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There is no property in a witness, but there may still be obligations of confidentiality


Porton Capital Technology Funds and another v 3M UK Holdings Limited and another [2010] EWHC 114 (Comm).

Mr Justice Christopher Clarke has decided "an important question of principle as to the extent to which access to a witness may be restricted on the grounds of confidentiality and the effect of disclosure in the proceedings on confidentiality". The Claimants in the proceedings wished to interview two ex-employees of the Defendants with a view to taking witness statements. The ex-employees owed duties of confidentiality to the Defendants, which the Defendants were unwilling to waive. The Claimants applied for an order declaring that the matters in issue in the proceedings were not confidential as between the parties, or an order requiring the Defendants to waive their rights of confidentiality as a condition of the Defendants being granted an order for a confidentiality club over their documents, for which the Defendants had cross-applied. The Claimants relied on the well known principle that "there is no property in a witness".

The Claimants' application was refused in both respects and the Defendants' cross-application succeeded. The Court held that "The objective of ensuring that the parties are ‘on an equal footing' ought not, in ordinary circumstances, to require that obligations of confidence are overridden. If the court were to do so it could be said that the party whose confidence is overridden was not on an equal footing with his opponent, nor treated fairly, because his legal rights were not respected whereas those of his opponent were."

The judgment is here.

The successful Defendants were represented by Simon Salzedo.