Roadget Business Pte Ltd & Anor v Whaleco UK Limited

Lord Justice Zacaroli:

1. This is an application for permission to appeal an order requiring disclosure of documents into an “outer”, as opposed to an “inner”, confidentiality ring. I am very grateful to counsel on both sides for their clear, balanced and concise submissions.

2. The appellants (“Shein”) are entities in the Shein group, which operates a global business selling fashion products online. The respondent (“Temu” or “Whaleco”) is an entity in the Temu group, which operates the Temu marketplace. Shein and Temu are close competitors.

3. On 7 August 2023 Shein commenced a claim against Temu for breach of copyright. Temu filed a counterclaim in early 2024 alleging that Shein had breached the prohibitions under Chapter I and/or Chapter II of the Competition Act 1998 .

4. One of the issues in the counterclaim relates to documents which Shein required approximately 450 of its most valuable suppliers to sign called “supplier attestations”, by which they agreed not to breach Shein’s intellectual property rights.

5. One of the applications made at a case management hearing before the Competition Appeal Tribunal (Andrew Lykiardopoulos KC) on 17 December 2025 was by Temu for disclosure of the list of approximately 450 suppliers who signed supplier attestations.

6. The Tribunal ordered disclosure of that list. Shein does not appeal the order for disclosure per se , but contends that disclosure should be confined to the inner confidentiality ring.

7. The confidentiality regime was established pursuant to an order of Bacon J dated 5 November 2024. At that stage, there was a single tier of confidentiality. By the order of Bacon J dated 29 July 2025, two tiers of confidentiality were established: an inner and outer ring.

8. The inner ring is confined to external advisers to Shein and Temu. This applies to various categories of information the nature of which means that it is “inappropriate to share with employees of a receiving party”, including “commercial information, the disclosure of which could significantly harm the legitimate business interests of the person(s) or undertaking(s) to which it relates.”

9. The outer ring includes a small number of in-house lawyers as well. Under the confidentiality order, it applies where “it is necessary for the purpose of the fair conduct of the proceedings for an individual employed by a Receiving Party to have access to the information in their capacity as an in-house lawyer for the Receiving Party with responsibility for managing these proceedings.”

10. The Tribunal’s decision and reasoning on this point are recorded in the transcript of the proceedings, at which various other questions were determined. It was understandably shortly stated. In ordering disclosure, the Tribunal gave the following main reason: “The names are relevant to make sense of the supplier attestations. I struggle to see what, without the names, [Temu] could do with the attestation notices at all. I have seen one and I cannot see what can be done with it if one does not have the names.”

11. The judge gave as his reason for permitting disclosure into the outer ring that the people in the inner ring would not be able to undertake the sort of interrogation of the Temu website that was needed.

12. Shein seeks permission to appeal on two grounds. (1) Ground one: the judge’s decision was contrary to the very purpose of the inner ring, which was to protect the parties’ most sensitive and confidential information and was – to the extent necessary, therefore irrational. (2) Ground two: the decision was not supported by any, or any adequate, reasons.

13. As Ms Demetriou KC acknowledged, an appeal from a case management decision involving the exercise of a discretion faces a high hurdle. An appeal court will interfere if there has been an error of law, a failure to take into account relevant factors or a taking into account of irrelevant factors, or where the decision was otherwise plainly wrong in the sense of being outside the generous ambit where reasonable decision-makers may disagree: see, for example, GLAS SAS (London Branch) v European Topsoho SARL (practice note) [2025] EWCA Civ 933 ; [2025] 1 WLR 5343 , per Falk LJ at §20.

14. The starting point is the principle of open justice. In Oneplus Technology v Mitsubishi [2020] EWCA Civ 1562 at §39, Floyd LJ drew together a non-exhaustive list of points of importance. These include: (1) The court must balance the interests of the receiving party in having the fullest possible access to relevant documents against the interests of the disclosing party in the preservation of their confidential information; (2) An arrangement under which no officer or employee of a party gains access to disclosed documents is exceptionally rare, so that restricting disclosure to external eyes only at any stage is exceptional; (3) Where disclosure is limited to external eyes, the onus remains on the disclosing party throughout to justify that designation for the relevant documents; (4) Difficulties of policing are relevant, as is the role the documents are expected to play and the structure and organisation of the receiving party.

15. In this case, pursuant to earlier orders of Bacon J, disclosure in the outer ring is restricted to (1) lawyers only; (2) who are legally qualified other than in the People’s Republic of China; (3) who are subject to professional regulation by a recognised national legal authority; (4) who are employed in an in-house role that is separate from the commercial functions of Shein or Whaleco or any of their affiliates; and (5) who have signed an undertaking committing them to extensive confidentiality protections.

16. Where the balance is to be struck in any individual case is quintessentially for the judge, as noted above.

17. Ms Demetriou placed emphasis on the way in which this issue arose and was dealt with at the hearing below. Specifically, she pointed out that in Temu’s counsel’s skeleton argument for the hearing on 17 December 2025, it had been said that the list of approximately 450 suppliers would only be disclosed to the inner confidentiality ring, and that this was only corrected in Mr Holmes KC’s submissions at the hearing. That means, she submitted, that Shein was deprived of the opportunity of addressing the point in evidence and submissions. She referred to the fact that, under the confidentiality order, it is for the disclosing party to designate into which tier the information is intended to be placed, and that there is a procedure for the receiving party to raise objections, and for the Tribunal to resolve any disputes arising.

