- I would like to thank Professor Gareth Jones of Trinity College, Cambridge for his comments on an earlier draft of this article and Ms B Fehlberg for supplying me with some of the Australian materials cited herein.
- Lord Goff & G Jones The Law of Restitution (1986) 3rd Ed, 161.
- Kennedy v De Trafford [1987] AC 180; Jones v Bouffier (1911) 12 CLR 579 [HC of Aust]
- Marr v Arabco Traders Ltd [1987] 1 NZLC 102, 372 (HC of New Zealand: non-partnership joint venture); United Dominions Corporation Ltd v Brian Pty Ltd (1985) 60 ALR 741 (HC of Australia: suggests it can apply to joint ventures): Amadio v Ingle 216 F 2d 22 (US 6th Cir) (1954); C H Codding & Sons v Armour & Co 404 F 2d 1, 7 (10th Cir CA) (1968) (USA).
- Matchett v Blue Gold Drilling et al (1991) 78 Alta LR 246 [Alta QB]
- Great Northern Petroleums Mines Ltd v Merland Explorations Ltd (1983) 43 AR 128 [Alta QB] aff (1985) 36 Alta LR (2d) 97 (Alta CA); Bank of Nova Scotia v Societe General (Canada) (1988) WWR 232 (Alta CA). Also where there is no formal JOA the operator has been considered a fiduciary by virtue of his conducting the joint operation: Sturrock v Ancona Petroleum Ltd(1991) 111 AR 87, 103–3 (Alta QB).
- Petrocorp Ltd v The Minister of Energy [1991] 1 NZLR 1, 36 per Cooke P overruled on appeal but not on this point: [1991] NZLR. 641 (PC).
- The promoter analogy was used in Hill v Rose [1990] VR 129 [SC of Vic] to require full disclosure where the purchase was of a one third share in a business conducted through the medium of a trust. See discussion on pre-contractual fiduciary duties infra.
- In a corporate joint venture it was assumed, without deciding, that the relationship was fiduciary with a corresponding duty of disclosure between the coventurers: Uphoff v International Energy Trading Ltd The Times 4 Feb 1989.
- R J MacAlister “An Appraisal of the Operator/Non-operator Relationship Under North Sea Joint Operating Agreements” [1985–6] 4 OGLTR 97, 100.
- For example because he considered it to relate to matters outside the geographic scope of the venture.
- P D Finn “Fiduciary Obligations of Operators and Co-venturers in Natural Resources Joint Ventures” [1984] AMPLAY 160, 164–5.
- Ie the duty of good faith between partners: Perens v Johnson (1857) 3 Sm & Giff 419: 107 RR 139; Everingham v Everingham (1911) 12 SR (NSW) 5 [NSW Supreme Court], This fiduciary relationship is hereinafter referred to as the “collaborative fiduciary relationship” in order to distinguish it from other forms of fiduciary relationship.
- Law v Law [1905] I Ch 140. This view can lead to the argument that the duty of full disclosure may have another basis eg the right of management. Even in the event of breakdown in the partnership, the former trust which enabled the other partner to gather the information can still be seen as the basis of the duty.
- However, where a partner repudiates the partnership agreement the duty of full disclosure ceases: M'Lure v Ripley (1850) 2 Mac & G 274; A Akman & Son (Fla) Inc v Chipman (1988) 45 DLR (4th) 481.
- (1826) 1 Sim 89; 27 RR 167. The partnership analogy has considered “overwhelming” by Finn in relation to co-venturer's purchases of interests and disclosure: P D Finn “Good Faith, Unconscionability and Fiduciary Duties” in Energy Law ′90: Changing Markets—The Legal Consequences (1990) 103, 130.
- The remedies suggested by Uphoff v International Energy Trading Ltd The Times 4 February 1989 are rescission and account of profits [Hely-Hutchinson v Brayhead Ltd [1969] [QB 549] but not damages [La Banque Financiere de la Cite SA v Westgate Insurance Co Ltd [1988] 2 L1 Rep 513 aff on other grounds [1990] 2 All ER 947 (HL)].
