Consultation on change to RIP interception definition

Francis Davey fjmd1a at
Wed Nov 17 09:12:21 GMT 2010

On 17 November 2010 07:58, mark sowerby <bakeryworms at> wrote:
> Hi,
> Would that be a duty derived from the NDA or would it be a common law duty
> that they should infer from knowledge of the NDAs existance?

To inject some legal knowledge on this specific point: equity (that is
a branch of English law) has long recognised an action for "breach of
confidence". If information is give to you which has the quality of
confidence (so is the kind of thing you know you ought to keep
confidential) in circumstances where there was an obligation to keep
it confidential, then you have a duty to keep that confidence. If you
breach it, a claim in equity may be made against you.

This has nothing to do with any contractual relationship.

The main use of an NDA is partly legal (to make it clear that an
obligation of confidence was intended) and partly practical (so that
the signer knows they are supposed to keep it confidential).

This equitable development long pre-dates the common use of NDA's and
has really next to nothing to do with contracts.

A contract can certainly state that any third party has power over
aspects of the contract. Quite a standard thing with arbitration and
similar clauses where the parties to the contract permit a third party
to determine disputes. Many contracts import information or values set
by independent third parties who know nothing of them (eg bank rates).
There's nothing odd about such a situation.

Francis Davey

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