Confidentiality Agreement in UK Law

Mr Jones states that he became increasingly aware of the importance to CMP of the control of the client relationship and that CMP was vulnerable to being cut out of that relationship by Ricoh, especially as CMP's business was not spread between a range of suppliers. Mr Jones therefore agreed with Mr Marcus I'Anson, Ricoh's then sales director, that their companies should enter into a formal confidentiality agreement.

Hence in the present case, applying the established measure of damages, analysis of the loss caused by breach of the obligation under the Confidentiality Agreement that Ricoh would not use the “Confidential Information” for its own purposes can be approached only on the basis of considering what use has been made by Ricoh of the protected information; and then asking what would have happened as regards CMP's business if it had not been so used (i.e. the counter-factual).

It is usually enough to rely upon the recognition by a solicitor of the duty not to make any ulterior use of information obtained by disclosure. Adex International was correctly decided, but it is a rare example of a situation where a solicitor was precluded from acting for a different claimant against the same defendant in respect of a similar claim as a result of confidential information obtained about the defendant in the earlier proceedings.

We consider that it is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement – contrast the observations of Walker LJ in London Regional Transport v The Mayor of London [2001] EWCA Civ 1491 at paragraph 46 with those of Lord Donaldson of Lymington MR in Attorney General v Barker [1990] 3 All ER 257 at p.260.

It is to be noted that neither the New Zealand courts nor their Lordships were invited to consider whether the MOD had acted unlawfully in refusing consent to publication. The whole basis of R's case has been a challenge to the validity of the contract and not to the way it has been performed. It had the broader object of preventing public controversy which might be damaging to the efficiency of the Special Forces.

In my judgment, it is no answer to say, as Mr Bloch did when the point was put to him, that it is not the practice for employers to contract for express covenants to prevent employees going to work for their customers. It seems that CLS was sufficiently concerned to protect its confidential information to require the respondent to enter into the confidentiality agreement, and it presumably designed that agreement to provide it with appropriate protection.

For these reasons, the test to be applied when considering whether it is necessary to restrict freedom of expression in order to prevent disclosure of information received in confidence is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached.