Businesses and individuals seek to maintain confidentiality. But what happens when this is breached by others?

We work closely with clients to help them protect their confidential rights.  James Staton, head of our dispute resolution team, examines one case involving the royal family that highlights the issue and although things aren’t as straightforward as you might assume, help is at hand.

Everyone will have seen that HRH the Duchess of Sussex has won a summary judgment application in her action against the publishers of the Mail on Sunday.  The paper had published extracts from a handwritten letter to her father. In his judgment the judge said, “It was, in short, a personal and private letter.  The majority of what was published was about the claimant’s own behaviour, her feelings of anguish about her father’s behaviour…..These are inherently private and personal matters.  [She] had a reasonable expectation that the contents of the letter would remain private.”

Unfortunately, most people wanting to maintain confidentiality are not royal duchesses but business people working in a commercial world and seeking to protect not their personal feelings of anguish (although with the pandemic and its effect on the economy they may have those) but the trade secrets and information of their businesses.  They would find it very hard to pursue a case on the same basis as the Duchess.  Whilst there is a common law duty of confidence which might be of assistance it is far from certain that it would protect everything that a prudent businessman would wish.

Much better then to ensure that employees are subject to properly drafted contracts of employment that require them to maintain the confidentiality of the business’s information and trade secrets, its customer lists and pricing structures.  Properly drafted a contract can protect all that information from disclosure and provide the grounds for taking action in the event of breach.

Likewise, if the business is dealing with another, perhaps in discussing the possibility of a joint venture, a properly drafted non-disclosure agreement can be used to protect confidential information that is shared with the other party.

If you want more information about contracts of employment and how they can protect confidential information speak to Simon Shepherd in our employment team, or if it is a non-disclosure agreement that you need, call Karen Crutchley of the commercial team.