18. In view of the importance placed on this point, it is necessary to refer to the history of the application in more detail.

19. Temu relied on a witness statement of one of the in-house lawyers within the outer ring, Mr Ji, which had been served previously (in October 2025). This dealt with a number of matters. At §20 to §22 Mr Ji explained what Temu proposed to do in terms of disclosure of data which demonstrated the effects of the allegedly infringing conduct. Another aspect of the allegedly infringing behaviour was the service of “takedown notices” by Shein. Temu proposed to analyse average daily product listings on its platform of a proportionate sample of the (several thousand) sellers affected by takedown notices, to gauge the effect of those notices. It proposed to do the same in respect of sellers known to have been the subject of interview by Shein. As to this, Mr Ji said: “however, this process is complicated by the Claimants’ designation of the names of the suppliers that attended interviews in November and December 2023 as Outer Confidentiality Ring Information”. At §22, Mr Ji referred to the importance of receiving the list of approximately 450 suppliers who had signed supplier attestations, “and assessing the impact and effect of Shein’s conduct towards these suppliers on their sales on Temu’s UK platform.”

20. In a request for information, in a letter from Temu’s solicitors dated 17 November 2025, reference was made to the information being disclosed into the outer ring. In the application to the Tribunal (for the list of approximately 450 suppliers), in Temu’s solicitors’ letter dated 2 December 2025, it was again said that disclosure of the information sought would be into the outer ring. It was required so that Temu could identify and speak with individuals within Temu that had been involved with the relevant suppliers, identify where documents relating to these suppliers may be held, and obtain and review documents.

21. Shein served evidence in relation to the application, consisting of Mr Democratis’ thirteenth witness statement dated 9 December 2025. Shein opposed disclosure altogether. No mention was made as to the appropriate tier into which disclosure would be made, if ordered. Specifically, no issue was taken with the suggestion in the request or application letter to disclosure being to the outer ring.

22. Skeleton arguments were exchanged on 12 December 2025. There was nothing in Shein’s skeleton argument which addressed the appropriate tier of confidentiality, if disclosure was to be ordered. In Temu’s skeleton, having stated (at §33) that it was necessary to have disclosure of these documents now so that “Whaleco, and its experts” could analyse the data, it was then said (at §35) that “for the avoidance of doubt”, the information would be disclosed only to Temu’s external legal and economic advisors “who are in the appropriate confidentiality ring”.

23. In his opening submissions at the hearing below, Mr Holmes KC made it clear that Temu was seeking disclosure into the outer ring. At the start of Ms Demetriou’s submissions, the Tribunal asked whether the concerns about confidentiality were met by the confidentiality order, specifically the outer ring. Ms Demetriou submitted in response that if disclosure was to be made then only the inner ring would suffice, whose existence was precisely to protect very, very commercially confidential information like the list of Shein’s approximately 450 most valuable suppliers. She referred to Mr Holmes’ skeleton, which asserted that the inner ring was sufficient, in contrast to his submissions that day, in which he said that disclosure should be to the outer ring, and said: “we don’t understand the basis on which he says that the outer ring is necessary, when [in his skeleton] he’s very clearly saying that Whaleco’s external legal and economic advisers could conduct the analysis envisaged in [Mr Ji’s statement]”. She objected to disclosure into the outer ring of the names of the approximately 450 suppliers in question, as these were the “crown jewels”.

24. In his reply submissions, Mr Holmes apologised for the error in the skeleton argument and said: “in order to interrogate the systems, we do need the internal lawyers at Temu, who are members of the confidentiality ring, to be able to deal with this material. It would severely hamper if not prevent us from undertaking the necessary analysis if they were not within the ring.”

25. In giving an extempore ruling on this issue, the Tribunal said the following: “As regards confidentiality, in Temu’s skeleton argument, it was suggested that the names could be given an “Inner Ring” confidentiality protection (i.e. effectively external counsel and experts). Today, Mr Holmes KC admitted that that is an error in his skeleton argument. It seems to me that this is correct. When one looks at the underlying evidence that I have referred to from Mr Ji, it is clear that the people within the “Inner Ring” will not be able to undertake the sort of interrogation of the Temu website needed. I agree that confidentiality should be preserved and direct that the names should be disclosed on the basis of “Outer Ring” confidentiality, pursuant to paragraph 3.2 of the Confidentiality Order. As regards protection for Shein, the whole point of the “Outer Ring” of confidentiality is to protect confidential information with it only being given (outside external counsel and experts) to certain named individuals at the respective clients who themselves have a legal background. Shein has suggested in its evidence that Temu has breached confidentiality in the past, but this evidence does not relate to any breach of the Confidentiality Order (this understanding was later confirmed by Ms Demetriou). In the circumstances of the present application, and having regard to the use that needs to be made of the disclosed names, it seems to me that “Outer Ring” confidentiality is the only practical option.”

