What Is Misuse of Confidential Information?
Misuse of confidential information is a basic legal principle that a person who has received information in confidence cannot take unfair advantage of it and cannot use the confidential information without obtaining the consent of the person who passed on the information.
To be protected by the law of confidential information, the information must be confidential in nature and disclosed in circumstances importing an obligation of confidence.
Disputes can often arise in respect of whether the nature of the information was actually confidential. Whilst it may be obvious in some cases, such as in the case of a secret formula, in other instances, the information may be similar to that already in the public domain.
Misuse of Confidential Information FAQs
What is Confidential Information?
Confidential information is defined as information that meets the following criteria:
- Confidential in Nature: The information must not be public knowledge or widely available.
- Disclosed in Confidence: The circumstances of disclosure must clearly imply an obligation of confidence
When does an obligation of confidentiality arise?
If an obligation of confidentiality arises, our solicitors are here to help you. An obligation to keep information confidential can be imposed by:
- A contract;
- Implied because of the circumstances of the disclosure; or
- Implied because of the special relationship between the parties concerned e.g. employee/employer or solicitor/client.
The best way to protect confidential information is to enter into a stand-alone confidentiality agreement before the confidential information is disclosed.
Our Intellectual Property team can advise on the drafting and implementation of such confidentiality agreements.
How long does confidential information remain confidential?
Confidential information can be protected for as long as it remains confidential which, in theory, could be forever. However, there are a number of restrictions to this:
- Information which becomes out of date, and which ceases to have any commercial value;
- Confidentiality agreements which are time-limited;
- Time-limited restrictive covenants in an employee’s employment contract; and
- Technical information provided to public authorities for securing regulatory approval are typically time limited.
Where a document is read by the Court, or referred to at a public hearing, confidentiality in the information covered in that document will immediately be lost.
Examples of confidential materials which may be protected:
- Formulas not capable of analysis in the final product;
- Recipes which are not apparent from the final product;
- Processes;
- Business methods (until they are used in public);
- Financial and statistical information;
- Customer lists;
- Plans, sketches and drawings;
- Improvements to products or processes;
- New inventions whilst a patent application is pending;
- Business plans;
- Computer programs; and
- Discoveries, scientific theories or mathematical methods.
What remedies do I have if my confidential information has been misused?
The remedies available for an action in misuse of confidential information are account of profits, inquiry as to damages, injunctions and/or delivery up and destruction.
The usual measure of damages is that the defendant should compensate the claimant for the loss which the defendant has caused to the claimant.
In some circumstances, however, the damages payable can be calculated by reference to the fee the parties would have agreed would be payable by the defendant for the use of the confidential information in a hypothetical bargain.
The Courts have shown a willingness to issue and continue injunctions in certain instances, particularly where a disclosing party uncovers the recipient’s intention to use the confidential information before the breach of confidentiality takes place. However, injunctions are of little or no use once the information has been disclosed or used.
Our Approach to Misuse of Confidential Information
Misuse of confidential information claims can be extremely technical and complicated andare therefore managed by specialist Courts in England and Wales.
At Myerson, we will provide you with high-quality legal advice and support if you are either bringing or defending a misuse of confidential information claim.
Given the sensitive nature of confidential information cases, we will always explore all potential legal solutions.
The suitable remedies will depend on the individual circumstances of your matter; however, you will be advised as to the most effective solutions available to you.
Our Experience with Misuse of Confidential Information
Advising on confidential information pursuant to criminal proceedings shared publicly.
We acted for a client whose identity was protected in respect of criminal proceedings during his childhood.
We successfully defended the case for our client by preparing cease-and-desist letters to an American website and various private individuals, demanding that they cease sharing our client’s personal information.
As a result, we obtained a successful result, and the confidential information was removed.
Advising on Exit and Intellectual Property Rights
We advised a client on his exit from the in-house software development division of Balfour Beatty. Our client had, as part of his employment, worked on a software mapping tool which was used by Balfour Beatty internally for projects but which was not marketed externally to third parties.
Our client wanted to try and agree terms with Balfour Beatty to take a licence or enter into a joint venture in order to market the software externally.
We helped negotiate the client’s termination of employment, advised our client on his rights in relation to the intellectual property, identified the nature of his intellectual property and proposed potential structures for our client to have an ongoing relationship with Balfour Beatty.
Later, we advised our client in relation to court proceedings brought by Balfour Beatty for an injunction, damages and the destruction of the software.
Balfour Beatty alleged that our client was in breach of contract, in breach of confidence and had infringed copyright. Balfour Beatty withdrew its claim against our client at an early stage and we recovered our client’s costs.
Enforcement of Restrictive Covenants and Protection of Confidential Information Following Employee Departure
Client’s confidential information was taken by an ex-employee, information included client lists, billing reports and profitability.
The ex-employee took the information and went to work for a competitor business, which was also a breach of his restrictive covenants in his employment agreement.
We wrote to the ex-employee and secured undertakings on terms that provided for the return of confidential information, a witness statement confirming each and every use, and disclosure of the information.
Misappropriation of Proprietary Accounting Software by Former Director
The client received, on an unsolicited basis, a business plan prepared by another firm of accountants.
The client identified certain markers in the plan which could only have been produced by the client’s bespoke accounting software. The other firm is owned by the client’s ex-employee and director.
Therefore, we have written to the ex-employee, asserting that he has taken our client’s software when he left his employment and has used it to produce business plans.
We are requiring the employee and his firm to provide undertakings to cease and desist and to provide an account of profits.
Why Choose Our Intellectual Property Solicitors?
- Our intellectual property experts advise clients on a broad range of intellectual property matters, from initial registration and exploitation to protection and enforcement.
- Our specialist IP litigation team is also highly experienced in handling business disputes involving intellectual property.
