact.

(11) The next meeting was at Elmau in Germany on 29 July, 1996. Dr. von Keudell said that the meeting involved further detailed discussion on phyllanthus amarus and further confidential information "in the form of explanations of the documentary material" was disclosed to Phytopharm. It is not in dispute that this was intended to mean that there was oral explanation or amplification of the documents in the file referred to in (8) and (9) above. It is not suggested that any other documents were supplied by Dr. von Keudell to the defendants.

(12) There were also meetings with Dr. Rubin on 1 and 3 July 1996. It was not suggested that any further documents were supplied to Dr. Rubin at these meeting either although Dr. von Keudell says that there were discussions about phyllanthus amarus on those days. No details of what was allegedly discussed are provided.

(13) Although a number of telephone calls were made to the defendants in August and September 1996, nothing further was heard from them.

(14) Discussions continued in respect of H15, but Dr. von Keudell assumed that plaintiffs had lost interest in phyllanthus amarus. On 13 November, he wrote to Dr. Rubin asking for the return of all his documents. He says that the critical file of phyllanthus amarus documents were not returned.

(15) In January 1997, Dr. von Keudell learned from SPIC that Dr. Dixey and Dr. Rubin were due to visit them on 13 January 1997. That visit went ahead. Drs. Rubin and Dixey discussed phyllanthus amarus with SPIC but did not contact Dr. von Keudell again.

(16) On 15 July 1997 Dr. von Keudell wrote again to Dr. Rubin (copied to Dr. Dixey) asking for return of the phyllanthus amarus documents. On 12 August Dr. Rubin faxed to say that they had been returned already. This was confirmed by Dr. Rubin's secretary on 22 August 1997. The defendants asserted that they had been returned in December.

(17) Dr. von Keudell says that the documents had not been returned in December or at any other time. However he was very busy so he did not press the matter with the defendants.

(18) On 21 December 1997, Dr. von Keudell received a telephone call from a Dr. Mithyantha of Rallis saying that Dr. Rubin and Dr. Dixey had already visited him earlier that year and had held discussions with him on conducting toxicological studies on plant-based medicines. Dr. von Keudell felt sure that they had contacted Rallis as a result of the information he had given them under the confidentiality agreement. It should be noted that this was in December 1997, some four months before the application for Anton Piller relief.

(19) On 23 December 1997 Dr. von Keudell flew to India. He met SPIC and learned that Dr. Rubin and Dr. Dixey had contacted Dr. Thyagarajan. He says he believed that they contacted Dr. Thyagarajan as a result of the information Dr. von Keudell had given them. He said that this made him suspicious that the defendants had breached confidence.

(20) In view of the fact that the plaintiffs were seeking Anton Piller relief, Dr. von Keudell sets out further information which, he claims, reinforced his suspicions. In substance this amounted to further information that the defendants were in contact with Rallis and Dr. Thyagarajan.

(21) In paragraph 54 he says: "I believe that [the defendants and Drs. Rubin and Dixey personally] are undoubtedly seeking to avoid my finding out details of their activities in order to try to avoid leaving evidence that they are using the confidential information I provided."

(22) In paragraph 56 he said: "For the foregoing reasons it is my belief that Phytopharm must be making use of the confidential information and secrets disclosed to them by me under the terms of the Confidentiality Agreement. I do not believe that they would have developed any interest in let alone be able to proceed with any development of phyllanthus amarus as a drug in such a short time without using my confidential information, and breaching the Confidential Agreement. I can only believe that this drug and its method of production will be to the confidential criteria developed by myself and SPIC or at least make extensive use of the disclosed material, and without that, there would have been no real purpose for Phytopharm to enter into such a collaboration with Rallis."

(23) Paragraph 59 is important. It sets out documents which, to use Dr. von Keudell's words, "belong to the Plaintiffs". They are set out under four headings. The first is described in the following terms: "The contents of the file of papers relating to phyllanthus amarus received by the Defendant and/or by Dr. Ian Rubin from the Second Plaintiff in May 1996 following the agreement dated 23 May ...". The second category clearly is a reference to notes taken by the defendants of meetings and conversations with the plaintiffs. It is not a suggestion that the plaintiffs handed over any documents at any time other than at the 23 May meeting.