26. Shein’s skeleton, served in support of the application for permission to appeal, and Ms Demetriou’s opening oral submissions on the application, suggested to me that the real complaint might be one of procedural fairness, on the basis that the error in Mr Holmes’ skeleton had prejudiced Shein because it was unable to lead evidence on the question of the perceived need (or lack of it) to disclose the list of suppliers within the outer ring, and because it was taken by surprise and could not address it in submissions.

27. That, however, is not one of Shein’s grounds of appeal. As Mr Holmes submitted, in light of the more detailed history that I have described above, it would be very difficult to contend that there was any procedural unfairness. Temu’s skeleton argument was served after all the evidence for the hearing had been filed, and simultaneously with Shein’s skeleton. In circumstances where Shein bore the burden of establishing that disclosure should be to external eyes only, and Temu’s position was until that point clear and consistent in that disclosure should be to the outer ring, any evidence or submissions from Shein on the point should already have been filed before they had sight of Temu’s skeleton.

28. Against that background, I turn to the grounds of appeal. Ground 1

29. In Shein’s skeleton argument, the only basis on which it is contended that the judge was wrong – and if necessary irrational – to decide that disclosure should be made to the outer ring, was as follows: the very purpose of the inner confidentiality ring is to protect the most commercially sensitive documents and information; disclosure of such information to the outer ring would undermine the two-tier ring that has been created; it is difficult to imagine a more commercially sensitive piece of information than the list of top suppliers to hand to a competitor; the information is equivalent to the “crown jewels” of Shein’s business; and it certainly met the “exceptional” threshold for disclosure to external eyes only.

30. I accept that the purpose of the inner ring is as described. But this submission fails to meet the point that the provisions relating to the inner ring cannot be read in isolation, but must be read in conjunction with the provisions relating to the outer ring. Ms Demetriou fairly accepted at the hearing that the purposes of each are not mutually exclusive and that what is required in any case is a balancing exercise. The judge carried out that balancing exercise, concluding in favour of the outer ring because although the information was clearly confidential, the fair conduct of the proceedings required the information to be seen by those in-house lawyers within the outer ring. This ground of appeal – as formulated, and as developed in the skeleton argument – fails to address the balancing exercise carried out by the judge and provides no basis for interfering with it, in accordance with the applicable test (see above). Ground 2

31. As Falk LJ explained in the GLAS case (above) at §21, the extent of reasons required in any given case will vary depending on the context. An extempore judgment (see §32) in the course of a case management hearing where many issues are determined need not be a polished product like a reserved judgment. I would add that the extent of the reasons required will vary depending on the depth and extent of the arguments presented by the parties.

32. I have set out above the entirety of the arguments presented to the judge, and his reasons, so far as the choice between the inner and outer ring was concerned. The only substantive submission made to him in favour of the inner ring was that the information was very, very confidential and clearly fell within the purpose of the inner ring. On the other hand, Temu submitted that it would be very difficult for Temu to carry out the necessary analysis of its website without its internal lawyers having access to the list of suppliers, so that the purpose of the outer ring was engaged.

33. The judge preferred the latter approach, because he considered that it would indeed be difficult for Temu to conduct the sort of interrogation of its website that would be necessary without in-house lawyers having access to the information. That was based in part on the nature of the interrogation of the information which Mr Ji explained in his evidence would be required.

34. In my judgment, particularly when viewed in the light of the limited submissions made to the judge on the point, the parties could have been left in no doubt as to the basis of the Tribunal’s decision (that being the core requirement: see GLAS at §21). I do not think it is arguable with a real prospect of success that the judge failed to provide adequate reasons.

35. I am accordingly satisfied that there is no real prospect of success in respect of either of the grounds of appeal as formulated and developed in Shein’s skeleton.

36. During the course of the oral hearing for permission to appeal, it became apparent that Shein’s real objection was that the Tribunal’s conclusion was irrational because there was no evidential basis for the conclusion.

37. That, in my view, would be a fundamentally different ground for appealing the Tribunal’s decision, and not one which is advanced within the existing grounds of appeal. No application has been made to amend the grounds of appeal to accommodate it. In any event, I do not think it is arguable with a real prospect of success. I accept that there is no direct statement in Mr Ji’s evidence to the effect that an in-house lawyer could, whereas an external lawyer could not, easily carry out the kind of interrogation of Temu’s website that would be needed. That, however, was not the basis of the judge’s reasoning. He accepted the proposition that was clearly made to him by Mr Holmes that, having regard to the nature of the interrogation that needed to be carried out, as described in Mr Ji’s evidence, it was something that would be difficult to do without the participation of someone in-house. That was an evaluative judgment, based on the evidence of Mr Ji as to what would in fact need to be done. I do not think it can be argued, with a real prospect of success, that it lacked any evidential foundation. It was certainly not suggested to the Tribunal, in response to the submission made by Mr Holmes, that there was no evidence to support it. Accordingly, even if this had been properly formulated as a ground of appeal, I would not have granted permission to appeal in respect of it.

38. For the above reasons, I refuse permission to appeal.