Injunction
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The injunction is an equitable remedy that originated in the English courts of equity to provide redress for wrongs for which an award of money damages doesn’t quite scratch the itch. An injunction can be given only when there is "no adequate remedy at law." So, “M’lud I don’t want money. I want him to stop doing what he’s doing, that he promised he wouldn’t.” Obvious examples where this principal is fairly self-evidently so are confidentiality obligations.
injunctions to enforce confidentiality agreements
There common conception, at least among the draughtspeople of confidentiality agreements, that one’s express acknowledgement that one’s contractual obligations are not of the type where damages will be an adequate remedy improve a litigant’s odds of winning an injunction later. It is common see confidentiality agreements do just that.
But — and here’s the snippy bit — in the commercial world, anything of value is meant to be quantifiable in the dollars and sense. Homo economicus’ view might be blinkered, it might be philistine — but it conforms to classic economics theory. So in one sense if the right you feel has been infringed, it can’t have been very valuable.
And so, in most cases where a confidentiality agreement bites, it seems: if (boring example) I give you my confidential shareholding arrangements so you can complete your KYC procedures, or if (racy one) for a fat payoff, you agree a gagging clause to not disclose the terrible things I did to you, and then you go and blab about these things, I might be embarrassed, but I am not likely to suffer pecuniary loss. Even with a customer list, it is likely to be consequential loss (loss of profits) so hard to recover under a normal contract action.
See also
- Remedies in the context of our lovely Confi Anatomy