Breach of confidence is an equitable wrong even without positive harm (Weiss Technik UK Ltd v Davies)

The High Court took the opportunity to reconcile existing authorities’ vagueness, notably Tchenguiz v Imerman, in finding that a breach of confidence by the taking of confidential information is ipso facto an equitable wrong without the need for a claimant to demonstrate any ‘positive harm’ emanating from the same. The database claim was likewise made out, with the court rejecting the proposition that investment had not been substantial within the meaning of the Copyright and Rights in Database Regulations 1997, SI 1997/3032 by virtue of the fact that the processing of the data was ancillary to its collection. This is a re-statement in domestic law of the Court of Justice’s decision in British Horseracing Board v William Hill, Case C-203/02. The procuration of the breach of a duty of confidence was proved on the evidence, though the court ultimately refused to provide any ruling on the unlawful means conspiracy allegations due to a lack of credible argument.

Weiss Technik UK Ltd and other companies v Davies and others [2022] EWHC 2773 (Ch)

What are the practical implications of this case?

The case, to a large extent, re-confirms what was already known about breach of confidence but with added force. Mr Justice Bacon, at para [123], goes so far as to state expressly that there is no need to prove loss or damage in order to make out an equitable breach of confidence claim. With reliance on the decision in Tchenguiz, it was held that the intention of the tortfeasor in copying confidential material was sufficient to found a claim, this protection of a right without loss.

It is strongly arguable that the dicta in the instant case goes beyond AG v Observer [1990] 1 AC 109 (Spycatcher) and Tchenguiz. In the former, Lord Keith held that disclosure of confidential information to persons, ‘whom [the confider] would prefer not to know of it’ without any additional or further detriment was sufficient to found a claim; in the instant case, Bacon J arguably went further in holding that the mere copying of the confidential information, ‘….for the purposes of a competing business….is sufficient to establish a breach of confidence as an equitable claim’ going on to emphasise that, ‘….it is not necessary to show that the defendants have specifically used the material in their business’.

This could be said to beg the question, where the person to whom the information is disclosed is a corporate rather than natural person, ‘Where is the disclosure at all?’ and has the mere obtaining and retention of the information now become actionable per se? Conversely, this could be said to have been a pedestrian finding in line with existing authority, such as the Spycatcher case, which vests its force in the public interest in confidences being respected ipso facto.

Case details

• Court: Chancery Division
• Judge: Mr Justice Bacon
• Date of judgment: 8 November 2022

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