- G Spencer Bower The Law relating to Actionable Non-Disclosure (1990), 1967 2nd Ed by A K Turner and R J Sutton.
- Material facts are those that would affect the value of the assets or partnership share. Thus disclosure of an agreement between two partners that only one would bid at public auction of the partnership assets would have to be made to the other partner: Everingham v Everingham (1911) 12 SR (NSW) 5, 7 [NSW Supreme Court]
- M G P Taylor (et al) The Joint Operating Agreement (1989), C1 6,7 & 6,8, 102–3.
- Taylor, C1 14.2.7, 118 (although the information is expressed to remain the property of the sole risk party).
- It has been suggested that if the basis of a sole risk development changes this is a material fact and ought to be disclosed so that the others may decide whether to participate: J A McLean “The 1990 CAPL Operating Procedure: An Overview of the Revisions” (1991) 30 Alta LR 133, 165.
- Eg if the sole risk development discovered a reserve that went beyond the sole risk's geographic area or if the sole risk development may drain other existing wells.
- Law v Law [1905] 1 Ch 140, 158; Turner v Bayle y (1864) 4 De GJ & S 332 (partnership cases). Section 28 of the Partnership Act 1890 is the statutory embodiment of the common law duty of full disclosure between partners and would not apply to non-partnership joint ventures. But, Law v Law was argued, and decided, on the basis of the duty to disclose material facts without references to Section 28 as it is general duty which would apply to co-venturers as well. In a partnership such disclosure as accepted by the waiving party would be sufficient for the purpose of the general law and the Partnership Act 1890.
- Pine Pass Oil & Gas Ltd v Pacific Petroleums Ltd (1968) 70 DLR (2d) 196; Acts Oils Ltd v Pacific Petroleums Ltd (1976) 60 DLR (3rd) 658 [Alta SC]; Frankfurt Oil Co v Snakared 279 F 2d 436, 443–4 (10th Cir CA) (1960); Tenneco Oil Co v Bogert 630 F Supp 961, 967–8 (Okla Dist Crt) (1986). In other contexts such a clause limiting a pre-existing right may be considered an exclusion clause: Law Commission Consultation Paper No 124 “Fiduciary Duties and Regulatory Rules” (1992) Para 3.3.2, 76.
- R I Ackroyd A Guide to Contracting, Negotiating and the Law (1978) 73, Sweet & Maxwell London UK.
- It does not prevent actions for misrepresentation as a remedy for inducement to enter a partnership: Adam v Newbigging (1888) 13 App Cas 308.
- Ravinder Rohini Pty Ltd v Krizair (1991) 30 FC R 300 (Fed Crt of Australia FC).
- Cf Spencer Bower, 197.
- The statement appears in the 16th Ed (1990), 412 and in earlier editions.
- (1828) 1 R & M 150. Also relied on are New Brunswick Railway v Muggeridge (1860) 1 Dr & Sm 363 and Central Railway of Venezuela v Kisch (1867) LR 2 HL 99.
- (1828) 1 R & M 132.
- Higgins and Fletcher the Law of Partnership in Australia and New Zealand 4th Ed (1981) 50.
- (1828) 1 R & M 150.
- (1829) 1 R & M 132.
- Gibbs CJ in United Dominions Corporation Ltd v Brian Pty Ltd (1984) 60 ALR 741, 743 [HC OF Australia]
- [1932] AC 161, 227.
- (1985) 60 ALR 741, 743.
- Mason, Deane and Brennan JJ. See too Ravinder Rohini Pty Ltd v Krizair (1991) 30 FCR 300 (FC of Australia Full C).
- (1985) 60 ALR 741, 747.
- (1985) 60 ALR 741 per Mason, Deane and Brennan JJ 748 and per Dawson J at 751.