(24) The third category is defined as follows: "All notes and records detailing work carried out for and on behalf of the Defendants on and consideration given by or on behalf of the Defendants to phyllanthus amarus (i) at any time prior to 11 May 1996 (ii) between 11 May 1996 and 23 May 1996 (iii) between and including 23 May 1996 to date of this order." It will be noted that the plaintiff was asserting proprietary rights in respect of all notes and records detailing work carried out before the plaintiffs and defendants ever met and in the period before the signing of the confidentiality agreement when, according to Dr. von Keudell, he had supplied the defendants with no detailed data. How any of this could ever have been even argued to be the property of the plaintiffs was not explained to me. It appears not to have been explained to Carnwath J. A proprietary claim was simply put before the judge and, no doubt without the impossibility of the claim being justified being drawn to his attention, he was asked to make an order covering that material.

(25) The fourth category of documents in which Dr. von Keudell said he had proprietary rights is defined as: "All notes and records of dealings and communications between the Defendants and the following in respect of phyllanthus amarus since 23 May 1996 - SPIC, Rallis India Ltd., Dr. Thyagarajan." This is quite unspecific. It relates to any contact whether or not it has anything to do with the plaintiffs.

(26) Dr. von Keudell said that the plaintiffs needed Anton Piller relief because the defendants were likely to destroy or remove the relevant documents from the jurisdiction.

(27) There then followed evidence relating to the balance of convenience and evidence going to the issue of whether the plaintiffs will be able to afford to pay compensation to the defendants under the cross undertaking in damages.

29. One of the significant features of this case is that the plaintiffs have, or say they have, no records of what documents were taken to Dr. Rubin or receipts for what was handed over. Although they received back a bundle of documents returned at the end of 1996, there is no log showing what those documents were. Further, although Dr. von Keudell says that he realised that the defendants had failed to return the vitally important phyllanthus amarus documents even though requested to do so twice, there is no internal note or other contemporaneous document supporting that suggestion.

30. In any event that was the case the defendants had to meet. Although, as I have mentioned, they were hindered by the refusal of the plaintiffs to let them see the documents which, according to the plaintiffs, they already had and which had been used to define the ex parte order already granted, they responded by means of a group of affidavits from Dr. Dixey, Dr. Rubin, Dr. Walker, Dr. Chawla, Dr. Hardy, Ms. Alison Marsden and Ms Jayne Allan.

31. It is not necessary to go through those affidavits in detail. The essence of the defendants' case at this time may be summarised as follows:

(1) They became interested in phyllanthus amarus as a result of being approached by Dr. Walker well before they were approached by Dr. von Keudell.

(2) As a result of that they contacted Dr. Thyagarajan, again before they were approached by Dr. von Keudell.

(3) They met Dr. von Keudell but found that at least as far as phyllanthus amarus was concerned, he had little information and was basically ill prepared. Such information as he did have seemed to be basic information in the public domain.

(4) They never received the file of documents as claimed by Dr. von Keudell.

(5) They did hand back what documentation they had received, most of which was to do with H15 and unguentum lymphaticum, in December 1996

(6) Their continued developments in the area of phyllanthus amarus is all based on the collaboration between them and Dr. Thyagarajan, one of, if not the, world expert on the medicinal properties of that plant.

(7) Their contact with Rallis had nothing to do with anything they learned from Dr. von Keudell. It arose quite independently. A detailed explanation of how it arose is given.

(8) They have never misused any of Dr. von Keudell's documents or confidential information.

32. Dr. Dixey's affidavit explains in some detail why the ex-parte injunction will cause very great harm to the defendants and him personally. He says, rightly, that the plaintiffs' assertions amount to an allegation deliberate dishonesty. It means that the picture painted to the outside world is that the High Court has concluded that there are serious grounds for believing that the defendants and he are not to be trusted with confidential information. That could hardly be more damaging. The defendants are involved in research and development relating to new drugs. To that end they have nearly 300 confidentiality agreements with a variety of third parties. Further the effect of the injunction has been to leave the defendants with no safe alternative but to cease all work in connection with the phyllanthus amarus project and to notify their partners and collaborators accordingly. That is what they have done. Research into what may well be a very useful tool against a chronic and dangerous disease has been held back. The impact on Dr. Thyagarajan is obvious. He feels that his ability to carry out research is also compromised. Dr. Rubin makes the same point in relation to the effect of the injunction on him personally.

33. I should mention that the evidence of Dr. Walker, Dr. Chawla, Dr. Hardy, who are not employed by the defendants, Ms. Alison Marsden and Ms Jayne Allan, who are, and a letter from Dr. Thyagarajan are used to show the independence of the defendants' activities from any knowledge derived from Dr. von Keudell. It was not suggested by Mr. Bean that any of this evidence could be challenged or was in any sense implausible or inconsistent with such contemporaneous documents as exist.

