Aviva Insurance Ltd v Oliver

Liability for breach of confidence, inducing breach of contract and unlawful means conspiracy requires proof of the defendant’s relevant knowledge. The issue is determined on the balance of probabilities, having regard to inherent probability, contemporaneous documents and the circumstances as a whole. Serious allegations require careful scrutiny, but no heightened standard of proof applies.

Where several causes of action arise from one series of wrongful acts and one loss, the claimant cannot obtain double recovery or multiple forms of relief for the same loss. Remediation costs may be recovered as compensatory damages where they are reasonably established. An account of profits or negotiating damages will not be awarded on a speculative evidential basis.

The claimant insurer alleged that an employee wrongfully extracted policyholder data from its computer systems and supplied it to the defendant, who resold it to claims management businesses. The claims were advanced in breach of confidence, inducing breach of contract and unlawful means conspiracy.

The defendant denied knowing that the data had been obtained wrongfully. The court also considered the claimant’s abandoned claim under section 13 of the Data Protection Act 1988, evidential issues concerning hearsay and police interviews, and the proper form of relief.

1. Knowledge. The claimant established on the balance of probabilities that the defendant knew the supplier worked for the claimant, accessed its systems at work and obtained the data without authority. The court assessed the evidence by reference to contemporaneous documents, accepted events, inherent likelihood and the defendant’s conduct. The seriousness of the allegation did not alter the applicable standard of proof: Re H [1996] AC 563, as explained in Re B [2008] UKHL 35, [2009] 1 AC 11.
2. Breach of confidence. The data was confidential. The defendant knew that it had been obtained improperly and used it without authorisation. He was therefore subject to an obligation of confidence and breached it.
3. Inducing breach of contract. The employee’s conduct breached her contractual confidentiality obligations and duty of fidelity. The defendant knowingly paid for and requested information obtained in breach of those obligations. Liability followed under the principles in Lumley v Gye (1853) 2 E & B 216, British Motor Trade Association v Salvadori [1949] 1 All E R 208 and OBG v Allan [2007] UKHL 21, [2008] 1 AC 1.
4. Conspiracy. The defendant and the employee combined to use unlawful means directed at injuring the claimant. The elements of unlawful means conspiracy were therefore established.
5. Relief. The different causes of action arose from one series of acts and one loss. The claimant could not recover twice by characterising the wrongdoing in different ways. An account of profits and negotiating damages were inappropriate on the evidence. The claimant was awarded £108,651.59, representing the reasonable costs of its remediation exercise.

First-instance decision. No prior appellate decision is stated in the judgment.