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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Inline Logistics Ltd v UCI Logistics Ltd [2001] EWCA Civ 1613 (11 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1613.html Cite as: [2002] TCLR 5, [2001] EWCA Civ 1613, [2002] RPC 32, (2002) 25(1) IPD 25002

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE FERRIS

		Royal Courts of Justice Strand London WC2 Thursday, 11th October 2001

1. LORD JUSTICE MUMMERY: This is an appeal in an action for alleged misuse of confidential information contained in a design drawing for a warehouse. The claim by Inline Logistics Ltd ("Inline"), the appellant, against the respondent UCI Logistics Ltd ("UCI") was dismissed with costs by Mr Justice Ferris on 31st July 2000 following a five-day trial in May 2000.
2. In summary, he held as follows on the three main points in the case:

(1) The only confidentiality which existed was in a particular combination of six features or concepts relating to the design of a warehouse, as contained in a drawing made in June 1997 by Inline for UCI for UCI's use in making a tender bid. That is called drawing no. 113. The judge rejected Inline's wider claim that they were entitled to protect as confidential information 11 individual items consisting of design features or concepts in connection with the design of the warehouse.

(2) The judge held that UCI had not made use of that confidential information in the form of the particular combination of design features.

(3) Such use of Inline's confidential information as may have been made by UCI had been authorised by and used with the consent of Inline.

3. Inline originally made a further claim that there was a joint venture agreement between them and UCI and that UCI had acted in breach of it in relation to the use of information supplied to them by Inline for the purposes of that joint venture. At the trial this claim was not pursued. Although there is no appeal on that part of the case, some aspects of the pleadings, evidence and argument which relate to the joint venture claim impinge on the sole surviving claim of misuse of confidential information, in particular in relation to the issue of authority and consent to use of the information.
4. This appeal, on which Mr Hicks appears for Inline, is with the permission of the single Lord Justice. A recommendation by him to use the Court of Appeal ADR scheme has unfortunately not borne fruit.
5. The appeal is against all three aspects of Mr Justice Ferris's judgment. UCI, for whom Mr Justin Turner appears, have served a respondent's notice challenging the judge's decision in Inline's favour that the six combined features in drawing no. 113 are protectable as confidential information.

The Parties

6. The managing director of Inline is Mr Graham Smith. Through his company he provides design and build construction services in the field of warehousing and handling systems for goods. It might be thought that there was little scope for confidential information in such an activity, but that would be wrong. The judge said this:

"I am satisfied, after hearing the evidence in this case, that a considerable degree of skill and knowledge is required in order to design a warehouse which efficiently and safely satisfies the requirements of the owners of the goods in respect of the storage and handling of those goods. It is not just a simple matter of providing sufficient racking to accommodate the expected quantities of goods. Other questions which have to be considered are the efficient rotation of stock, the accessibility and handling of fast-moving items and the provision of a layout which enables the goods to be placed on and taken off the racks by means of fork-lift tracks"

(it must be trucks)

"or equivalent vehicles. There is also a need to provide a system which will enable diverse products to be collected so as to be delivered in a single delivery to a retail outlet or similar destination. Mr Smith has for many years specialised in the provision of solutions to these and other requirements presented by customers."

7. Within Inline Mr Smith has a skilled assistant who is capable of operating equipment for computer assisted design, referred to in these proceedings as "CAD". Inline also act as agents for one of the main suppliers of racking systems, Readyrack Ltd.
8. I turn to UCI. They are engaged in the transport and warehousing of goods. They own and operate a number of warehouses, one of which is at Castleford, West Yorkshire and is known as Red Rose Building, Robson's Distribution Centre, Castleford. The warehouse was described by the judge as follows:

" ..... the warehouse consisted of an empty building, the age of which I do not know, with a rectangular floor plan. It is convenient to think of the two longer sides of the warehouse as being on the north and south respectively, the ends being at the east and west, although I am not certain if this represents its precise orientation. The warehouse was a single storey building covered by a double pitched roof. The ridges of the roof ran from east to west, as did the valley between the two pitched sections. The roof was supported internally by lines of vertical pillars. At both north and south sides the pitched roof extended outwards beyond the north and south walls of the warehouse. These projections provided canopies which would provide shelter to vehicles bringing goods to the warehouse or collecting goods from it. The goods were brought in and out through doors or entrances cut in the north and south walls. Internally the warehouse was divided into three sections of approximately equal size by means of two partition walls running across the warehouse from north to south."

