What can we help you with today?
PE Limited and another v Dr Alan Tominey and another
Please note: This case has settled extrajudicially and will no longer call in court.
PE Limited and another v Dr Alan Tominey and another
P503/25
Tuesday 25 November 2025
10:30 to 13:00 then 14:00 until conclusion
First Division
[1] The respondents are former employees of the reclaimers. They were employed by the reclaimers as software development engineers. They both had access to a “source code” which is a core asset of the reclaimers’ business. The reclaimers developed this source code, which was commercially successful, and they own the copyright to the code.
[2] The respondents set up a business which sells products that compete with those that the reclaimers sell. A computer code was uploaded to a site named GitHub by the first respondent. GitHub is a website on which people write and share software. The reclaimers state that this code was “functionally identical” to the confidential source code that they developed, and for which they own the copyright. The reclaimers contend that the respondents infringed their copyright and have breached contractual duties of confidentiality by uploading the source code to GitHub. The reclaimers also contend that the respondents’ business will infringe copyright and use information confidential to them in the course of the new business.
[3] On 20 May 2025, the reclaimers sought and obtained an order under section 1 of the Administration of Justice (Scotland) Act 1972 that allowed commissioners to enter the respondents’ residential addresses and to search and take possession of the respondents’ computers, tablets and smartphones. The respondents enrolled a motion to recall the order of 20 May 2025, and a direction that any material recovered should be returned to them and all copies destroyed. The respondents argued that the reclaimers did not disclose eight material factors when they sought the order.
[4] The material factors included: the omission of a dispute between the reclaimers and the first respondent; the fact that the first respondent was candid about the possibility of the reclaimers’ material being on his computer; that the codes were not “functionally identical”; that the comments on the codes on GitHub were not identical; the existence of an academic paper from which both bodies of code may have derived; the existence of publicly available resources as to North Sea data; the nature of the culture of confidentiality within the industry which did not exist; and that a video and material posted by the respondents for their business was not a “facsimile” of the reclaimers’ software as was claimed by the reclaimers.
[5] The Lord Ordinary considered each of the eight alleged non-disclosures. In respect of three of the non-disclosures he concluded that there had been a breach of duty to disclose. The first breach involved the allegations that the reclaimers’ code and the code uploaded to GitHub was “functionally identical”. He considered that the use of the term suggested that the GitHub code was the same as the reclaimers’ code except as regards the language in which they were expressed. Only parts of the code were “functionally identical”. This was not made clear to the court and was considered to be highly material. It was a matter for the court to decide as to whether the evidence was indicative of copying.
[6] The second breach related to the assertion that the comments on the GitHub code were identical to those on the reclaimers’ code. A means by which it could be ascertained if the code was copied was by the comments. In a copied code, comments which are not functional and are not necessary appear in both sets of code. In an affidavit it was accepted that there were differing comments, but that the content and meaning was the same. The Lord Ordinary considered that this was a matter of judgement and required to be disclosed to the court.
[7] Finally, the Lord Ordinary considered that there was a breach of duty in disclosure as the reclaimers did not indicate to the Court that the word “facsimile” was used incorrectly and created an impression that was not correct. The two sets of code were not identical. The court was presented with an immediate and powerful impression that was not rectified.
[8] The Lord Ordinary recalled the order and did not consider it appropriate to consider the order again in light of the new information. The requirement for the party seeking the section 1 order under the 1972 Act is that of an intelligible case. The Lord Ordinary considered that the whole of the case must be considered and what was required in the interest of justice. He did not consider that the reclaimers’ written case supported the recovery of the respondents’ code whether or not it infringed the reclaimers’ copyright.
[9] The reclaimers wish to overturn the Lord Ordinary’s decision on two main grounds. First that the Lord Ordinary erred in his findings of a breach of duty of disclosure for each of the three material factors. Second, that the Lord Ordinary erred in his disposal of the case. The court required to have regard to all of the relevant circumstances. Even if there was non-disclosure, the court did not require to recall the order. The Lord Ordinary declined to consider the new information, and so the circumstances were not considered as a whole.
[10] The respondents contend that the court was entitled to come to the view that it did. The use of the word “facsimile” was misleading to the court in granting an order under section 1 of the 1972 Act. The Lord Ordinary was also entitled to place weight on the use of the word “identical”. The respondent contend that the disposal was within the court’s discretion and so it was not possible to have erred in law. All the relevant factors were considered.
The First Division will hear this appeal on 25 November 2025 at 10:30am.