- Myerson is a member of the Intellectual Property Lawyers Association (IPLA), an association of law firms with an established intellectual property office. Our membership provides our clients and us with access to a wealth of knowledge and expertise in intellectual property.
- Through our many years of service, we have close working relationships with trade mark and patent attorneys and regularly liaise with them on a wide range of intellectual property issues, such as registering trademarks, patents and design rights, and when disputes arise concerning intellectual property rights. These working relationships are a key element of the service we offer to our clients.
- Myerson is also the Manchester and Cheshire law firm member for the MSI Global Alliance, a top 20 ranked international association of independent professional firms. As the IP matters we deal with often involve an international element, we can call upon the expertise and knowledge of our fellow MSI members to ensure that our client's global interests are protected.
Testimonials
Julie L
Richard and Olivia were great to work with from start to finish. They took time to understand our industry, and how we worked as a company. This, mixed with their professional knowledge, allowed the process to be seamless, and produce specific documents for our business. I would highly recommend the team, and I am pleased that I have built this relationship so that if any services are required going forward, I will be able to contact them knowing I will receive a high level of service.
Nick
We had an outstanding experience with Myerson Solicitors. From start to finish, the team was professional, efficient, and approachable. Our solicitor, Olivia Whittaker, was particularly remarkable - her attention to detail, clear communication, and expert guidance made the entire process smooth and worry-free. We couldn’t be happier with the outcome and highly recommend Olivia and the firm to any business seeking expert commercial legal advice.
Richard
We needed to rewrite our online terms and conditions to ensure compliance with all legal aspects. Olivia and Richard were outstanding in their advice and assistance. They guided us through every step of the process, providing valuable insight and expertise. Their professionalism and clear communication made a complex task manageable, and we couldn't be happier with the service they provided.
Andrew
I engaged Richard Meehan, Myerson Solicitors, for the drafting of a complex multi-product exclusive supply agreement. He was thorough, explained in plain English and kept me updated consistently throughout. In addition, his after service communications were excellent, ensuring that we felt supported in our negotiations. Great service, before, during and after, which is the benchmark that I have come to expect from all my dealings with Myerson Solicitors. A great team.
Adrian
Richard and the team at Myerson were excellent. They guided me through a relatively complex legal situation and weren't afraid to admit when they needed to bring in other divisors to offer the best guidance which I appreciated. It was all done efficiently and for a fair price. A great experience.
Mo
I recently worked with Richard to draft an international supply agreement, and I couldn't be happier with the service I received. He was highly knowledgeable, easy to work with, and always responded promptly to any questions I had. I felt well-supported from start to finish and would highly recommend Richard to anyone looking for a reliable and experienced solicitor for commercial contracts.
Ben
Exceptional service, Richard and his colleagues were professional and personable not like other law firms we have worked with in the past. It was clear from the outset that Myerson were very down to earth and willing to put in the work to help us achieve our goals. They were a delight to work with on our contract negotiations. I would highly recommend them.
Aceplan Player Development Ltd
I worked with Richard Meehan and Olivia Whittaker, who helped me to build a comprehensive set of legal documents for my software business. This included terms and conditions for the different user types, privacy and cookie policies, and general website terms. Their legal knowledge and what was required for my business was very impressive. It left me feeling reassured and confident in the work they prepared. All the deadlines were met and I'm really satisfied with the end product.
Torram Ltd
I couldn't recommend Myerson Solicitors highly enough. Richard and Olivia were fantastic to work with, they were extremely professional and knowledgeable and knew how to get the best out of my contract. They were very responsive and ready to answer all of my questions whenever I asked them. They are a safe pair of hands for anyone starting out in business and don't have any personal recommendations for solicitors. They're very capable and very pleasant to work with and compared to other companies, fairly priced.
Peter
Myerson deserves more than 5 stars. I am exceptionally pleased with the work done by Richard M at Myerson who worked on the Terms for my startup. Incredible depth of knowledge and amazing turnaround time. Highly recommended!
Matt
As a start-up company, we needed specific advice, work and contracts drafting on key contracts. (Customer and Supplier) along with specific website and cookie policies. Myerson's completed this work on time and to a high standard. Importantly, they advised on which areas to focus on to spend time and money - very important for a start up. Every member of the team was very capable and if they did hand over, the person handover to was always fully briefed and up to speed with our account and work. Highly recommended.
Jason
We needed a flexible VAR agreement for our AI based software offering that could be easily adapted to a wide variety of partnerships, engagement models and go-to-market strategies. The Commercial team did a great job making sense of our sometimes confused and over-complicated requirements, and simplified it down to exactly what we needed. Soon after we successfully used the agreement with a large multi-national corporation. All in all a great result and a great experience.
Joe
Very pleased with the service received in updating T&Cs and other legal documents. Excellent communication and useful discussions, getting to understand our business and its requirements.
Emad Salib
The team were highly responsive, clear in their advice, and demonstrated a strong commercial understanding of our business and the sector we operate in. They provided practical, well-structured guidance and were proactive in highlighting potential risks while offering sensible solutions. It was a pleasure working with them, and we would not hesitate to recommend Myerson.
Steve Ridd
Rich Meehan at Myerson provided clear, pragmatic and highly effective support on a range of complex commercial matters. His advice was responsive, commercially focused and instrumental in helping us manage risk while progressing key initiatives. Richard worked collaboratively with the executive team, translating legal complexity into practical guidance, and I would have no hesitation in recommending him and Myerson for trusted commercial legal support.
Meet Our Intellectual Property Solicitors
Home-grown or recruited from national, regional or City firms. Our intellectual property lawyers are experts in their fields and respected by their peers.
Contact Our Experts
You can contact our lawyers below if you have any more questions or want more information:
0161 941 4000
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