- But what is the mutual trust? If UDC only has to provide finance what is SPC or Brian's trust in UDC? Merely that in providing the finance it will act for the joint benefit.
- (1985) 60 ALR 741 per Mason, Deane and Brennan J 748. Williams J in the Queensland Supreme Court in Fraser Edmiston Pty Ltd v AGT (Old) Pty Ltd (1988) 2 QdR 1 [SC of Queensland] applied Brian to a case where the parties had only agreed in principle that they should form a partnership. One party gave the other information about a proposed lease “relying on the good faith and trust which normally exists between partners or persons contemplating entering into partnership”: (1988) 2 QdR 1, 9. The other then took the lease in his nominees’ name. This was a breach of a fiduciary duty ie they “took advantage of a position which they had only attained through the trust reposed in them”: (1988) 2 QdR 1, 10. However, Williams J considered that even without the support of Brian's case a fiduciary relationship existed because of the mutual trust and confidence that existed between the parties: (1988) 2 QdR 1,11. Thus where a joint venture involves mutual trust and confidence between the co- venturers the duty can exist.
- (1989) 61 DLR (4th) 14 [SC of Canada]
- See infra for a discussion of this case.
- (1988) 2 QdR 1 [SC of Queensland).
- (1989) 61 DLR (4th) 14, 43. At the Appeal Court level it was considered that a fiduciary relationship arose but need not do so in all joint ventures: International Corona Limited v LAC Minerals Limited (1988) 44 DLR (4th) 639–40.
- He further held that no distinction should be made between negotiations for partnership or joint venture.
- (1989) 61 DLR (4th) 14, 47.
- However this could also be achieved by a duty of confidence with a constructive trust as a remedy for breach, which he considered overlapped with the fiduciary duty.
- (1989) 61 DLR (4th) 14, 47: see too Ridgewood Resources Ltd v Henuset (1981) 29 AR 240, 243 [Alta QB]
- (1989) 61 DLR (4th) 14, 60–69, esp 69. The fact that a remedy, the law of confidence, already existed mitigated against a fiduciary relationship existing in his view cf Ballard v Claude Drilling Co 88 v 2d 1021 (Kans SC) pre-contractual duty of confidence is also fiduciary duty.
- P D Finn “Fiduciary Obligations of Operators and Co-venturers in Natural Resources Joint Ventures” [1984] AMPLAY 160, 162.
- Indeed in Coco v A N Clark (Engineers) [1969] RPC 41, 48 Megarry J considered that where information was given on a business-like basis for common object, such as a joint venture, there is likely to be a duty of confidence.
- The approach in Pacific Coal Pty Ltd v Idemitsu Queensland Pty Ltd Unrep SC of Queensland (discussed infra) indicates that if the collaborative fiduciary relationship applies it may supplement a contractual duty of confidentiality.
- Morison v Moat (1851) 9 Hare 241, 255.
- Exchange Telegraph Co Ltd v Gregory [1896] 1 QB 147, 153 (property basis) cf Exchange Telegraph Co Ltd v Central News Ltd [1897] 2 Ch 48, 53 (contract basis). Various commentators adhere to the view that confidential information is a species of property: eg S Ricketson “Confidential Information A New Property Interest? Pt 1” (1977) 11 MULR 223: J C Shepherd The Law of Fiduciaries Ch 23, 326. But while the analogy with property is useful, especially in determining the appropriate remedy, it ought not to be taken too far.
- Saltman Engineering Co (1948) 65 RPC 203; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414, 438 per Deane J.
- At this stage of the development of the duty it is unwise to be categorical.
- Seager v Copydex Ltd [1967] 2 All ER 415, 417 per Lord Denning: G Jones “Restitution of Benefits Obtained in Breach of Another's Confidence” (1970) 86 LQR 46 cf Lord Goff's broad definition (which he considered to be non-exhaustive) in Attorney-General v Guardian Newspapers Ltd (No 2) [1988] 3 WLR 778.
