“A number of the provisions of the Directive, in particular the provisions in Chapter II and Articles 6, 7 and 16, have been implemented in the United Kingdom by the principles of common law and equity relating to breach of confidence in confidential information, and by statute and court rules.”
“[111] The law implies into a contract of employment an undertaking by the employee to carry out the employment with fidelity and good faith. It is long established that this duty of fidelity includes an obligation on the employee to use information which is confidential to the employer solely for the purposes of the employment relationship and not for any other purpose: see Merryweather v Moore[1892] 2 Ch 518 , 524 and Robb v Green[1895] 2 QB 315 , 317, 318-319, 320.”
“We would wish to leave open, however, for further examination on some other occasion the question whether additional protection should be afforded to an employer where the former employee is not seeking to earn his living by making use of the body of skill, knowledge and experience which he has acquired in the course of his career, but is merely selling to a third party information which he acquired in confidence in the course of his former employment.”
“Particularly in a modern economy, the law has to maintain a realistic and fair balance between (i) effectively protecting trade secrets (and other intellectual property rights) and (ii) not unreasonably inhibiting competition in the market place. The importance to the economic prosperity of the country of research and development in the commercial world is self-evident, and the protection of intellectual property, including trade secrets, is one of the vital contributions of the law to that end. On the other hand, the law should not discourage former employees from benefiting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers.”
“The value of the card index to Mr. Ellis and the other defendants was that it contained a ready and finite compilation of the name and addresses of those who had brought or might bring business to the plaintiffs and who might bring business to them. Most of the cards carried the name or names of particular individuals to be contacted. While I recognise that it would have been possible for Mr. Ellis to contact some, perhaps many, of the people concerned without using the card index, I am far from convinced that he would have been able to contact anywhere near all of those whom he did contact between February and April 1985. Having made deliberate and unlawful use of the plaintiffs’ property, he cannot complain if he finds that the eye of the law is unable to distinguish between those whom, had he so chosen, he could have contacted lawfully and those whom he could not. In my judgment it is of the highest importance that the principle of Robb v. Green which, let it be said, is one of no more than fair and honourable dealing, should be steadfastly maintained.”
“The one point of disagreement on the law concerned a contention by the plaintiff to the effect that once it is shown that the defendants had stolen documents containing confidential information, and that they had used those documents in soliciting orders, there arises an irrebuttable presumption that any business resulting from the orders derives from the wrongful use of the confidential information and the defendants are liable in damages accordingly. The court will not inquire at all into whether the defendants knew the name of the particular customer or contact anyway. I am not able to accept a proposition expressed in such comprehensive and rigid terms. In assessing and awarding damages here the object of the law is to award fair compensation to a plaintiff, for the wrong done to him by a defendant's misuse of his confidential information. Whether particular business obtained by a defendant was obtained as a result of misuse by him of a plaintiff's confidential information is essentially a question of fact in each case. In seeking to answer that question, the court will inquire into the facts and surrounding circumstances as much in this case as in any other. In doing so, of course, a court will not take leave of commonsense. It will view with considerable circumspection, even scepticism, a contention by a defendant, who has chosen to use a list, that he already carried some of the information in his own head and that looking at the list for any particular name or names was quite superfluous and unnecessary. Moreover, any doubts and obscurities arising from the evidence are likely to be resolved against the defendant. So that, in practice, such a defendant will have a difficult row to hoe. But such an approach by the court is far removed from saying that in no circumstances will the court look further once user of the list is proved. That would be altogether too sweeping, and it could easily result in a plaintiff being awarded more than fair compensation for the loss suffered by him from the misuse of his confidential information. I do not understand Nourse L.J. to have said otherwise in Roger Bullivant Ltd. v. Ellis [1987] I.C.R. 464 at 475, when he observed that, having made deliberate and unlawful use of the plaintiff's property, a defendant cannot complain if he finds that the eye of the law is unable to distinguish between the potential customers whom, had he so chosen, he could have contacted lawfully and those whom he could not.”
“In that case, the plaintiffs instructed the defendant to make tools for the manufacture of leather punches in accordance with drawings which the plaintiffs provided to the defendant for this purpose. The defendant used the drawings to make tools, and the tools to make leather punches, on their own account. The finished product (i.e. the leather punches) were readily available to buy in the shops; and the defendants could have bought one and reverse engineered it. But they did not. Lord Greene M.R. said at p.215: ‘What the defendants did in this case was to dispense in certain material respects with the necessity of going through the process which had been gone through in compiling these drawings, and thereby to save themselves a great deal of labour and calculation and careful draughtsmanship. No doubt, if they had taken the finished article, namely, the leather punch, which they might have bought in a shop, and given it to an expert draughtsman, that draughtsman could have produced the necessary drawings for the manufacture of machine tools required for making that particular finished article. In at any rate a very material respect they saved themselves that trouble by obtaining the necessary information either from the original drawings or from the tools made in accordance with them. That, in my opinion, was a breach of confidence.’” ‘What the defendants did in this case was to dispense in certain material respects with the necessity of going through the process which had been gone through in compiling these drawings, and thereby to save themselves a great deal of labour and calculation and careful draughtsmanship. No doubt, if they had taken the finished article, namely, the leather punch, which they might have bought in a shop, and given it to an expert draughtsman, that draughtsman could have produced the necessary drawings for the manufacture of machine tools required for making that particular finished article. In at any rate a very material respect they saved themselves that trouble by obtaining the necessary information either from the original drawings or from the tools made in accordance with them. That, in my opinion, was a breach of confidence.’”
