The usual remedy for breach is the grant of an injunction to prevent unauthorised disclosure by the recipient or to prevent the recipient from unfairly taking advantage of the information, together with damages for any loss arising from the disclosure. There are two basic situations in which obtaining the use of a trade secret is illegal where it is acquired through improper means, or where it involves a breach of confidence. Attention should be paid to the category of loss that is covered, the causative language and the type of conduct that will be captured by the breach. One very early case was Abernethy v Hutchinson,3 where breach of confidence was among. It may be that traditional breach of confidence cases and hybrid claims are properly viewed as grounded in equitable doctrines,41 and that judicial references. the likely loss is too particular to the information provider to be assumed by the recipient) and therefore not recoverable as a matter of ordinary damages for breach of contract. However the Courts of Chancery were ready to decry breaches of confidence. Indemnities are however preferable if the likely loss may be too remote as a matter of contract damages (e.g. For example, if a recipient used confidential information in breach of a confidentiality agreement which caused the information provider to lose the benefit of a third party contract, then that loss may be recovered by way of damages for breach. Common law damages may provide an adequate remedy anyway, because the likely ‘usual’ loss from the wrongful disclosure would be compensated providing causation can be proved. A duty of confidence arises when confidential information comes to the knowledge of a person in circumstances in which it would be unfair if it were disclosed to others. However, exceptions to liability can be negotiated by a recipient entity if its representatives have provided confidentiality undertakings directly to the discloser.Īn information provider should consider whether an indemnity is necessary (and the form of it). Breach of confidence in English law is an equitable doctrine that allows a person to claim a remedy when their confidence has been breached. It is common for a recipient entity to be asked to provide an indemnity for any unauthorised disclosure.

Confidentiality agreements will generally hold the recipient of the confidential information responsible for any breach by its representatives.