The Events

9. I turn to the events which led up to the issue of the proceedings. In October 1995 Mr Kenneth Lockren was appointed warehouse development manager of UCI. He had previously worked with Mr Graham Smith of Inline. UCI had used the services of Inline in other warehouse development projects. So Mr Lockren was aware of Mr Smith's particular expertise which UCI lacked. In particular, UCI lacked among their staff a skilled operator of CAD equipment for the production of drawings and designs.
10. Early in 1997 UCI became interested in developing their warehouse at Castleford as a dedicated warehouse for a particular customer. This was part of a move by UCI into a new sector of the market, which involved adapting warehouses to the requirements of particular customers. The particular customer for the Castleford warehouse was Kimberley-Clark Ltd ("KC"). KC manufacture and supply paper and paper products. Meetings took place between UCI and KC about the Castleford warehouse for the purpose, among other things, of identifying KC's requirements. UCI made a presentation to KC. In May 1997 KC issued a formal invitation to tender. Tenders were requested to be submitted by 12 noon on 27th June 1997. Also in May 1997 Mr Lockren contacted Mr Smith about the tender. They had had discussions about it. Earlier in the year Inline had made measurements of the dimensions of the Castleford warehouse.
11. Mr Smith, at the request of UCI, embodied his design ideas in various drawings submitted by him to UCI at some time during June 1997, probably in or before the end of the week beginning 16th June and certainly not later than 20th June which, it should be noted, was only a week before the deadline for the submission of the tender. It is agreed between the parties that the essence of Mr Smith's design appears in the drawing numbered 113. Inline contend that drawing 113 contains relevant confidential information and allege that that has been used by UCI without their licence. The drawing takes the form of a proposal for a design of the warehouse, including both the design of the building and the interior layout of the racking. The drawing bears the name of UCI, not Inline. It is not marked confidential. The judge described the main features of the drawing:

"The main features which appear from this drawing are -

(i) Both the areas to the north and south covered by canopies were to be walled in, the previous side walls of the warehouse being knocked down. In this way the size of the interior of the warehouse was to be increased so as to include the two areas covered by canopies which were previously outside the warehouse.

(ii) Instead of deliveries and collections being made to and from both the north and the south face of the warehouse, all deliveries and collections were to be made to and from the south face. There being no longer any canopy on that face, vehicles would have to be loaded and unloaded in the open, without protection from the rain or other elements.

(iii) The internal walls which had previously divided the warehouse into three sections were to be removed and the racking insider the warehouse was to run in lines from east to west instead of from north to south as in the February design.

(iv) A considerable amount of the racking was to be `double deep'. This is in contrast to the more usual type of racking in which there is space for only one pallet at each level of the rack on each side of an aisle. In the double deep racking there is space for two pallets, one being placed behind another.

(v) It was envisaged that the goods delivered to the warehouse would be received in an area on the left hand side of the warehouse, looking at it from the south elevation. In the reception area there would be what is described as `pallet live storage'. In this form of storage pallets are delivered on one side of a rack consisting of a series of rollers. The pallets are then moved towards the other side on the rollers. When they reach the other side they are taken away for storage elsewhere.

(vi) In the north east corner of the warehouse, occupying about a third of the space which was originally outside the warehouse and covered only by a canopy, there was what was described as a `hospital area' and a truck maintenance area. The hospital area was a department in which goods which, or the packaging of which, had been damaged in transit could be re-packed or otherwise dealt with by way of salvage."

