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| ====[[Injunction]]s and equitable {{confiprov|remedies}}: when [[damages]] ain’t enough====
| | The argument runs that it might be hard to prove that you’ve lost any money as a result of a confidentiality breach, so you want to be sure that [[equitable remedies]] like [[injunction]]s ordering the other guy to keep his mouth shut – those, under English law, that do not technically arise under the law of contract – are available to you. |
| Some people like to acknowledge that the potential consequences of [[breach of confidence]] are so severe that ordinary [[contractual damages]] might not be adequate and [[equitable]] relief might be the only means of protecting your position. Equitable relief is the tasty part of the commercial law: [[injunction|Injunctions]], [[dawn raid]]s, [[Anton Piller]] orders and so on. Whatever floats your boat<ref>See {{Casenote|Anton Piller KG|Manufacturing Processes Limited}}.</ref>.
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| Notionally, this is by way of [[excuse pre-loading]] to gain an acknowledgment so when the poor victim who goes to the [[courts of chancery]] seeking orders for a dawn raid, it can point to M’lud (or at the defendant) and say, “You see, your honour? That rascal knew perfectly well I might need an injunction here.”
| | In theory, this makes sense: one enters a confidentiality agreement to buy another man’s silence, whether or not there are gains or losses to be had from his doing so — but in practice, it is largely nonsense — who ever sought an injunction on a confi? The better question to ask, we think, is ''why'' [[contractual damages]] are often an “inadequate” remedy. Why? Because it is quite hard to prove [[loss]] through simple disclosure of {{confiprov|confidential information}}. And ''why'' is it hard to prove that [[loss]]? Because, often, ''there won’t have been any''. |
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| In practice, it is nonsense — who ever sought an injunction on a confi? — but possibly ''because'' it is nonsense — it isn't really done to argue about it, and if you do, you might raise the suspicion you have nefarious purposes in mind — so the best bet is to let that sleeping dog lie.
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| The other way of looking at it is this: ''why'' are [[contractual damages]] likely to be an “inadequate” remedy? Because it is quite hard to prove [[loss]] through simple disclosure of [[confidential information]]. ''Why'' is it hard to prove [[loss]]? Because, often, there won’t have ''been'' any [[loss]]. Any [[loss]] you might suffer from, say, disclosure of client lists, is likely to be [[Consequential loss|consequential]] in nature, sufficiently speculative that courts are traditionally reluctant to award it, and also presenting uncomfortable questions as to [[causation]]. Was the reason you lost all that business to a competitor becuase your client list was disclosed, or because your product was no good?
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