Glynnis Hawe

The parties entered into a contract in 1999 for the provision of market pricing data.

The appellant, a custodial bank, redistributed the data to its numerous affiliates without authorization.

The respondent discovered the breach in 2016 and sued.

The trial judge found the appellant breached the contract and awarded damages based on a rateable approach, but also awarded damages for sharing data with a specific affiliate.

On appeal, the Court of Appeal upheld the liability finding, concluding the contract only authorized the appellant itself to access the data.

The Court also upheld the trial judge's decision to change his unentered judgment and rejected the appellant's limitations defence.

On damages, the Court struck the award relating to the specific affiliate as double compensation but otherwise upheld the damages assessment, including an adverse inference drawn against the appellant for spoliation of evidence.

During a trial of an issue on damages arising from an application, the applicant objected to numerous pieces of viva voce evidence introduced by the respondents.

The court had previously directed that the damages trial proceed on the closed record as it existed when the application was initially argued.

The court applied a bright-line test, ruling that any evidence not actually found in the underlying application record was inadmissible to prevent trial by ambush.

The court sustained the majority of the applicant's objections, rejecting the respondents' arguments that the new evidence was merely a permissible amplification of the existing record or a necessary response to the applicant's expert.