Paying the price for breach of confidentiality

Paying the price for breach of confidentiality

What did the court decide in CF Partners (UK) LLP v Barclays Bank Plc and can liability arise without a written confidentiality agreement?

Original news

CF Partners (UK) LLP v Barclays Bank Plc [2014] EWHC 3049 (Ch), [2014] All ER (D) 179 (Sep)

The claimant (CFP) had approached the first defendant bank (Barclays), through a company (IVC) intending to obtain financial assistance to pursue a valuable project (Project Arctic Fox). CFP brought a claim for misuse of confidentiality and exclusivity agreements against Barclays and the second defendant company (Tricorona) in respect of the project. The Chancery Division ruled that Barclays and Tricorona had breached obligations of confidentiality by misusing confidential information for the purpose of establishing a strategic partnership between them, but had not breached the exclusivity agreements. Accordingly, CFP was entitled to compensation of €10m.

How did the issue arise?

CFP argued that it had introduced Project Arctic Fox to Barclays, subject to a duty of confidence and subject also to a contractual obligation of exclusivity. It argued that Barclays had then used that information, not to facilitate Project Arctic Fox, but to assist it to develop a strategic partnership with Tricorona, which had resulted in the acquisition of Tricorona by Barclays for its own account.

A confidentiality agreement had been made between IVC and Barclays, which imposed exclusivity obligations. However, it was common ground that those provisions could not be invoked by CFP nor relied on by Barclays. The issue was whether an equitable duty arose. The contractual arrangements did colour the issue—Barclays should be predisposed to accept that information falling within the scope of the definition of confidential information falls to be treated as confidential. The scope and content of equitable obligations are informed, but neither exclusively nor conclusively defined, by a contract, even in the case of a contract between exactly the same parties.

The following points were made regarding Barclays' handling of

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About the author:
Kathy specialises in restructuring and cross-border insolvency. She qualified as a solicitor in 1995 and has since worked for Weil Gotshal & Manges and Freshfields. Kathy has worked on some of the largest restructuring cases in the last decade, including Worldcom, Parmalat, Enron and Eurotunnel.