Confidentiality

Obligations

Describe the private banking confidentiality obligations.

Private banks are usually bound by express confidentiality obligations contained in their terms of business and the contractual arrangements that they enter into with their clients. There is also the equitable doctrine of breach of confidence available to the clients of private banks under English law. Under this doctrine, where a private bank receives information in such a manner as to give rise to a duty of confidence on the part of the private bank, the latter may only use the information for the purpose for which it was given and the client may bring an action against the private bank where the private bank has disclosed this information other than for the purpose for which the information was provided and the client has suffered a loss as a result of the unauthorised disclosure.

Scope

What information and documents are within the scope of confidentiality?

Information that by its nature is confidential will generally fall within either the relevant contractual obligations or the equitable doctrine of breach of confidence. In the context of a private banking relationship, this would typically include personal and financial information.

Expectations and limitations

What are the exceptions and limitations to the duty of confidentiality?

The duty of confidentiality only applies to information that is confidential. As such, the duty of confidentiality generally does not apply to information that is already within the public domain or that the private bank obtained legitimately from a third party. In addition, requirements to disclose information under applicable law and regulation will override any contractual duty of confidentiality and the equitable doctrine of breach of confidence.

Breach

What is the liability for breach of confidentiality?

There are a number of remedies available to clients where private banks have breached their duty of confidentiality. These include a court injunction to prevent the private bank from making any further disclosures of the confidential information in question and damages. Damages can be sought either for breach of contract or for a breach of the equitable doctrine of breach of confidence. The quantum of damages depends on the circumstances of the breach. Although in some instances the client may be able to base its damages claim on the profits that the private bank has made as a result of its breach of confidentiality, more typically clients seek compensatory damages.