Team moves often include claims for misuse of confidential information. A recent example is Marathon Asset Management (MAM) -v- Seddon and Bridgeman. Before leaving MAM’s employment Mr Bridgeman electronically copied 40,000 documents, including a mixture of confidential and non-confidential information. As an employee, he was subject to implied contractual duties of fidelity, good faith and confidentiality.
He admitted acting in breach of contract by copying the documents. He also admitted accessing 52 of the documents before delivering them up to MAM. However, crucially for the purposes of this case, the Court found that he had not made any copies of the documents or derived any material benefit from looking at them.
MAM sued and claimed £15m, under the Wrotham Park principle. This assumes a hypothetical licence fee that would have been charged to release Mr Bridgeman from his confidentiality obligations. MAM made no attempt to base its claim on the use Mr Bridgeman had made of the documents or the value he obtained as a result.
Notwithstanding the very extensive copying, the Court dismissed the claim for what it described as “jackpot damages”. A hypothetical licence fee had no application in cases where no real use of the documents had been made (nor could be made). No one would pay a substantial sum of money to copy documents that could not be subsequently used.
As MAM had not advanced any alternative basis for its claim it was awarded notional damages of just £2.
This case is a helpful reminder of the importance of strategic planning when pursuing a claim against departing employees. In this instance, although there was very widespread copying by Mr Bridgeman, he returned the documents in question and no harm was suffered or unfair advantage gained as a result. MAM came unstuck when seeking a gain a windfall of £15m.