HERMES BOS Sdn Bhd

On the court record

Illustrates the interlocutory intensity of trade-secrets and employment litigation within a corporate group, from notices to produce to a contested mediated consent judgment.

Hermes Bos Sdn Bhd appears in the reported judgments as one of a set of related technology companies litigating together against former personnel and competing entities, with matters in the High Court (Mahkamah Tinggi) and the Court of Appeal (Mahkamah Rayuan). Named within a corporate group led by a listed technology company, it features on the plaintiff and applicant side of a substantial trade-secrets and employment dispute, as well as in the procedural contests that dispute produced.

The core of the litigation, as framed on appeal, concerned copyright infringement, breach of confidence, misuse of confidential information and trade secrets, breach of employment contracts and the duties of fidelity, fiduciary duty and trust, conspiracy and dishonest assistance, unlawful interference with trade, and conversion. That constellation of claims is characteristic of disputes in which a group alleges that departing employees have taken proprietary material to a rival, and it places the company among the plaintiffs seeking to protect the group's confidential business assets.

The procedural decisions show the dispute being fought at close quarters. One matter concerned a notice to produce documents, where the court considered whether it had jurisdiction to set the notice aside, whether the notice was an abuse of process, and whether it sought to circumvent the completed discovery process and a document-classification framework, under sections 65 and 66 of the Evidence Act 1950 and Orders 34 and 92 of the Rules of Court 2012. Another arose from a mediation before a judicial commissioner in which broad settlement terms were recorded but the parties could not agree on a draft consent judgment; after reviewing the audio-video recording of the mediation, the court decided which version had been agreed, and the losing side then sought to set the resulting consent judgment aside on grounds distinct from the usual fraud or mistake. Together the decisions illustrate the interlocutory intensity of modern trade-secrets litigation within a corporate group.