How to bring an action for Confidential Information
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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
2. The information itself must have "the necessary quality of confidence
3. That the information must have been imparted in circumstances
importing an obligation of
4. There must have been an unauthorised use of that information to the
detriment of the party
The obligation not to use confidential information or communications may
arise independently of
the existence of a contractual relationship between the parties.
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  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
objective (whether the reasonable man thought a duty of confidence had been
imposed) elements to
The subjective approach was favoured by Jacob J. in Products (UK) Ltd v
(Birmingham) Ltd  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  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
confidence, as no implied duty of confidence existed in these circumstances). In
consider restrictive covenants of employees, a partly objective approach should
be used in
determining which information amounts to trade secrets or highly confidential
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