Template:Confi injunctions: Difference between revisions

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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>.  


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''.
 
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.
 
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?

Latest revision as of 10:53, 14 October 2020

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 injunctions 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.

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 confidential information. And why is it hard to prove that loss? Because, often, there won’t have been any.

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