34. The defendants say that, contrary to Dr. von Keudell's assertions, the absence of any significant information supplied by Dr. von Keudell relating to phyllanthus amarus in advance of the meeting with the FDA on 31 May meant that Dr. von Keudell and the defendants were ill prepared to have a meaningful discussion with the FDA. This was the subject of some concern which the defendants expressed to Dr. von Keudell. Furthermore this concern was also expressed by Mr. Yingling, Dr. von Keudell's lawyer, at a pre-FDA meeting held on 31 May 1996 just before the parties went in to see the FDA. That this concern was expressed to Dr. von Keudell is confirmed by the fourth page of Dr. Rubin's note of that that pre-meeting. Dr. Rubin says that if Dr. von Keudell had had available the data and information which he asserts he had handed to the defendants, it is inconceivable that he would not have sent or produced that data and information to the FDA for the discussion relating to phyllanthus amarus yet no such disclosure was made. Dr. Rubin points out that although Dr. von Keudell exhibited his, Dr. Rubin's, file note of the pre-meeting, he omitted page four. Dr. von Keudell accepts that he left that page out, but says that this was a clerical error. He also admits that he did not make the data on phyllanthus amarus available to the FDA, but that was because he thought that the purpose of the meeting was for preliminary enquiries only.

35. At the core of the plaintiffs' allegations at this stage is the assertion that they did not hand over any relevant data to the defendants until they were protected by the May 23 confidentiality agreement and that then they felt free to disclose material to the plaintiffs. The confidentiality agreement had to be signed at that time to enable the parties to discuss applications for a drug licence with the FDA at the end of May 1996.

36. Even though they were hindered by not being able to see the relevant documents, the defendants and their lawyers were able to show quite conclusively that the story advanced by Dr. von Keudell was, in material respects, inaccurate. In particular they showed, by reference to unimpeached contemporaneous documents that there could not have been a handover of a file of documents as alleged by Dr. von Keudell after the signing of the 23 May agreement and before the meeting with the FDA. The only time documents could have been handed over was at a meeting on 22 May, before any confidentiality agreement existed. In fact the defendants say that even then no relevant documents were handed over. It was because no relevant data was handed over that the parties were not able to make a proper presentation to the FDA a few days later, as noted above.

37. Dr. von Keudell in reply says that his memory has now been jogged by this evidence and that he now accepts that the relevant file was handed over on 22 May, before the confidentiality agreement was entered into. He says that he would not normally hand over highly confidential documents in advance of a written confidentiality agreement but that this instance was an exception because the defendants were pressing him to disclose the material in preparation for the FDA meeting (a meeting, it should be recalled, at which, according to him, the documents were not to be used). Dr. von Keudell offers no explanation for why he failed to remember this exceptional and unusual order of events in his first affidavit.

38. Furthermore, even if one ignores the change in the alleged date of handover, the defendants say that the plaintiffs' case does not hold together. It will be recalled that Dr. von Keudell said that one of the documents handed over was a description of Dr. Das' clinical trials. The document allegedly handed over not only disclosed the results of the trials but also identified Dr. Das as the person carrying them out. These are trials which are said to show a degree of efficacy which had not been achieved by anyone else using phyllanthus amarus. Dr. Rubin's evidence is that it can be proved that this assertion is false. He points to a letter sent to him by Dr. von Keudell on 26 May, that is to say after the file containing details of Dr. Das and his trials had allegedly been passed to the defendants. In it Dr. von Keudell says as follows:

"I have just received by courier a summary of a recent prelimary clinical trial of the effects of phyllantus amarus of cronical Hepatitis B sponsored by SPIC at a renowned gastroenterological center where I met the head (Prof. Das) in winter. He was trained at the Royal Tree Hospital in London. His data seems to be reliable."

39. There is no dispute between the parties that this is a reference to the same Das clinical trials referred to in the file allegedly handed over on 22 May. However the letter of 26 May shows that on that date Dr. von Keudell had only just received the results. The whole tone of the letter is that Dr. von Keudell was bringing news of the trial and Dr. Das to the defendants for the first time. If this is so, it is impossible for them to have been provided in the file allegedly handed over on 22 May. Mr. Bean accepted that if that was what the letter of 26 May was doing, it was impossible to reconcile it with Dr. von Keudell's evidence relating to the handing over of the file.

