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Breach of Confidence

June 12, 2012

The law of breach of confidence is designed to protect secret or commercially viable information. In the commercial setting we help clients to prevent their trade and business information being misused.  This may be a former employee steals customer and supplier lists for his new business or confidential internal company documents are taken and offered to a newspaper for publication.

The following remedies are available;

  •   Damages.
  •   Delivery up and destruction of infringing materials.
  •   Account of Profits.
  •   Injunction.

A recent case is that of Levi Roots, otherwise known as Keith Graham who won his High Court battle for breach of contract and breach of confidence as to his Reggae Reggae Sauce.  The Defendant had obtained funding on the “Dragons Den” programme of £50,000 to develop and market his Reggae Reggae Sauce.

He had claimed that the sauce was an old family recipe. The sauce sold half a million bottles in its first three months after launch.  The claim was brought against him by Antony Bailey, who owned a cafe in Brixton, who claimed that sauce was his own.   He claimed that he developed it in Jamaica and then brought the sauce over to the UK, but destroyed any record of its recipe. He then claimed that he had given a cookery demonstration to the Defendant, Mr Graham.

The Claimant claimed an oral agreement that he would share the recipe with the Defendant for a share of the profits. In the alternative, he claimed that he had shared the recipe in a cooking demonstration under circumstances of confidence, and the Defendant had breached that duty of confidence.

The Judge dismissed the Claimant’s claim both for breach of confidence and breach of contract. He said the lack of documentary evidence meant that there was no evidence to support an oral agreement between the parties. He said there wasn’t even any evidence that the Claimant had imparted the recipe to the Defendant.

As to the claim for breach of confidence, the Judge held that there was no evidence that the cooking demonstration had taken place, and in any event, the makeup of the recipe was so imprecise, and so difficult to recreate to a consistent standard, and so it was not sufficiently developed to be capable of, or considered to be confidential information.

The criteria for a breach of confidence claim is that set out by Megarry in J N Coco v A N Clark, in that:

  • The information must have the quality of confidence.
  • It must be imparted in circumstances of confidence; and,
  • There must have been authorised use of it to the detriment of the party.

Businesses should avoid relying on oral contracts, they should also avoid  implied duty of confidences when revealing  information such as in this case ‘secret recipes’, with the intention it remains confidential. This case highlights that information must be sufficiently precise and well-developed in order to benefit from any implied duty of confidence.

When dealing with confidential information, the parties should enter into an   enforceable confidentiality agreement specifically referring to the confidential information they are seeking to protect. The parties should ensure that such an agreement is in place from day one, and it can be tailored to specify the remedies if there is  a breach.

For advice call Carruthers law today or fill in one of our enquiry forms.