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How to bring an action for Confidential Information

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Lawdit Solicitors - Expert Author

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How to bring an action for Confidential Information?

Right of action.

A right of action will lie for breach or infringement of confidential information where you can
prove the other party has used confidential information, directly or indirectly obtained from you
and without your consent.

Four requirements may be identified

1.     The claimant must identify clearly the information which is alleged to be confidential.

2.     The information itself must have "the necessary quality of confidence about it"

3.     That the information must have been imparted in circumstances importing an obligation of
confidence and

4.     There must have been an unauthorised use of that information to the detriment of the party
communicating it.

The obligation not to use confidential information or communications may arise independently of
the existence of a contractual relationship between the parties.

The Information.

Whether the information has the necessary quality of confidence about it has to be determined in
all the circumstances. It must not be something which is public property and public knowledge, but
it is perfectly possible to have a confidential document, be it a formula, a plan, or sketch or
something of that kind, which is the result of work done by the maker on materials which may be
available for the use of anybody.

In Fraser v Thames Television [1983] 2 All E.R. 101 it was held that an idea for something yet to
be elaborated may attract legal protection as confidential information. To attract such protection
the information may be simplistic but must have a sufficient degree of certainty, with a
significant degree of originality and the idea must be clearly identifiable.

Is the test objective or subjective?

The test used to determine whether an obligation of confidence has been imposed has both
subjective (whether the parties themselves thought a duty of confidence had been imposed) and
objective (whether the reasonable man thought a duty of confidence had been imposed) elements to
it.

The subjective approach was favoured by Jacob J. in Products (UK) Ltd v Linwood Securities
(Birmingham) Ltd [1996] F.S.R. 424 in circumstances where an equitable obligation of confidence
was identified, as equity looks at the conscience of the individual.

See PCR Ltd v Dow Jones Telerate Ltd [1998] F.S.R. 170 where it was held that an individual who
did not know that the information was confidential could not be held liable for breach of
confidence, as no implied duty of confidence existed in these circumstances). In cases which
consider restrictive covenants of employees, a partly objective approach should be used in
determining which information amounts to trade secrets or highly confidential information.

For further information, please contact Izaz Ali


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.



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Article Published/Sorted/Amended on Scopulus 2007-08-17 18:57:49 in Legal Articles

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