40. This evidence obviously caused some difficulty for the plaintiffs. Dr. von Keudell accepts that the 26 May letter refers to the Das trials which were allegedly contained in the file handed over on 22 May. The only explanation he offers for this apparent inconsistency is that the "the wording of the letter could have been better chosen, but at the time I was travelling and also very busy". Incidentally Dr. von Keudell asserts, and no one denies, that he is fluent in English. However Dr. von Keudell has not explained what he intended the letter to mean if not what it says.

41. A number of other detailed criticisms of Dr. von Keudell's evidence are contained in the defendants' evidence. For example, from the very outset Dr. von Keudell said that the critical document handed over in the file was 14 pages long plus annexes. As the defendants point out, even now the document annexed to Dr. von Keudell's more recent evidence as this document is not 14 pages long. It is 10 pages long and its date of production is the subject of considerable doubt. Some documents alleged to be dated 1994 appear to contain data of 1996 origin.

42. The difficulty for the defendants is that they are being asked to demonstrate a negative, namely that they did not receive the documents which the plaintiffs allege they were handed. Of course the onus is on the plaintiffs but they have no records to support their claim, merely assertions by Dr. von Keudell. The defendants have gone to great lengths to show that his evidence is wrong. They have pointed to a number of surrounding events and contents of documents which are consistent with their story and difficult to reconcile with that advanced by Dr. von Keudell. It is not necessary to go through all of these in this judgment. The lengths to which they have gone can be illustrated by reference to one example. About half of the pages contained within the file allegedly passed to the defendants in May 1996 concerning phyllanthus amarus are in the German language. Dr. Dixey gives evidence that there are no fluent German speakers in the defendants. Technical documents in that language have to be translated. For this purpose the defendants use the services of Berlitz (UK) Limited. Dr. Dixey exhibits a bundle of documents which indicate that the only German language documents which Berlitz were asked to and did translate were ones concerned with H 15 - documents which the defendants do not deny having received and they are not asserted to have failed to return. They have nothing to do with phyllanthus amarus. Furthermore Berlitz retains electronic records of all documents which they had translated for the defendants. All related to H15. If, as Dr. von Keudell asserts, the defendants were engaged in a scheme to deprive him of three and a half man years of valuable research into phyllanthus amarus, and to that end wrongfully retained and used the file of highly confidential documents handed over in May 1996 it is almost inevitable that they would have had the documents translated. They would not have been able to assess and use the valuable contents of those documents without translation. Of course it is possible that at the same time as they were using Berlitz to translate German documents relating to H 15 they used another translator for documents relating to phyllanthus amarus. I suppose it could be said that this course was adopted because at the very outset and before they knew the contents of documents the defendants were intending to double-cross Dr. von Keudell. To that end they used another translator so as to hide their tracks and to enable them in subsequent legal proceedings (which they must have foreseen) to put forward misleading evidence restricted to what Berlitz had done. This would constitute a truly impressive level of cynical dishonesty and pre-planning.

43. Once the defendants had been allowed to see the documents they were alleged to have been given and to have deliberately retained and used, they put in extensive evidence relating to their contents. There are two documents which Dr. Rubin and Dr. Dixey think they have seen or they may have seen something very similar. However save in this limited respect, they categorically deny having received or seen them. But that is not all. In relation to many of the documents they point out that they are either nothing to do with phyllanthus amarus or are trivial. Perhaps as important as any of the criticisms made by the defendants is that these documents contain large quantities of material which is in the public domain. There are numerous references to papers published in technical journals. In many cases, Dr. von Keudell does not deny the defendants' assertions. What is at issue can be illustrated by reference to an example. When the case came on before Carnwath J, it was said on the basis of Dr. von Keudell's first affidavit that the contents of the file handed to the defendants was highly confidential. One of the documents in that file, called Document 1, is split into sections. Section 3 bears the rubric "Pharmacology". It then refers to the biological activity of some of the chemical constituents within the plant. In his third affidavit Dr. Dixey says that the information in this Section is completely in the public domain. In his fourth affidavit, for the first time, Dr. von Keudell accepts that this is all in the public domain. Yet the use of the information in this Section (along with a number of others which clearly contain information in the public domain) was restrained by the ex parte injunction. Furthermore at the time this matter came before me in June, Dr. von Keudell was refusing to allow the defendants to see this part of the document (along with all the others). The redacted version was only to be shown to Dr. Rubin.

