A v B

On an application for summary judgment in a breach of confidence claim, the claimant must show that the defendant has no real prospect of successfully defending the claim and that there is no other compelling reason for a trial. A common law breach of confidence claim ordinarily requires confidential information, circumstances importing an obligation of confidence, and unauthorised use causing detriment; a real risk of misuse is sufficient. Contractual and common law duties of confidence may survive termination of employment. The prospect of employment litigation does not justify retaining or misusing confidential material; relevant documents must be obtained through litigation disclosure processes.

The claimant, a clearing bank, alleged that the defendant, formerly employed as a finance manager, breached contractual and common law duties of confidence by forwarding an email containing confidential customer and payment information, with three attachments, to his personal email account shortly after his employment was terminated.

The claimant applied for summary judgment under CPR Part 24. The defendant disputed that the attachments had been sent and relied on matters including the circumstances of his dismissal, alleged password protection, and the prospect that the material would be relevant to future employment litigation. The court also considered evidence filed in support of the defendant’s separate strike-out and jurisdiction application.

1. The application for summary judgment was granted. The defendant had no real prospect of successfully defending the claim and there was no other compelling reason for a trial.
2. The contractual terms imposed continuing obligations not to use or disclose confidential information. The duty was not discharged by the alleged circumstances of termination. The common law duty of confidence likewise survived termination.
3. The information in the three attachments, comprising customer details, payment information and service-user data, was confidential. The defendant accepted that proposition in argument. The evidence showed that the email was delivered to his personal account with three attachments. The automated security alert, system log and testing evidence materially supported that conclusion.
4. The court applied the principles in Coco v A.N. Clark (Engineers) Limited [1968] F.S.R. 415. The information had the necessary quality of confidence, it was imparted in circumstances importing an obligation of confidence, and forwarding it to a personal account was unauthorised use. A real risk of misuse was sufficient for the third element.
5. The defendant’s contention that retaining the material was justified by anticipated employment litigation had no real prospect of success. Applying Brandeaux Advisers (UK) Ltd and others v Chadwick [2010] EWHC 3241 (QB), the prospect of litigation against an employer did not justify breach of confidence. Relevant documents had to be obtained through disclosure procedures.
6. The court did not conduct a mini-trial, but was not required to accept the defendant’s assertions without analysis. Summary judgment was therefore entered for the claimant.