“When the information is mixed, being partly public and partly private, then the recipient must take special care to use only the material which is in the public domain. He should go to the public source and get it: or, at any rate, not be in a better position than if he had gone to the public source. He should not get a start over others by using the information which he received in confidence. At any rate, he should not get a start without paying for it. It may not be a case for injunction or even for an account, but only for damages, depending on the worth of the confidential information to him in saving him time and trouble.”
“[22] … [A]n action in breach of confidence is based ultimately on conscience. As Megarry J said in Coco v A N Clark (Engineers) Ltd[1969] RPC 41 , 46, ‘the equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust.’ [23] The classic case of breach of confidence involves the claimant's confidential information, such as a trade secret, being used inconsistently with its confidential nature by a defendant, who received it in circumstances where she had agreed, or ought to have appreciated, that it was confidential: see eg per Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2)[1990] 1 AC 109 , 281. Thus, in order for the conscience of the recipient to be affected, she must have agreed, or must know, that the information is confidential. 41. [25] Liability for breach of confidence is not, of course, limited to such classic cases. Thus, depending on the other facts of the case, a defendant who learns of a trade secret in circumstances where she reasonably does not appreciate that it is confidential, may none the less be liable to respect its confidentiality from the moment she is told, or otherwise appreciates, that it is in fact confidential. From that moment, it can be said that her conscience is affected in a way which should be recognised by equity.”
“[222] In the first sentence Lord Neuberger is plainly applying Lord Goff's statement of principle and stating an objective test, consistently with Campbell v MGN and Imerman v Tschenguiz. Although the second sentence, if read in isolation, might be thought to indicate that the test is subjective, Lord Neuberger cannot have intended to contradict what he had said in the first sentence. Nor can he have intended to depart from Campbell v MGN and Imerman v Tschenguiz, which, although they were not cited in Vestergaard, he would obviously have been familiar with. I would add that Lord Neuberger went on at [39] to say that an injunction to restrain misuse of confidential information against a recipient of confidential information ‘might well be justified, once it could be shown that she appreciated, or, perhaps, ought to have appreciated, that [the information was] confidential’. Again, this seems to recognise that the test is objective, albeit with what I consider to be surprising hesitation.”
“… the law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential.”
“It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable duty of confidence.”
“53. In the further alternative, it formed part of the contractual relationship between TCL and each of the Former Employees that each of the Former Employees should acquire data, put that data into TCL’s systems, and utilise that data for the benefit of TCL’s business. In acquiring that data, providing it and utilising it, each of the Former Employees was acting as agent for TCL and accordingly the knowledge of each of the Former Employees as to how that data was obtained is attributable to TCL for the purposes of paragraph 21 above.”
“Trailfinders is not presently aware of the full extent of the Former Employees’ acts of breach of confidence and reserves the right to give further particulars following disclosure and/or evidence in this action or its own further investigations.”
“25A. Prior to the commencement of his franchise arrangement with TCL, Mr La Gette compiled a list of contacts and certain information about those contacts to be uploaded in due course to his database within TCL's system (‘the List’). The contacts in the List included friends, family members, former school and university friends, social and business contacts of Mr La Gette, as well as certain clients that Mr La Gette had dealt with during the course of his employment at Trailfinders. 25B. Mr La Gette compiled the List using information from a range of sources including: (i) [his] own knowledge and skill; (ii) his personal accounts and devices; (iii) other third parties (including friends and family members); and (iv) other publicly available sources (such as his contacts’ personal or business websites, LinkedIn and 192.com). 25C. For the sake of expedience, Mr La Gette took the details of a small number of the clients on the List from Trailfinders’ Superfacts system, albeit he could have obtained that information from the sources set out in the paragraph above. The confidentiality of that information is denied, as set out at paragraph 7 above. Mr La Gette cannot now recall precisely which, and how many, of the contacts in the List that applied to. He estimates the number to be between 5 and 8. 25D. On14 October 2016 Mr La Gette sent the List to TCL. This was to enable the information in the List to be input into Mr La Gette's database within TCL's system. That database was to be used by Mr La Gette once he began working as a franchisee of TCL. It was not, so far as Mr La Gette was aware, to be used by anyone else at TCL in the ordinary course of business. The intention was that Mr La Gette would use the contact information to contact certain of the individuals in the List with a view to obtaining business from them.”
“Thanks for sending this over. It looks largely fine, and fantastic that you have so many contacts!”
“No – because we don’t need to. It’s amazing how quickly word gets around when a Travel Counsellor arrives on the scene! Everyone wants a VIP service – and when it comes to travel, they’ll get it from you. You’ll love the challenge of cultivating your customer base. Keeping existing customers warm and introducing yourself to new ones. If you’re coming from a travel background already, feel free to bring your old customer contact list along with you. We’ll add them to your Contact Centre ready for your first day – a great start to a rewarding career running your own travel business.”
“The cases analysed in the immediately preceding paragraphs should be noted with a view to abstracting from them, if it is possible, the essence of being an employee. To distil it to a single sentence I would say that an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss.”