Template:Confi injunctions

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 - ah - floats your boat.

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.

Contractual damages generally compensate for actual loss, not to account for profits. If you can say you've suffered any loss from, say, disclosure of client lists, it will be consequential in nature, sufficiently speculative that courts are traditionally reluctant to award it, also presenting as it does uncomfortable questions as to causation: Was the reason you lost all that business to a competitor because your client list was disclosed, or because your product was inferior?