Mex Group Worldwide Limited v Adam Duthie & Anor

This dispute grew out of a broken professional relationship and the handling of confidential information after that relationship ended. The claimant said its former external general counsel and his company had access to sensitive material and later used or shared it in ways that supported parties opposing the claimant in related litigation.

The immediate issue before the High Court was narrower than the wider allegations. The defendants had already given undertakings to the English court restricting what they could do with the information and how they could participate in related proceedings. After a Scottish court cited Mr Duthie as a witness, the defendants asked the English court to relax those restrictions.

The court was not deciding, at this stage, whether the defendants had finally breached confidentiality duties. Instead, it had to decide whether the undertakings already given should be varied. That matters because businesses often assume a later practical problem will justify changing an agreed court position. This judgment shows that assumption can be risky.

The defendants argued that the Scottish citation was a significant change of circumstances. They also argued more broadly that the undertakings were very restrictive and that varying them would help the fair and efficient conduct of the Scottish trial. The claimant said the undertakings were knowingly agreed, with the Scottish proceedings already in view, and that they did not stop Mr Duthie from simply attending trial if required.

The central legal question was whether the court should vary undertakings previously given by the defendants. The judgment records that the parties broadly agreed the court should look for a special or significant change of circumstances after the undertakings were given. The judge also considered an alternative argument that the court could take an overall merits-based approach.

Alongside that, the court had to manage a tension common in confidentiality disputes: open justice on one hand, and the need to protect confidential information and the purpose of the hearing on the other. The judge therefore first decided that the variation application itself should be heard in private under CPR 39.2(3), because public discussion might defeat the object of the hearing and damage confidentiality.

The court dismissed the application to vary the undertakings. The judge was not persuaded that the Scottish witness citation amounted to the kind of special or significant change needed to justify variation. A key reason was foreseeability. The undertakings had been negotiated in detail, and the defendants accepted strict wording while already aware of the Scottish proceedings and their likely direction.

The judge also placed weight on Mr Duthie’s experience as a solicitor and on the fact that the undertakings were freely given. The court noted that the defendants had accepted specific restrictions, including an absolute prohibition on assisting Scottish defendants and on filing further witness evidence in the Scottish proceedings. The judge considered that the possibility of Mr Duthie giving evidence in Scotland was more than a remote possibility when those undertakings were agreed.

Even if a broader merits-based approach were available, the judge said he would still refuse the application. Questions about what Mr Duthie could properly say, what documents he could rely on, and how privilege should be handled were matters for the Scottish trial judge, not for the English court to pre-decide on a short variation application.

This case is most useful as an operating lesson on confidential information, former advisers and emergency court protections. If a consultant, outsourced legal lead or senior contractor has deep access to your business, the real risk often appears after the relationship sours. Information can then become relevant in other disputes, and the line between defending oneself and using a former client’s confidential material can become contested very quickly.

The judgment shows three practical points. First, negotiated undertakings can be a powerful short-term protection. Secondly, wording matters: if you leave broad exceptions, they may later be used. Thirdly, if you agree strict restrictions without building in a process for future compulsory evidence requests, it may be difficult to reopen the deal later.

Businesses can reduce the chance of this kind of dispute by combining contract drafting with practical access controls. The legal documents matter, but so does the way information is stored, labelled and shared. If a dispute starts, speed and evidence are critical.

Where a former adviser may hold sensitive material, your immediate aim is usually to preserve confidentiality, stop further use, and avoid accidental waiver of privilege. Early legal strategy should also consider whether related proceedings in another jurisdiction could complicate the position.