- If it protects a proprietary interest the duty's consequences will be more extensive: D E Fisher “From Secrecy to Plagiarism” (1968) 6 UQLJ 60, 61. One reason that the duty of confidence may not be not considered a fiduciary duty is that third parties may be impressed with a duty of confidence. However, this can be considered analogous to third parties in fiduciary law that have a constructive trust impressed upon them: D Klinck “Things of Confidence”: Loyalty, Secrecy and Fiduciary Obligation” [1990] Sask LR 73, 82. Thus where a third party had the requisite knowledge that information in his possession was subject to a prior duty of confidence or where he was assisting in a breach of confidence without receipt of the information the third party would be liable.
- D Klinck “The Rise of the ‘Remedial’ Fiduciary Relationship: A Comment on International Corona Ltd v Lac Minerals Ltd” (1988) 33 McGill LJ 600, 608 and La Forest J in LAC Minerals (1989) 61 DLR (4th) 14, 36.
- P D Finn “Fiduciary Obligations of Operators and Co-venturers in Natural Resources Joint Ventures” [1984] AMPLAY 160, 163.
- Coco v A N Clark Ltd [1969] RPC 41. It may be that this formulation of the duty will only apply where the “the parties have assumed [it] in their negotiations”: G Jones “Breach of Confidence—After Spycatcher” (1989) CLP 49, 50. Thus it acts as a part of the contractual setting of the relationship. Otherwise the formulation is the tail (remedy) is wagging the dog: Finn Fiduciary Obligations (1977) 160. This formulation of the duty can be seen as a contractual modification ie because both parties intend that there be no use without payment (implied contract) then this formulation is a contractual modification of an otherwise fiduciary duty. However, if this formulation is not so explained then it indicates the duty of confidence may not be fiduciary in nature.
- Seager v Copydex Ltd (No 2) [1969] RPC 250.
- In Pacific Coal Pty Ltd v Idemitsu Queensland Ply Ltd, Unrep SC of Queensland 21 February 1992 some co-venturers used information produced for a joint venture for their own benefit. The duty of confidentiality was not discussed and the Seager approach was not adopted but the courts order ultimately gave compensation for the cost of producing the information. Ryan J held that while information was not property the reports and other documents that contained the information were property which belonged to the joint venture, being owned as tenants in common by the co-venturers: at p 187. Those co-venturers who intended to use such information were restrained by injunction from using such information until the using co- venturers paid the non-using co-venturers their share of the cost of producing the information.
- Fisher, 74 relying on Exchange Telegraph Co Ltd v Central News Ltd [1897] AC 48 and Lord Greene MRs comments that in Saltman the maker had to “use his brain” to develop the information.
- F E Ferguson “Confidentiality Agreements in the Mining Industry” (1989) 35 RMMLI 7–1: F Erisman & J D McCarthy “Obligation Not to Use Confidential Information Disclosed During Unsuccessful Negotiations to Acquire Interests in Mineral Properties: Observations on Corona v Lac” (1987) 33 RMMLI 23–1. Prior to the litigation in LAC Minerals such agreements were uncommon in the mining industry (at least in Canada as the decision itself indicates) but by 1988 it appears such agreements became common: R W Bentham and W G R Smith Precedents in Petroleum Law: Commentary and Text (1988) Centre for Petroleum and Mineral Law Studies University of Dundee.
- Mechanical and General Inventions Co Ltd v Austin [1935] AC 346.
- As in A B Consolidated Ltd v Europe Strength Food Co Pty Ltd [1978] 2 NZLR 515.
- [1969] RPC 41.
- [1969] RPC 41, 47.
- This test is generally adopted and was recently adopted in International Corona Resources Ltd v LAC Minerals Ltd in the Supreme Court of Canada.
