Template:Confi injunctions: Difference between revisions
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==== | ====[[Injunction]]s and equitable {{confiprov|remedies}}: when [[damages]] ain’t enough==== | ||
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>. | 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.” | 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 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. | 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? | |||
Revision as of 09:39, 22 May 2019
Injunctions and equitable remedies: when damages ain’t enough
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: Injunctions, dawn raids, Anton Piller orders and so on. Whatever floats your boat[1].
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 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 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?