12. After seeing the drawings, UCI became concerned that the tender was not advancing as quickly as it should. This concern was mainly on the part of the operations director, Mr Isbister. He was put in charge of preparing the tender along with a number of other employees of UCI: Mr Lockren, Mr Demet, Mr Doran, who was an information technology director, and Mr Yates, a business analyst at UCI. In the week of 16th June these employees did work analysing KC's requirements. The work involved, which was mainly done by Mr Yates, was both difficult and time consuming. By the end of the week they concluded that Inline's proposals were inadequate to meet KC's requirements. They decided that much further work needed to be done before the tender could be submitted.
13. On Monday 23rd June Mr Lockren had a meeting with Mr Smith. They discussed modifications to the design which UCI considered were required. The result of the modifications, using Inline's CAD facility, was drawing no. 113. Mr Lockren took a copy of that drawing and other drawings home with him. He did not return to work. He had felt unwell for some days previously. On 23rd June UCI were still in the process of considering and analysing data provided by KC relating to the movement of the goods within the warehouse. It was the view of Mr Isbister, Mr Doran and Mr Yates that new formal drawings would be required in order to incorporate the results of that equipment and that CAD would be needed to do that work.
14. Mr Isbister telephoned Mr Smith to ask him for help in these respects. The reaction of Mr Smith was that he was unable to assist and there was no one else at the time who could be spared to do the necessary revisions to the drawings. Mr Isbister emphasised to Mr Smith the imminence of the immovable deadline and said that UCI would have to find someone else to help. The judge found that Mr Smith was not asked by Mr Isbister whether he would be available to do this work on Wednesday 25th June. Mr Isbister gained the impression that Mr Smith was unwilling to provide the help needed to enable UCI to get the tender in by 25th June. UCI felt let down by him.
15. On 24th June arrangements were made with a major supplier of warehouse racking, Dexion, for a CAD draftsman with the appropriate equipment to be made available for use by UCI. The UCI team continued to carry out work, but without reference to Inline's drawings, which were not available to them because Mr Lockren had taken them home with him. Mr Yates collected the drawings from Mr Lockren after an unsuccessful prior attempt to obtain copies of them from Inline. On Wednesday 25th June Mr Doran went to the premises of Dexion at Gainsborough. He took with him material prepared by the UCI team earlier in the week, but he did not take with him any of Inline's drawings. During the Wednesday Mr Doran and the CAD draftsman at Dexion worked on revisions to the warehouse design with a view to submitting it for tender. The result of their efforts was drawing no. 118. The judge found that this drawing had a number of similarities to the Inline drawing no. 113, but there were also a number of substantial differences. The UCI tender was submitted to KC in time; it was some 90 pages long and one of the pages included was drawing no. 118. It included a considerable amount of material in addition to the design.
16. On 3rd July 1997 KC informed UCI that they had been successful in progressing to the final stage of the tender process. UCI made a final presentation to KC on 9th July. Their tender was accepted on 16th July. UCI later instructed another firm to carry out a fresh survey of the warehouse. That firm worked together with UCI on a new design for the racking layout, which was different in substantial respects from both drawing 113 and drawing 118. Further changes in the layout were made subsequently to the acceptance of the tender. An order for racking was placed by UCI with Dexion in the autumn of 1997. These activities post-tender were not the subject of detailed evidence at the trial or of findings by the judge and have played no part in submissions made by eider either side in this appeal.
17. No payment was made by UCI to Inline for the work done by Mr Smith and the Inline CAD operator. Inline had no share in the profits yielded by the acceptance of the tender by KC. No claim has been made by Inline against UCI for the price of the work done.

The Proceedings

18. The claim is for compensation for unauthorised use of the information brought into existence by the expenditure of work and skill on the part of Inline. The proceedings were started by a writ on 1st April 1999. A statement of claim was served on 13th May. The claim for the joint venture was pleaded in these terms on paragraph 3:

"In about December 1995 the plaintiff and the defendant agreed as follows:

(1) the plaintiff and the defendant would co-operate in relation to projects of warehouse services to be undertaken by the defendant.

(2) At the request of the defendant the plaintiff would undertake the necessary design and specification work for a project, supply relevant pricing information and assist in the presentation of the project to the potential customer.

(3) If any proposal for a project according to the plaintiff's designs and specifications were accepted by the defendant's customer, the contract for the construction and installation work the subject of the plaintiff's design and specifications would be placed with the plaintiff.

Hereinafter such agreement will be referred to as the `joint venture agreement'."

19. As already stated, this claim was not pursued. There were no other claims in the statement of claim for breach of contract, infringement of copyright or infringement of any other intellectual property right.
20. The sole surviving claim is for breach of confidence in the drawings and specification supplied by Inline to UCI. The claim was made in respect of 11 confidential design ideas, concepts or features embodied in the confidential drawings made by Inline, in particular drawing 113. It is clear from the statement of claim, first, that the claim to confidentiality was made as to each of the 11 items separately (set out under paragraph 7 of the statement of claim). A claim is also made that the confidential information existed in each and every combination of the 11 items. It is then pleaded at paragraph 9 of the statement of claim as follows:

"It was an implied term of the joint venture agreement that the defendant might use any drawings and specifications produced by the plaintiff pursuant to the joint venture agreement, but only for the purposes of the joint venture agreement. No express or implied licence was given by the plaintiff to the defendant to use any drawings or specifications produced by plaintiff for any other purposes."