- Hence there is no breach of a duty of confidence if nonconfidential information disclosed by one co-venturer to another is used after termination of the venture: Mar-con Corp Ltd v Campbell Capital Ltd [1990] 2 ALMD 81 [SC of NSW]
- Although he considered that use to the other's detriment may be more widely defined then he defined it: [1969] RPC 41, 48. Whether detriment was an essential requirement was questioned by Lord Denning in Dunford & Elliott Ltd v Johnson & Firth Brown Ltd [1977] 1 L1 Rep 305, 509 (CA). Detriment has been held unnecessary in the USA: Ohio Oil Co v Sharp 135 F 2d 303 (1943) [CA 10th Cir], In Attorney General v Guardian Newspapers Ltd (No 2) [1988] 3 WLR 631 some members of the House of Lords considered this issue leaving it inconclusively dealt with. Lord Keith considered that disclosure itself is the detriment, Lord Goff considered that detriment may not be necessary and Lord Griffiths considered that a private individual could not obtain an injunction as a remedy unless there was detriment cf G Forrai “Confidential Information—A General Survey” (1971) 6 Syd LR 382, 386 breach of the duty of good faith is the detriment and the damage caused goes only to remedy.
- [1969] RPC 41, 48.
- As La Forest J noted (in dissent on this point) in LAC Minerals (1989) 61 DLR (4th) 14, 36 cf Wilson J who confusingly called the breach of confidence a “common law” duty and then stated that an (equitable) fiduciary duty was also breached: (1989) 61 DLR (4th) 14, 17.
- Klinck postulates three alternative examples of the facts in LAC Minerals to suggest that a duty of fair dealing rather a fiduciary duty is the correct approach: D Klinck “The Rise of the ‘Remedial’ Fiduciary Relationship: A Comment on International Corona Resources Ltd v Lac Minerals Ltd” (1988) 33 McGill LJ 600, 613. But Klinck fails to appreciate that International Corona was the possessor and discloser of the secret information about the value of the property and it could dictate the terms upon which the other party could participate in the benefit of the information ie the acquisition of the property.
- R G Hammond “Is Breach of Confidence Properly Analysed in Fiduciary Terms?” (1979) McGill LJ 244, 248. This is so only if we accept that property is a proper juristic base for the duty of confidence. It is suggested that the early cases involving property may be distinguished on the ground that they often involved elements of common law copyright: eg Gee v Pritchard (1818) 2 Swanst 402: 36 ER 670 and Ahernathy v Hutchinson (1824) 1 H & Tw 28: 47 ER 1313. If we accept equity and contract as the two relevant bases then breach of contract can be completely defined in fiduciary terms. It is a fiduciary duty which can be established or modified by express contractual terms.
- La Forest J (dissenting on this point) LAC Minerals (1989) 61 DLR (4th) 14, 35–6.
- Hammond, 247 relying on Westminster Chemical NZ Ltd v McKinley & Tasman Machinery and Services Ltd [1973] 1 NZLR 659 and Dunfurd & Elliott Ltd v Johnson & Firth Brown Ltd [1971] 1 L1 R 505.
- Ie the disclosure of the confidential information was made because one party placed trust and confidence in the other.
- Ie to have the right to dictate the uses to which it may be put. This is not to suggest that confidential information is a species of equitable property. While the property metaphor is useful it is wise to remember that equity acts on the conscience of the defendant rather than merely to protect the plaintiff's property rights: R P Meagher et al Equity: Doctrines and Remedies (1984) 832–34, 2nd Ed.
- F Gurry Breach of Confidence, (1984) 161: Law Commission Consultation Paper No 124 “Fiduciary Duties and Regulatory Rules” (1992) Para 2.4.9 and 2.4.16.
