Breach of Confidence: When Trusted Information Is Disclosed

When someone discloses information that was shared in trust — whether by a friend, employee, doctor, or business partner — the law of breach of confidence provides a remedy. This equitable cause of action predates the modern law of privacy and remains an important tool for protecting confidential information. This guide explains how breach of confidence claims work in the UK.

The Three Requirements

The classic test for breach of confidence was established in Coco v AN Clark (Engineers) Ltd [1969]. The claimant must prove:

1. The information has the necessary quality of confidence — it must not be publicly available or trivial. Information in the public domain generally cannot be confidential, although the way information is compiled or presented may itself be confidential.
2. The information was imparted in circumstances importing an obligation of confidence — this can arise from an express agreement (e.g., a confidentiality clause), an implied agreement (e.g., a doctor-patient relationship), or the circumstances themselves (e.g., information clearly marked as confidential).
3. There was an unauthorised use or disclosure of the information — the defendant used or disclosed the information without the consent of the confider, to their detriment.

Common Situations

Breach of confidence claims arise in many contexts:

• Employment — former employees disclosing trade secrets, client lists, or proprietary processes to competitors
• Medical — doctors or healthcare workers sharing patient information without consent
• Legal — solicitors or barristers breaching legal professional privilege
• Personal relationships — partners or ex-partners sharing intimate details, photographs, or correspondence
• Business — joint venture partners or consultants leaking commercial information
• Media — journalists obtaining confidential information through deception or from confidential sources within organisations

Breach of Confidence vs Misuse of Private Information

While historically intertwined, these are now distinct causes of action:

• Breach of confidence requires a pre-existing relationship of confidence. Misuse of private information does not — it protects private information regardless of how it was obtained.
• Breach of confidence traditionally required a detriment to the claimant, though modern cases have relaxed this requirement
• Breach of confidence covers commercial and trade secret information as well as personal information; MPI is focused on personal privacy

The Public Interest Defence

There is a public interest defence to breach of confidence: a defendant may argue that disclosure was justified because it revealed iniquity — wrongdoing, illegality, or a danger to the public. The defence was famously considered in Lion Laboratories v Evans [1985], where employees disclosed concerns about the accuracy of breathalyser equipment.

However, the public interest defence has limits. The disclosure must be proportionate, directed to the appropriate person or authority, and genuinely motivated by public interest rather than personal gain.

Remedies

• Injunction — to prevent further disclosure. This is often the most valuable remedy and can be obtained urgently.
• Damages — compensation for financial loss caused by the disclosure, and in personal cases, for distress
• Account of profits — the defendant may be required to hand over any profits made from exploiting the confidential information
• Delivery up — an order requiring the defendant to return or destroy copies of the confidential information
• Springboard injunction — in commercial cases, an order preventing the defendant from exploiting the unfair advantage gained from the breach for a specified period

Limitation Period

Breach of confidence claims are subject to a 6-year limitation period under the Limitation Act 1980, running from the date of the breach. This is significantly longer than the 1-year period for defamation claims.

Related Reading

Privacy Claims Hub | Misuse of Private Information | Privacy Injunctions