21. It is alleged in paragraph 10 that, in breach of the duty not to use Inline's confidential information, UCI had used each and every one of the 11 items set out in paragraph 9 for purposes other than those of the joint venture agreement. Particular mention is made of the involvement of Dexion Ltd.
22. In paragraph 7 of the defence UCI pleaded as follows, having denied the confidentiality of the information and their use of it:

"Further and in the alternative if and insofar as the drawings and specification contained any information that was confidential and is the property of the plaintiff, the plaintiff supplied that information to the defendant specifically for use in the submission of a tender for the Kimberley-Clark project at the Castleford site and gave its implied and/or express consent to the defendant to the use of such information in respect of that project."

The Law

23. There is no dispute as to the relevant legal principles. The three requirements which have to be satisfied to establish a claim of misuse of confidential information were set out by Sir Robert Megarry V-C in Coco v A N Clark (Engineers) Ltd [1969] RPC 41. First, the information must have the quality of confidence. All that means is that it must not be common knowledge or published information, nor must it be obvious or trivial information. There is an issue as to confidentiality since UCI pleaded that none of the items claimed separately or in combination were confidential. Secondly, the information must be imparted in circumstances which give rise to an obligation of confidence on the part of the recipient. There may be a contract to that effect, but that is not a requirement in order to protect confidential information in equity. No contract is relied on in this case. There is no dispute as to the existence of this requirement, if the information is confidential. Thirdly, there must be shown to have been an unauthorised use of the information which is detrimental to the confider. UCI deny that they have used the information and, as is already apparent from the pleading quoted, contend that in any event any relevant use by them was for the purposes of a tender to KC, which was authorised and made with the knowledge and consent of Inline.
24. I must add a word on drawings. It is clear that design drawings and similar documents can be the subject of confidential information. One example cited in argument consisted of the drawings for the use of manufacturing tools discussed by Lord Greene MR in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203. The legal position is that work and skill on the production of drawings may result in confidential information, even though the work is on constituent materials available for the use of anybody and the results can be the same as these produced by other persons going through the same process as the person who created the information.
25. I have already mentioned that drawing 113 was not marked "confidential". It does not have to be in order to enjoy the quality of confidence either as a whole or as to any particular item of information embodied in it.
26. The only other citations cited in addition to Coco and Saltman were two passages in the judgment of Mr Justice Laddie in Ocular Sciences Ltd and Another v Aspect Vision Care Ltd and Others [1997] RPC 289. I shall not read out the passages cited but they are to be found in the report: at page 375 lines 5 to 71 and page 374 line 15 to 25.

The Issues

27. The issues formulated by the judge were as follows:

"The issues which need to be decided in this case are, I think, threefold. First there is the question whether the information contained in the drawings provided by Inline to UCI was confidential, either in respect of its separate component parts or as a whole. Secondly I must consider whether this information has been used by UCI. Thirdly there is an issue whether any use which has been made of the information was unauthorised use."

28. Neither side has made any criticism of that formulation. I would note at this point that the judge took particular care to identify the information alleged to have been provided by Inline to UCI. He referred in the formulation to "the information contained in the drawings", whether "this information" was used and whether such use of it was unauthorised use.
29. The purpose of highlighting that point is this that in confidential information cases it is important to identify with some precision the information claimed to be confidential and to have been used without the necessary permission. Confidential information is intangible. In some cases it may not have even taken any material or permanent form. It may consist, for example, of an oral communication. Confidentiality may exist in individual items of information. It may exist in a drawing or document as a whole or it may take a more limited form as, for reasons I shall explain later, it did in this case, that is, a particular combination of ideas, concepts or features which have been embodied within a drawing. The definition of the information in every case must be reasonably specific for the purposes of not only determining whether it is confidential but also whether it has been communicated and whether what has been communicated as confidential has been the subject of unauthorised use.

The Confidentiality Issue

30. In his judgment the judge considered in detail each of the 11 items set out in the statement of claim and claimed as confidential. His overall conclusion is as follows:

"Having regard to the views I have expressed I do not find it possible to say that any of the individual ideas and features I have considered have, when taken in isolation, the `necessary' quality of confidence to support an action for breach of confidence."