- Thomas Marshall (Exporters) Ltd v Guinle [1978] 3 WLR 116; Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81. See too the facts in Belt Houses Ltd v City Wall Properties Ltd [1966] 2 WLR 1323 (although this case did not discuss confidentiality of the information). However, the duties may be owed to different parties: as Lord Upjohn recognised in Boardman v Phipps [1967] 2 AC 46, 89–90 where Boardman owed a duty of confidence to Lester & Harris Ltd and a duty to avoid a conflict of interest to the beneficiaries.
- International Corona Limited v LAC Minerals Limited (1989) 61 DLR (4th) 14.
- Where confidential information generated by the venture has been disclosed to all co-venturers then use by an individual co-venturer may pre-empt another coventurer from opportunities outside the joint venture. In effect it does not matter whether we consider the duty of confidentiality is owed to the venture as a separate entity or is owed by each co-venturer to each other as the venture is the co-venturers.
- Parry-Jones v Law Society [1969] 1 Ch 1.
- Saltman Engineering Co v Campbell Engineering Co (1948) 65 RPC 203 per Lord Greene MR.
- Disclosure to third parties is, in one sense, a use of the information. The distinction appears to be that disclosure is directed to third parties acquiring the information while use is not so broad and can be limited to the confidant dealing with the information without third party involvement.
- See Lord Denning's comments in Eraser v Evans [1969] 1 All ER 8, 11 and Potters-Ballotini Ltd v Weston-Baker [1977] RPC 202. Also by analogy with the employees’ duty of good faith and fidelity which also imports a duty of confidentiality: Surveys & Mining v Morrison [1969] QdR 470, 473 and Thomas Marshall (Exporters) Ltd v Guinle [1978] 3 WLR 116 cf W R Cornish “Protection of Confidential Information in English Law” (1975) 6 IIC 43 noting “good faith” as a juristic basis is a recent approach. Even so it is the preferable analytical method.
- An analogy may be made between the high level of mutual trust and confidence which gave rise to the duty of confidence in Argyll v Argyll [1967] 1 Ch 302 and the collaborative fiduciary relationship. In practice it is often humorously remarked that partnership is like a marriage. Both marriage and collaborative enterprises such as a partnership or a joint ventures require a high degree of mutual trust and confidence.
- It reinforces the collaborative fiduciary relationship because it protects each co-venturer's trust in the integrity of his co-venturers. It is the trust between the co-venturers that is the basis of the collaborative fiduciary relationship.
- [1970] Ch 602.
- [1970] Ch 602, 607–8 cf Kelly v C A & L Bell Commodities Ltd (1989) 18 NSWLR 248, 261 [NSWCA] partner entitled to disclose confidential information regarding partnership's financial situation to a business associate (described in the case as a co-venturer).
- If use is interpreted broadly then it may include using the information in additional analysis by an individual co-venturer for the purpose of considering whether or not to participate in a proposed well. However, such an interpretation is unlikely because (i) this is understood to be an authorised use and (ii) such a use would not be against the interests of the joint venture nor would non-disclosure of the results of such further analysis.
- Lord Denning's formulation of the requirements in Seager would require the use or disclosure not to be an unfair advantage over the co-venturers or prejudicial to the joint venture.
- If the approach in Aas v Benham [1891] 2 Ch 244 applies: see too J Waite & D McKenzie- McHarg “Fiduciary Duties in the Australian Resources Joint Venture Context” [1989-90] 9/10 OGLTR 241, 243.
- The scope rule was applied in Tombill Gold Mines Ltd v Hamilton [1954] OR 871 aff [1956] SCR 858 (SC of Canada). There an agent obtained confidential information outside the scope of his retainer (ie to analyse information presented to him) and his use of the information was permissible even though it competed with his principal's business. Thus both the use and obtaining was outside the scope of the fiduciary relationship.
- Potters-Ballotini Ltd v Weston-Baker [1977] RPC 202, 204.
- Wessex Dairies Ltd v Smith [1935] 2 KB 80 where the duty of confidence attaching to the duty of fidelity implied into the contract (but concurrent with it) was wider than the express contractual term.