44. One other matter should be mentioned. As noted above, in his first affidavit Dr. von Keudell only alleges that confidential documents were handed over at the meeting which he thought took place on 23 May. In his second affidavit, for the first time he alleges that three documents were handed over on 30 June at Elmau and 9 documents were handed over on 1 July at Schloss Hotel Grunewald. As far as the document allegedly handed over on 30 June are concerned, Dr. von Keudell says that they were not handed over earlier because he wanted to have the revised confidentiality agreement in place first. Precisely why that should have been his concern when there was already the 23 May confidentiality agreement in place and when he was prepared to hand over what he alleges is the most important document, i.e. the 14 page profile, before any agreement was signed at all, is not explained. Further if, as he now says, he deliberately held these documents back until the revised agreement was in place, one would have expected them to have been remembered and referred to in his first affidavit, but they were not.

46. The second topic is whether the plaintiffs can show that the information was handed over in circumstances of confidence. This can be split into two sub-topics: (i) was the information handed over and (ii) if it was, was it handed over under an obligation of confidence. There is no adequate explanation for why the list of documents allegedly handed over by Dr. von Keudell has grown so extensively since his first affidavit. Furthermore at least one of the crucial documents, the 14 page report, does no tie up with its description. No adequate explanation of the discrepancy has been proffered. As mentioned above, the report of the Das trial is said to have been handed over on 22 May, yet Dr. von Keudell's 26 May letter suggests that he did not have that report on the 22 May. Furthermore, in Dr. von Keudell's latest evidence he states that he is not sure that that he handed over some of the documents on which he is relying.

47. There also other worrying features of the plaintiffs' case. Dr. von Keudell asked for the documents to be returned to him in late 1996 and again six months later but, according to the plaintiffs, the defendants failed to do so. They only sent back the documents relating to H15 and unguentum lymphaticum. Yet at that time Dr. von Keudell did nothing. He did not even complain although they were, according to him, the most important documents relating to phyllanthus amarus and represented 31/2 man years work by him. Also, as I have noted already, the plaintiffs have no records to indicate that any of these documents were handed over to the defendants. In addition, Dr. von Keudell's original assertion that he would only hand over such valuable documents when protected by a written confidentiality undertaking has been turned on its head in the light of the defendants' evidence that it could not be true.

48. As against this, the defendants say that they have seen some of the information in two or three of the documents but have never seen the others at all and they say that they handed what they did have back to Dr. von Keudell in 1996. If the plaintiffs are right, then from the outset the defendants and particularly Drs. Rubin and Dixey have been deliberately withholding documents, a scheme which they have been involved in for 2 years, and have lied repeatedly on oath. Furthermore it would mean that Dr. Rubin and Dr. Dixey were sly enough to obtain from Dr. von Keudell this valuable information, clever enough to hide traces of the translations they had made and yet were foolish enough to refuse to hand back the documents rather than take the obvious course of photocopying them before returning the originals. They handed back the H15 and unguentum lymphaticum documents, but those relating to phyllanthus amarus must have been conspicuous by their absence, if the plaintiffs are right.

"In criminal cases, the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. As Chief Justice Best and many other great judges have said, it should be in proportion; as the crime is enormous, so the proof ought to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degrees depend upon the subject matter. The civil court, when considering the charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature. But still it does require a degree of probability which is commensurate with the occasion".

50. And Morris LJ said:

52. But these are difficulties which I do not have here at this stage. I have seen not any evidence which demonstrates or strongly suggests that the defendants have engaged in any such dishonest activity. Strongly worded assertions by Dr. von Keudell are not the same as evidence. Moreover, if one pays regard to consistency, in my view the defendants' evidence has remained substantially consistent throughout and that is something which cannot be said of Dr. von Keudell's evidence. Although at the trial it may be that Dr. von Keudell's assertions will be proved correct, at this stage I am not persuaded that the material before me supports it.