31. The 11 items I can deal with very briefly. (1) The idea changing the existing method of operation from operating out of two sides of the building and instead operating out of one side only; the judge described this as simply an obvious possibility that had no degree of confidentiality in it. (2) The idea of filling the canopies to create additional space; the judge came to the same conclusion as on item (1). (3) The idea of rotating the racking by 90 degrees; the judge held that there was no confidentiality in this. The racking runs either north-south or east-west, and there is no confidentiality in either of those arrangements. (4) The idea of using double-deep racking for storage so as to increase the racking space; the judge said that this was a standard product described in published brochures. (5) The idea of using three pallets per pair of beams rather than two; the judge regarded this as so obvious so as not to be confidential. (6) The idea of using pallet live storage for the pick face; the judge said that there was nothing confidential about the nature of this. He referred to it as a standard possibility. (7) The idea of using "push back" above the live storage; the judge held that the "push back" racking was a standard type of racking system and that there was nothing confidential in the combination of the idea of `push back' racking above the live storage. (8) The overall layout and arrangement of the racking as set out in the Inline drawings; the judge said this was a reference to the design features in combination and to the design as a whole, which the judge dealt with separately, as I shall describe in a moment. (9) Details of the existing site as recorded in the Inline drawing. In so far as this was a claim that the dimensions of the Castleford warehouse was confidential, the judge described the claim as "manifestly absurd". The claim that drawings incorporated the results of the survey of the warehouse carried out by Inline were not confidential. They could be replicated by anyone who conducted the same exercise. (10) Information as to the matters above which would meet the needs of KC; the judge said this was not a matter of confidentiality at all, it was simply an assertion as to Mr Smith's knowledge and expertise. (11) Finally, information that the alternative layout in "option 2 drawing" would not be satisfactory for the needs of KC; the judge said that it was not suggested that UCI had used the option 2 drawing in any particular way.
32. Having dealt with each of the 11 individual items in that way, the judge turned to consider the claim for confidentiality in each and every combination in the design as a whole. On this he said:

"But the other items, notably items (1) to (6), are features of the particular design embodied in the Inline drawings. Even though the individual items are not novel or confidential, the combination of them which is incorporated in the design represents, to use the words of Megarry L in Coco v Clark, the product of `the application of the skill and ingenuity of the human brain'. The question which then arises is whether this alone is sufficient to confer a confidential nature on the design as a whole or whether something more is required."

33. In that discussion the judge had stated earlier that he was disregarding items 7 and 11 in the list of individual items for the reasons he had stated. Having considered what I may call the combination question, the judge reached this conclusion on page 38 line 4 of the transcript:

"The information contained in the drawings is not non-selective. It represents a particular designer's proposal for a warehouse system which would supposedly meet KC's requirements as that designer understood them to be. It was the product of Mr Smith's knowledge, skill, experience and brain power and required the expenditure of time and effort by Mr Smith or his assistant on behalf of Inline, albeit not in my view as much time and effort as Mr Smith sought to maintain. In my judgment it cannot be characterised as a `mere non-selective list of publicly available information'. I consider that it has the necessary quality of confidence to support an action for breach of confidence if the information has been used in an unauthorised manner."

34. It will be seen that the reference to a "mere non-selective list of publicly available information" is an echo of what was stated on this point by Mr Justice Laddie in Ocular Sciences. At various points in his judgment the judge referred to the confidential information in the "combination" sense. He referred to the combination of items incorporated in the design. He referred in another passage to a particular design proposal for a warehouse system by Mr Smith. There is a later reference by him on page 44 of the transcript, lines 1 to 5, where he referred to "the very limited" degree of confidentiality attached to those features of the Inline designs which are retained in the UCI drawing. The judge had already rejected the claim to confidentiality in each of the 11 items individually. It must also be made clear that at no point in his judgment did he hold that the drawing as a whole was entitled to confidentiality. It is clear that the judge had settled on an intermediate position, in which confidentiality was limited to the way in which the particular items 1 to 6 cohered or were combined together in drawing no. 113.
35. This definition of what was the confidential information is important in considering the attack made by Mr Hicks on the judge's findings that the confidential information of Inline was not used in UCI drawing 113 attached to the KC tender. It is also relevant to the respondent's notice, in which UCI contend the combination of features in drawings lacks the quality of confidence.
36. Mr Hicks' submissions on the confidentiality point were these. First, he raised a challenge to the judge's findings on item 9, that is, dimensions of the warehouse. He relied on the statement of claim, submitting the information under item 9 consisted of dimensions of the warehouse, was the product of skill and work expended and was confidential, even though the same information could be asserted by UCI or someone on their behalf going through the same exercise. He said this information was of value to UCI, as shown by their use of that information in drawing no. 118. The information told them something they could have found out for themselves, but did not know until Mr Smith supplied it to them.
37. I would reject Inline's submissions on item 9. I agree with the judge's conclusions. The quality of confidence generally requires more than just the expenditure of skill and effort on the production of information. As between Inline and UCI there was nothing confidential about the information. It consisted of nothing more than the results of a survey producing dimensions and putting them together.
38. As to the judge's findings on the confidential information on the combination features, which is the subject of the respondent's notice, I would reject UCI's contention that the judge should have held that the combination lacked the necessary quality of confidence. It is clear from the authorities that, as a matter of law, a particular combination of individual design features - themselves not confidential because they are common knowledge, obvious or commonplace - may be protected as confidential information. Although I would regard this as a borderline case on the facts, I have come to the conclusion that on the material before him, the judge was entitled to conclude that Inline was entitled to a very limited extent of confidentiality in the particular form in which the items 1 to 6 were combined in drawing no. 113.