- F Gurry Breach of Confidence (1984) 34. However, freedom of contract ought to enable the parties to specify how confidential information may be used or disclosed. But, it must be apparent from the agreement that the equitable duty is excluded.
- Taylor, 16–17.
- [1978] 3 WLR 116. See too Wessex Dairies Ltd v Smith [1935] 2 KB 80.
- If the clause had referred to use of the confidential information the reserve situation (ie disclosure) may have been caught as a confident disclosing the information would be using it.
- In some specialised agreements where restrictions on use are the norm and are to be expected the failure of agreement to specify restrictions may enable the court to conclude there are no restrictions: Regina Glass v Schuller (1972) RPC 229 [know-how agreement].
- Also breach of fiduciary duty ie appropriation of contracts belonging in equity to the company under Cook v Deeks [1916] 1 AC 554 was relied on by the court but less strongly. However, it would have been more appropriate to have argued that the director was making a profit from his position or was involved in a conflict of interest.
- Effectively this approach can be rationalised on the basis that each co-venturer can be treated as an owner of the confidential information: he is entitled to it as the joint venture produced the information. Disclosure to third parties may enable such parties to take advantage of the information and so disclosure will be prohibited. However, as owners of the information a prohibition on use would be too great a restraint on their ownership rights and is thus such uses are not prohibited.
- Unrep SC of Queensland 21 February 1992 per Ryan J.
- Thus it was not exhaustive in its operation.
- Ryan J did not deal with the duty of confidentiality as he considered that the express terms of the contract dealt with the situation.
- Shirlaw V Southern Foundries (1926) Ltd [1939] 2 KB 206, 227.
- Possibly a wide spread notoriety may give rise to an enforceable trade custom. The criticism of trade customs which are contrary to fiduciary duties by Lord Langdale MR in Gilleti v Peppercorne (1840) 3 Beav 78: 49 ER 31 was directed at a situation where the beneficiary did not know of the custom and could not have been taken to consent to it (ie the trade custom could not have become a term of his contract which overrode the independently existing fiduciary duty).
- Abernathy v Hutchinson (1825) 1 H & Jw 28: 47 ER 1313: Tipping v Clarke (1847) 8 LTOS 554. However, Finn considers that the implied term imposing a duty of confidence and the equitable duty will usually be the same: Finn Fiduciary Obligation (1977) 134. However, there is some suggestion that the employee's implied duty will be narrower post-termination than the equitable duty: Faccenda Chicken Ltd v Fowler [1986] 3 WLR 288, 299. It is possible that this may be explained by the effect of the doctrine against restraint of trade on employees.
- Robb v Green [1895] 2 QB 355; Nichrotherm Electrical Co Ltd v Percy [1957] RPC 207; Ackroyds (London) Ltd v Islington Plastics Ltd. [1962] RPC 207. See too Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1248 and Attorney General v Guardian Newspapers Ltd (No 2) [1988] 3 WLR 631 where the duty of confidentiality was considered to operate concurrently with an employee's duty of fidelity and also the Official Secrets Act (year).
- CY Vokes v Heather (1945) 62 RPC 47, 135 and A Turner Trade Secrets (1962) 210–2 Sweet & Maxwell London UK. However, it was acknowledged that the contract in Vokes was a special contract.
- Saltman Engineering Co Ltd (et al) v Campbell Engineering Co Ltd (1948) 65 RPC 203. This will be so even post-termination of the contract if a term validly operates after termination of the contract: Peter Pan Manufacturing Corporation v Corrects Silhouette Ltd [1963] RPC 45.
- Although orthodox contractual principles may suggest that an express term is exhaustive of a party's duties the courts have not adopted such an approach: Potters-Ballotini Ltd v Weston-Baker [1977] RPC 202, 204.
- The authorisation may be express or implied from the facts.
Journal of Energy & Natural Resources Law
Volume 11, 1993 - Issue 2