01/10/2021

Designers, breach of confidence, conspiracy and exemplary damages

Salt Ship Design AS v Prysmian Powerlink SRL [2021] EWHC 2633 (Comm)

 

Michael Ashcroft QC, instructed by HFW (Alistair Feeney), acted for the successful claimant designer in this litigation concerning the design and construction of an advanced cable lay vessel. The judge rejected the claimant’s ‘plain vanilla’ contract claim, but found that there were breaches by the defendant of contractual and equitable duties of confidence and that the defendant engaged in a conspiracy to use unlawful means with Vard Design AS, a rival designer.

The wrongdoing involved the defendant and Vard Design AS collaborating together in the use of the claimant’s design so as to produce an alternative, similar design. In a carefully reasoned judgment, the judge held that the defendant’s conduct was “sufficiently high handed or egregious” to, potentially at least, justify a punitive response by way of an award of exemplary damages. However, he deferred further consideration of this issue pending an assessment and determination of the other remedies available to the claimant for breach of confidence. The judge stated that, if the claimant is in due course awarded the approximately €5 million saving that the defendant gained as a result of its decision to proceed with a rival design, this would have “a very material bearing on the court’s willingness to make an award of exemplary damages”, and noted that there were also outstanding issues regarding injunctive relief.

 

Read the full judgment