Breach of Confidence

Breach of Confidence Claims

The information that your business holds, and has developed over many years, will be one of its most valuable assets. If confidentiality is lost, the damage to a business may be immeasurable and irreparable.

We have considerable experience of resolving cases involving breach of confidence. At JMW, we act quickly to secure the best practical, legal and commercial solution to the problem.

To speak to a solicitor about a matter involving breach of confidence, contact JMW today by calling 0345 872 6666, or by filling in our online enquiry form to request a call back.

How Can JMW Help to Protect Your Business’s Most Valuable Assets?

Our Media and Reputation Management team can assist your business to protect its confidential information. We can assist with the following:

• Preparing a non-disclosure agreement or confidentiality provisions within an agreement where you may be looking to enter into a commercial partnership with a third party
• Advising on appropriate restrictions and post-termination restrictions in contracts of employment where employees may access confidential information

We also have considerable experience assisting businesses where their confidential information is at risk of being stolen or misused. We have experience assisting clients with the following:

• A former employee taking customer and supplier databases upon leaving and seeking to use that information as a springboard for their new business venture
• Confidential business documents ‘disappearing’ and subsequently offered to the media for publication
• Company A entering into a non-disclosure agreement (NDA) with Company B to explore Company B developing a prototype for a patent. The partnership breaks down and Company B tries to utilise the information gained during the partnership to develop a very similar patent

Confidential Information and Trade Secrets

Trade secrets and confidential information provide an owner with a commercial and economic advantage over competitors. Confidential information can be protected under the common law framework, or by statute under the Trade Secret (Enforcement, etc.) Regulations 2018. Under both regimes, the loss of confidentiality risks the information losing its protection.

Almost any information can fall to the definition of confidential information, if meeting a three stage test. That test is that the information must:

1. Have the necessary quality of confidence
2. Be imparted in circumstances that give rise to an obligation of confidence
3. Not have been used or disclosed to cause detriment to the owner without authorisation

A trade secret is a form of intangible intellectual property that covers formulas, plans, programs, designs, devices and methods. It is a ‘trade secret’ because it is secret, there is a commercial value in that information remaining secret, and the owner has taken reasonable steps to keep it secret.

Is Breach of Confidence a Crime?

Most breaches of confidence are handled as a civil claim; however, depending on the circumstances of your case, criminal charges may be a consideration.

What Remedies are Available for Misuse of Confidential Information?

It is essential to respond very quickly to threatened breaches of confidence, as once ‘the genie is out of the bottle’, damages may prove to be an inadequate remedy. More often than not, you will be required to seek urgent interim injunctive relief.

The court may also award you damages or an account of profit, a permanent injunction and payment of your legal costs.

Information that is confidential may also fall to other intellectual property rights, including being protected by copyright or a patent. We work closely with our colleagues in the Intellectual Property team to advise you on the options available.