All good questions. As presently advised:

 

Is it arguable that the public interest defence that applies to freestanding breach of confidence doesn’t apply to a contractual claim for breach of a non-disclosure agreement? If it does, does it mean that some contractual duties are subject to defences that other contractual duties are not?

I think those points are “up for grabs”. One theory is that unless a term permitting disclosure can be implied or the obligation is itself so bad as to be contrary to public policy, it is not a defence to a breach of an express agreement not to disclose that it is in the public interest to disclose. I guess one would handle it at the level of defining the duty (for preference), rather than as a defence.

 

Does the “public interest” defence cover any disclosure, such as to a national newspaper for purposes of that newspaper’s anti-vax campaign when the same information has already been disclosed to a public inquiry?

 

No. That’s clear on the authorities. The defence depends on disclosure to the “right person” in principle. But complicated by Article 10, because “public interest” and “freedom of speech” get muddled together, so a newspaper’s anti-vax campaign might have quite a strong claim.

 

Does “public interest” apply to all remedies (injunctions, damages) including any possibility of accounting for profits?

 

Also an interesting question. In confidentiality as such, conceived as a defence to liability, it presumably does. In contract, one could clearly apply it to a claim for an injunction *even if* it didn’t apply to damages (and some authorities do indeed treat it in a way that mixes it up with injunctive factors, including everyone’s favourite “clean hands”, Denning was particularly keen on this when dealing with scientologists). Article 10 also in play here. Accounting for profits: the trend in the Engllish cases is to regard that as a “discretionary” remedy. Personally, I have trouble with that, but that swims against the tide.

 

Paul

 

Barrister regulated by the Bar Standards Board.

 

PS states

“But open question whether defences which would certainly apply to equitable duty of confidence (eg public interest) do apply to contractual agreements)”

 

Is it arguable that the public interest defence that applies to freestanding breach of confidence doesn’t apply to a contractual claim for breach of a non-disclosure agreement? If it does, does it mean that some contractual duties are subject to defences that other contractual duties are not?

 

Does the “public interest” defence cover any disclosure, such as to a national newspaper for purposes of that newspaper’s anti-vax campaign when the same information has already been disclosed to a public inquiry?

 

Does “public interest” apply to all remedies (injunctions, damages) including any possibility of accounting for profits?

 

(I notice with interest that the full title of the CA’s decision was Faccenda Chicken v Fowler).