53. There is no dispute between the parties that if the documents were handed over, and assuming they were suitable to be treated as confidential, they were handed over under an obligation of confidence. However it is necessary to refer again to that part of the relief sought now which relates to data communicated during the course of oral conversations. I have already dismissed the plaintiffs' entitlement under this head to the extent that the plaintiffs have failed to specify what the information was which was communicated. However the further and better particulars served by the plaintiffs do particularise some information allegedly communicated during some conversations. Those particulars were served after the substantive evidence on this motion had been served. The result is that there is no evidence relating to whether or not the particularised information was communicated at all. However, even if there were, it would not help the plaintiffs. The parties agreed that certain information would not be treated as confidential. In particular, as noted above, the confidentiality agreement provided that confidentiality would not apply to any information "which is disclosed orally unless it is identified as confidential at the time of the disclosure and confirmed as such in writing by the disclosing party within 30 days of disclosure". It has not been suggested in evidence or even on the pleadings that any of the oral disclosures relied on either were identified as confidential at the time or confirmed as such within 30 days. The plaintiffs' case in relation to such oral communications appears to be untenable. I understood Mr. Bean to accept that to be the case.

55. In any event, the problem here is that there is some information as to which there exists a dispute, unresolvable at this stage, as to whether it is confidential. It seems to me that if the plaintiffs make out their case sufficiently on all other issues, then the fact that there is a dispute as to the status of some of the information should not prevent the court from granting relief broad enough to cover the information the confidentiality of which is open to question. However the fact, if it be shown, that the plaintiff has made wholly unjustifiable claims to confidentiality may well tip the court in favour of narrowing the scope of the relief it is prepared to give.

56. The plaintiffs say that in this case they should be granted a broad injunction covering all the documents which they say were handed to the defendants including all those numerous parts which are clearly or arguably in the public domain. They say that any hardship which might be caused by the injunction being in that form will be mitigated by the proviso which they want to include in the order they are seeking which is in the following terms:

58. Here the defendants say that most of the information relied on by the plaintiffs is in the public domain, much of the defendants' information was in their possession before it was disclosed by the plaintiffs and that all that they are using now was obtained from third parties without breach of any obligation of confidence owed to the plaintiffs. If that is so, an injunction subject to the proviso proposed by the plaintiffs would, in theory, not prevent the defendants from carrying on doing precisely what they are doing now. I put it to Mr. Bean that it would mean that on a contempt motion the court would have to resolve all the factual issues which cannot be resolved on this application. He agreed. He said that that was no problem because if the defendants acted in good faith they would not be punished or punished severely in the committal proceedings. I do not accept that argument. The reality is that an order in this form and subject to this proviso would put the defendants in a quite hopeless quandary as to what they could or could not do. If they say that a piece of information is in the public domain and the plaintiffs say it is not, what are they to do? In reality they would have to refrain from using that information for fear of being in contempt of court. If at the trial it is found that the information is in the public domain, they would have no recourse against the plaintiffs on the cross-undertaking in damages. The plaintiffs would say that public information is not covered by the interlocutory injunction and therefore the injunction did not inflict any harm on the defendants but rather their timidity in not having the courage of their convictions. As I have said, one of the purposes of an interlocutory injunction is to define clearly what a defendant can and can not do pending the trial of the action. If the injunction goes too far the plaintiff will have to make good on the cross undertaking in damages.

59. For these reasons it appears to me that the proviso does nothing to limit the plaintiffs' claims to that which they could argue they are entitled to at this stage. I am left with a claim to confidentiality in a mass of material where it is clear that much is not confidential at all and it is difficult to believe that the plaintiffs have made any bona fide effort to distinguish the protectable from the unprotectable. If this were a borderline case, this would push me towards refusing the relief the plaintiffs seek.

61. When a plaintiff asserts that a defendant has used confidential information there are a number of ways of proving it. The first is to produce direct evidence of use, for example from an employee of the defendant who has seen the information being put into practice or by finding documents showing what the defendant has done. Secondly it may be possible to prove use indirectly by demonstrating the existence of some significant fingerprint. For example the defendant's product may have dimensions, a design, composition or behaviour which is only to be found in the plaintiff's and which is consistent with the use of the information and inconsistent with use of non-contaminated sources. Similarly it may be possible to show that the defendant has gone to all the same suppliers and customers as the plaintiff and that it would be highly unlikely that the same group would have been approached had the defendant been working from uncontaminated sources. Thirdly it may be possible to persuade the court that the defendant could not have got to the position he has with the speed he has had he simply started from legitimate sources and worked everything out for himself. This last is particularly difficult. It depends on comparing how far the defendant has gone with an assessment of how long it would have taken him to reach that stage deploying the resources he has put into the endeavour without cutting corners. Whether the defendant's progress suggests misuse of confidential information therefore involves assessing (a) how far he has got, (b) how long it took him to get there, (c) what resources he put into the development and (d) the quality of the personnel he used for the development work.

62. In this case there is no suggestion that the plaintiffs can rely on the first of these routes. Nor can they rely on the second. When this matter was before me in June it appeared to me then that there was no evidence at all of misuse of any piece of the information on which the plaintiffs relied. I asked counsel whether there was any actual evidence of any particular identifiable piece of information being used. He could not point to anything. I suggested that the plaintiffs' case amounted to little more than suspicion based on the fact that the defendants had entered the field of phyllanthus amarus development without their help. He accepted that this was in large part so. Indeed it is a point made by the defendants. It will be recalled that Dr. von Keudell asserts that the defendants have hidden the use of his information. In other words he has no evidence that they have done so. Much of his case of dishonesty is circular in the sense that the lack of evidence that the defendants have done anything wrong is itself taken as evidence that they have. On the hearing of this application for interlocutory relief, I asked counsel to identify any particular piece of information in the documents now relied on which he could point to having been used by the defendants. He could not do so. At an early stage Dr. von Keudell said that the fact that the defendants had approached Rallis and SPIC indicated use of his confidential information. However the manner in which the defendants contacted those two companies (and its contact with the latter was short lived since it did not meet the defendants' standards) has been explained fully. No serious doubt has been thrown on that explanation.

63. The plaintiff's case is really dependent on the third type of proof; see paragraph 28(22) above. This, however, is quite hopeless. As Mr. Bean accepted, the plaintiffs do not know how far the defendants have progressed. It is therefore impossible for them to make a rational assessment of whether they have progressed quickly or slowly. Further the plaintiffs have no idea of how much in the way of resources the defendants have put into their project. What is clear on the evidence is that the defendants' resources are greater than the plaintiffs and that the defendants have used in their development work one of the most knowledgeable scientist in this field, Dr. Thyagarajan. Dr. von Keudell's evidence that the defendants could not have progressed as quickly as they have without using his confidential information is no more than unsupported assertion.

64. As against that the defendants have put in evidence, supported by testimony from third parties, that they began their phyllanthus amarus project before they ever met the plaintiffs (which is not in dispute), and that all their development has been done entirely independently of anything that the plaintiffs might have.

65. Alternatively it is said that there is no evidence to explain the defendants sudden keen interest in phyllanthus amarus to contradict the inference that it derived from their knowledge of its apparent viability from the information Dr. von Keudell had given them. I do not accept that any such inference can be drawn. The defendants' interest in phyllanthus amarus ante-dated their contact with Dr. von Keudell and there is nothing to suggest that it was revived or encouraged by anything that he told them.

66. A further alternative advanced during oral argument was that the defendants would not have considered a placebo trial had they not known of the success of Dr. Das' clinical trial. There is no material before me on this application which would allow that inference to be drawn either.

67. It is all too easy, under the protection of legal proceedings, to throw around allegations of theft. That is precisely what the plaintiffs have done here. As the evidence has progressed, the plaintiffs have become ever more strident in the allegations of dishonesty levelled at the defendants. As I have explained already, there is, at this stage, no significant or credible evidence that the defendants have misused any of the plaintiffs' information, even if it is confidential and had been supplied to them. On that material the allegations of persistent, extensive and prolonged dishonesty should not have been made or maintained.

69. In the light of these findings, it might not be thought necessary to consider question of balance of convenience. However for reasons which will become apparent hereafter, I think I should do so. The claim of damage to the plaintiffs was always week. There was never any risk of the defendants putting a product on the market before this dispute could have been resolved by the full trial of the action in the autumn of this year. Furthermore it is difficult to see what the immediate damage was which the plaintiffs feared. There was no suggestion that the defendants were publishing any of the material which the plaintiffs say was confidential. On the contrary Dr. von Keudell's case was that the defendants were keeping the information close to their chests. It is not suggested that the defendants are close to obtaining a product licence themselves. Furthermore it is now apparent, even if it was not at the time of the ex parte, that there were people outside the plaintiffs, including Dr. Thyagarajan himself, who were interested in this plant and its efficacy against Hepatitis. The plaintiffs never had a viable monopoly position. In addition to this, by the time the plaintiffs commenced these proceedings they knew that the defendants had been involved in independent research for 2 years. As I will explain hereafter, by the time of the ex parte application, the plaintiffs had chosen to wait at the very least some three months before commencing proceedings. None of this points to real urgency on the plaintiffs' side nor a substantial risk of loss. On the other hand the damage to the defendants has been explained by Dr Dixey and Dr. Rubin as indicated above.