The Use Issue

39. The judge started from the position that some indirect use had been made of Inline's information in drawing 113 as a basis for the production of drawing 118 by Dexion. The judge examined in detail the main differences between the two drawings, reminding himself that he was not hearing a copyright action. The question was whether UCI had used Inline's confidential information and not whether UCI had reproduced or copied a substantial part of the drawing, in which UCI claimed a copyright. The judge commented on the amount of re-designing which had taken place between the two drawings as the result of the work of UCI's team and the work of Dexion. He said drawing 118 was not based on Inline's work. He referred to the differences between the two drawings as being much more significant than what he described as the "superficial similarities". His conclusion was in these terms:

"My general conclusion is that, having regard to the nature of the changes made the limited extent to which, on a proper evaluation, there are similarities between the two designs and the (at best) very limited degree of confidentiality attached to those features of the Inline designs which are retained in the UCI drawing, it cannot be said in any realistic sense that UCI has used confidential information belonging to Inline."

40. Before dealing with Mr Hicks' submission on this point, I should quote the immediately preceding passage which has been subject to his criticism. The judge said:

"The similarity of the general wording and layout, which cannot be accurately reproduced in this judgment, are consistent with my finding that the UCI drawing was at least indirectly derived from the Inline drawing. But the differing amounts of the various types of racking and number of bays provided illustrate the amount of re-designing which has taken place between the two drawings. This re-designing was, I am satisfied, the work of the UCI team, not based on Inline's work. In my view it is much more significant than the superficial similarities."

41. On the question of use, first, of item 9, Mr Hicks repeated the submission he had made on the confidentiality question, saying that information was confidential and that it had been used by UCI. The dimensions in drawing 118 were the same as the dimensions of the warehouse in drawing 113. As to the combination of items, the judge found, as already appears from the passages quoted, that indirect use had been made in drawing 118 of items of information contained in drawing 113. But, Mr Hicks submitted, this use did not cease to be a use by reason of the re-design work, and modifications which had created differences between the two drawings. This, he said, was not a copyright case where it had to be established that the copying was of a substantial part. This was a confidential information case and the issue is whether use has been made of the confidential information. The judge's findings of fact were that use had been made. His general conclusion that use had not been made in any realistic sense did not follow from his findings. The judge had, on Mr Hicks' submission, focussed too much on the differences between the two drawings and had not taken proper account of the striking similarities between them. Those similarities were more relevant to the issue of use than the differences on which the judge had placed so much importance. Mr Hicks submitted that the differences and modifications were not relevant or were of minimal relevance to the issue of use.
42. My conclusions on this point are these. I agree with Mr Hicks that, as a general proposition, the proper legal test in breach of confidence cases is one of use and that the addition of other materials to materials which have been used in the making of modifications does not prevent it from being a case of use of the information. That general proposition has to be applied to the particular facts of this case, in particular the critical question as to the identity of the information which the judge held to be confidential. The judge held that there was no confidentiality in any of the 11 items taken separately. He made no finding that drawing 113, taken as a whole, was itself confidential.
43. The only claim that could be made for use of information was in relation to the particular combination of the six non-confidential items shown as 1 to 6 in the list in the statement of claim and appearing in drawing 113. This combination is more limited than simply finding one or more of the six items in drawing 113 present in drawing 118. What has to be found is use of the particular combination. In my view, the judge was entitled to conclude that that particular combination of items 1 to 6 was not used in drawing 118. Drawing 113 did not appear on drawing 118.
44. As to Mr Hicks' submission on item 9, it appears that the same dimensions had been used but, for reasons I have already given, that did not involve the use of any information that was confidential. UCI was entitled to use that information which was easily ascertainable by it either directly or through an agent employed for that purpose. It is not enough to establish the use of confidential information from combination to point out that there had been indirect use of drawing 113 or that some of the non-confidential individual items which appear in drawing 113 also appear in drawing 118. In these circumstances the judge was entitled to reach the conclusion that there was no use by UCI of the particular combination of features in drawing 118.

