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.

Nevertheless, an unreasonable refusal of consent by the MOD could have been challenged as a matter of public law and the appropriate tribunal for such a challenge would have been the court having jurisdiction to grant judicial review of decisions of the MOD, namely, the administrative court in England. It had the broader object of preventing public controversy which might be damaging to the efficiency of the Special Forces.

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.

As the foregoing discussion has demonstrated, such circumstances can exist in cases where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed, as for example in cases concerned with the breach of a restrictive covenant over land, an intellectual property agreement or a confidentiality agreement.

There is an overlap between DEFRA's objection to disclosure based on the ground of confidentiality and its resistance based on the protection it seeks pursuant to the 'without prejudice' rule, as many of the applicable principles are common to both.

I would add that, even if it was not effective to convey the legal title to the invention, paragraph 3 of the Confidentiality Agreement was plainly effective to transfer the entire beneficial interest in the invention, including the right to file patent applications in respect of it, from Mr Lina to KC Inc. KC Inc would have been entitled to demand that Mr Lina convey the bare legal title to the invention to itself at any time, and to compel Mr Lina to do so if he failed or refused to do it.

In Carter Holt Harvey Forests Ltd v Sunnex Logging Ltd [2001] 3 NZLR 343 a plaintiff (‘Rua’) had issued proceedings against a defendant (‘CHHF’) arising out of the termination of certain contractual arrangements. There was a mediation attended by the parties' lawyers which was subject to a comprehensive confidentiality agreement. The New Zealand Court of Appeal allowed CHHF's appeal, restraining Sunnex from instructing the same solicitors or counsel or anyone from their respective offices.