70. In my view the balance of convenience is heavily in favour of refusing the plaintiffs interlocutory relief. In view of the factors set out above and the intense factual disputes between the parties this is a case which cried out for a speedy trial rather than an interlocutory injunction. That that was so was, or should have been apparent at all times.

71. For all the reasons set out above, I have come to the conclusion that this application for interlocutory relief is unjustified. It should not have been pursued. When this matter came before me in June I invited the plaintiffs to consider whether they wished to retain the ex parte injunction they had already obtained. By that time they could have been in no doubt of the seriousness of the harm they were inflicting on the defendants, the intense factual dispute between the parties on the central issue of whether the documents had been handed over and dishonestly retained, the ample evidence that the defendants' phyllanthus amarus development was based on the work of entirely independent and renowned researchers and the absence of any direct evidence of misuse of any information allegedly derived from the plaintiffs. By that time Lightman J had already ordered a speedy trial. Although they were offered the opportunity to climb down they chose to insist on retention of the injunction they had received. In my view they should not have done so.

72. That, however, is not an end of the matter. The propriety of the plaintiffs' application for ex parte relief was argued by Mr. Bean. In my view the application was flawed from the outset. Insofar as the professed original aim of the ex parte application was to recover the documents allegedly retained by the defendants, it is apparent that the plaintiffs never drew Carnwath J's attention to the fact that the plaintiffs knew of that wrongful detention, assuming it had taken place, for nearly two years. When the documents were not returned in response to Dr. von Keudell's letter of 13 November, he did nothing for another 8 months. When they were not returned in response to the second letter of 15 July 1997, he did nothing more for nearly a year. Furthermore it is now clear that Dr. von Keudell thought he had a strong case of breach of confidence and was planning an Anton Piller Order at least three and a half months before the application was made to Carnwath J. Mr. Bean confirmed that this was not drawn to the learned judge's attention. This is not meant as a criticism of counsel. They may well not have known of Dr. von Keudell's earlier plans. Mr. Bean answers this criticism by saying that a speedy application to the court is not necessary where the application is made for retention or preservation of goods or property. For that reason the plaintiffs' months or years of delay would not have been a relevant factor to be weighed in the balance by the judge. I reject that submission. Even if speed is not a determining factor in whether an Anton Piller order is to be granted it is, in my view, a highly material one. Unexplained delay is relevant to the issue of whether there is a bona fide fear that the plaintiff will suffer serious harm if relief is not granted. A party applying for an Anton Piller order has an obligation to make full and frank disclosure to the court. Failing to draw the court's attention to delay of this magnitude is a failure to meet that obligation.

73. It can be said that in any event no Anton Piller relief was granted here, only an ex parte injunction. But the obligation to make full and frank disclosure applies to all ex parte applications including those for injunctions alone. In relation to this it appears to me that there were numerous matters which should have been put before Carnwath J. but were not. They include the following (i) that there had been many months delay in bringing the proceedings, (ii) asserting confidence in material which the plaintiffs must have known were in the public domain, (iii) failing to inform that judge that they were asking for an injunction defined by reference to documents which they had no intention of allowing the defendants to see, (iv) failing to inform the judge that they had no intention of particularising the contents of the oral communications in respect of which they were seeking and obtained relief and (v) obtaining an injunction in respect of oral communications without drawing the judge's attention to the fact that they had expressly agreed with the defendants that in the absence of compliance with certain formalities (which had not been complied with) such oral communications were not to be treated as confidential. Alone and together these were significant omissions. The plaintiffs failed to make full and frank disclosure in relation to the ex parte application and are therefore guilty of an abuse of process. It is for these reasons that yesterday, at the end of Mr. Bean's submissions I discharged the ex parte injunction.

"It seems to me ... that [O. 62 r. 7(4)(b)] is beneficial and one which the profession might well seek to operate more often because it avoids, given proper evidence as to the amount of costs, the delay and expense involved in taxation which will otherwise inevitably be incurred."

75. I want to make one final point clear, in case it is not clear enough in this judgment. None of the criticisms levelled at the plaintiffs' conduct of these proceedings should be taken as a criticism of their legal advisors, whether solicitors or counsel. On the contrary, the hearings which took place before me were conducted in an exemplary fashion. The criticisms are to the plaintiffs' case and the instructions their lawyers were given to carry out.