Consent to use issue

45. Thirdly and finally, I turn to the issue of authority or consent to use. The judge's conclusion on this point was that Inline had given their authority to do what UCI had done. He held that the only implication that could be made was that UCI were to be free to use Inline's drawings in the preparation of a tender to KC. He said in the transcript at page 44 line 12 as follows:

"The incontrovertible fact which stands out in relation to the issue of authority is that Inline prepared its drawings and delivered them to UCI with the knowledge and intention that they should be used for the purpose of UCI's prospective tender for the KC contract. It must follow, in my judgment, that UCI was implied[ly] authorised by Inline to use the Inline drawings including all the information contained in them, whether confidential or not, for that purpose. On the face of it UCI used the drawings for this purpose and for no other purpose. Hence, unless there is something which contradicts or qualifies this implied authority, it must inevitably be held that UCI had Inline's authority to do what it did."

46. The judge went on to reject Mr Hicks' contention that there was an implied contract that Inline's plans should not be used by Inline, save for the particular purpose for which they were supplied.
47. He commented on the difficulties of Mr Hicks advancing his case on the pleadings when paragraph 9 of the statement of claim had been tied in with the allegation of the existence of a joint venture agreement, which had not been pursued. Mr Hicks accepted in his submissions that the joint venture agreement no longer featured in the case, but contended that this was not fatal to the claim for misuse of confidential information. He submitted that the contract claim and the confidence claim were independent of one another in law and that the lack of a binding contract, such as the joint venture agreement, was not fatal to Inline's confidence claim.
48. Mr Hicks submitted that there was no implied consent by Inline beyond the limited use of UCI presenting Inline's drawings to KC for the purpose of the tender. He said that Inline never would have expressly consented, and should not be held to have impliedly consented, to their confidential information being disclosed to and used by a competitor, such as Dexion, either for the purposes of a tender or for the purposes of making modifications to the design of the warehouse subsequent to the tender. by virtue of which Dexion acquired a contract for the installation of the racking in the warehouse following the acceptance of the tender. He submitted that UCI's handing over of Inline's confidential information to Dexion was outside the limits of any licence to be properly implied as a matter of business efficacy or proper conduct of the parties. Inline, he emphasised, never would have consented to that information falling into the hands of trade rivals.
49. My conclusion on this point is this. I agree with Mr Hicks that, as a general proposition, the assertion and proof of a contract is not essential to establish a claim for breach of confidence. So the acceptance by him that there was no contract or joint venture was not necessarily fatal to his confidential information claim based in equity. Regard has to be had to the particular facts of the case. The crucial issue here is what was the scope and extent of any implied licence by Inline to UCI in respect of confidential information in drawing 113. In the absence of any express consent, I agree that the appropriate test is that in implied terms, namely that of business efficacy having regard to all the circumstances of the case.
50. I take the matter in stages adopting that approach. It is accepted by Mr Hicks that Mr Smith knew and intended that UCI would use these drawings made by him for the purposes of UCI's tender to KC. He also knew that there was a deadline date for the submission of the tender. Inline made the drawings, including no. 113, for the purposes of that tender. As I have already noted, they even bear UCI's name. Inline did not make the drawings for the purposes of the joint venture between Inline and UCI for the simple reason that it is now accepted that there was no joint venture. So the drawings must have been made solely for the purposes of UCI to use in the tender. If the tender was accepted it is clear that the drawings made by Inline could be used by UCI and KC in doing the necessary work, either directly by them or by other persons nominated by them in connection with the warehouse. That person did not have to be Inline, if there was no joint venture agreement or other contract requiring the contractual involvement of Inline post tender. In my judgment, it is unlikely to have been the common intention of Inline and UCI that Inline could unilaterally object at any time before the submission of the tender and prevent the tender from proceeding by reason of the fact that another person was involved without their agreement in the preparation of the tender. There was no express or implied agreement that Inline would be the only person involved by UCI in the preparation of the tender.
51. Dexion's involvement must be viewed in the context of Inline's inability or refusal just a few days before the deadline to do the necessary work on finalising the tender for submission. Dexion only became involved for the reason that Inline were unable to do the work and because Dexion had the relevant experience of warehousing and a CAD facility, which UCI did not have. That was necessary to finalise the tender. For these reasons I conclude that, as a matter of business efficacy, it is necessary to imply a licence which it is conceded exists and that that licence extended so as to authorise the use of the information in drawing 113 in the final form of the tender, if necessary involving the use of another third party such as Dexion, chosen by UCI for the purposes of completing that tender. If such a licence were not implied, then UCI could not lawfully submit the tender in time, if Inline stated that they objected to the use of their information in it. It is unlikely, in my view, that it was the common intention of the parties that Inline could unilaterally bring about such a result to the detriment of UCI.
52. In view of those conclusions on the three issues in the case, I would dismiss this appeal.
53. LORD JUSTICE SEDLEY: I agree that this appeal fails but because my reasons are not entirely identical with those of Lord Justice Mummery, I ought to say what they are.
54. Inline may well have been fortunate to secure a finding that six of the elements in their design, though individually unprotected, possessed in aggregate the quality of confidential information. Like Lord Justice Mummery, I donot think we would be justified in departing from that finding. If so, and if Dexion based their design on this group of ideas, as the judge also found and as the witness from Dexion candidly admitted was the case, then it seems to me that use is, without more, established. That Dexion may have varied Inline's ideas cannot logically diminish the judge's finding that they made use of them. If anything, and even if a wholly new design was the outcome, it underscores the fact of use.
55. Of course, this being a claim in equity, trivial or inconsequential use will not suffice. On the judge's clear primary findings this is not such a case. He said:

