In this important judgment concerning so-called “Wrotham Park damages”, Leggatt J awarded only nominal damages against former employees who copied their employer’s confidential information but made no use, or limited use, of that information and did not cause any damage to their former employer.
Mr Bridgeman admitted that over a period of several months before he left Marathon’s employment in December 2012, he copied onto USB drives a substantial number of files containing information confidential to Marathon and that he kept these files until the summer of 2013 when they were delivered up to Marathon after proceedings were threatened. He also admitted that, in copying the files and retaining them when he left Marathon, he was in breach of his contract of employment.
Mr Seddon had shared 33 files containing information about Marathon’s business with Mr Bridgeman on 29 August 2012 by saving copies on a shared drive on Marathon’s computer system. Shortly afterwards Mr Bridgeman downloaded the 33 files to one of his USB drives.
The files which Mr Seddon shared with Mr Bridgeman were never actually used after they left Marathon’s employment. Mr Bridgeman made some use of a few of the many other files which he copied and removed but this did not cause Marathon any financial loss or result in any financial gain for the defendants.
Marathon argued that the licence fee damages it claimed should be assessed by valuing all the confidential information in all the documents copied and removed by the defendants on the assumption that the defendants were free to make as much use as they saw fit of the information.
Leggatt J held that Marathon’s approach to the assessment of licence fee damages was flawed for a fundamental reason, namely a failure to identify accurately the wrong for which licence fee damages were being sought and to match the remedy to that wrong. It was a fallacy to proceed as if the defendants had purchased the right to use Marathon’s files.
The full judgment can be read here.
Victoria Windle acted for Mr Bridgeman.