"The similarity of the general wording and layout, which cannot be accurately reproduced reproduced in this judgment, are consistent with my finding that the UCI drawing was at least indirectly derived from the Inline drawing. But the differing amounts of the various types of racking and number of bays provided illustrate the amount of re-designing which has taken place between the two drawings. This re-designing was, I am satisfied, the work of the UCI team, not based on Inline's work. In my view it is much more significant than the superficial similarities.

My general conclusion is that, having regard to the nature of the changes made, the limited extent to which, on a proper evaluation, there are similarities between the two designs and the (at best) very limited degree of confidentiality attached to those features of the Inline designs which are retained in the UCI drawing, it cannot be said in any realistic sense that UCI has used confidential information belonging to Inline."

56. For the reason I have given I do not think that the premise of this passage is compatible with its conclusion. It is a conclusion which, it seems to me with great respect, is not entirely the same conclusion as Lord Justice Mummery has derived on this limb of the case from the evidence.
57. Because of my view of the answer to the next and final question it is not necessary to address Mr Turner's subtle argument that if the premise were somewhat differently stated the judge's conclusion would become sustainable.
58. The equitable doctrine of confidentiality has produced a number of progeny which by now have their own recognised and discrete identities. Privacy is one recent example. The essence of the equitable cause of action in cases like this can be characterised as the plagiarism of ideas: ideas because some measure of creativity is needed beyond the bare presentation of facts;plagiarism because it involves the unconscionable appropriation of such ideas. In general, it is not unconscionable to use someone else's ideas if they have been handed to you for your own use. Mr Hicks accepts that this proposition would have stifled any claim against UCI had UCI alone made use of Inline's ideas. But he contends that Inline never gave their ideas to UCI in order that Dexion could use them. The judge disagreed. He held that by giving UCI the drawings Inline impliedly authorised UCI to use them for the Kimberley-Clark tender which legitimately included Dexion's work.
59. Although there is an initial attraction in Mr Hicks' rhetorical question whether Inline would ever have agreed to Dexion using their ideas, this is not on analysis the true issue. The issue is whether Inline had put the ideas embodied in their drawing at UCI's disposal for the purposes of the Kimberley-Clark bid. Without doubt they had. This was a speculative enterprise in which Inline, acting without any contract but in expectation of well paid work if UCI's bid was accepted, undertook to put some ideas on paper for the purposes of the bid. Mr Smith's failure or inability to follow through left UCI with no choice but to bring in Dexion. It may be in these circumstances that the judge's use of the language of contract - "impliedly authorised" - is less apt to characterise what happened than the equitable vocabulary of acquiescence.
60. For the reasons explained by Lord Justice Mummery, Inline, by their conduct acquiesced in what UCI in the event did with their drawing. For this reason, if for no other, the claim was rightly dismissed.
61. LORD JUSTICE KENNEDY: I agree with Lord Justice Mummery on the issue of whether or not the information found to be confidential was used. I agree with both my Lords on the other two issues. Consequently, I also agree that the appeal must be dismissed.
Order: Appeal dismissed with the costs of £10,000 to be paid within 21 days and the remainder subject to detailed assessment.