Marathon Asset Management LLP & Anor v Seddon & Ors [2017] EWHC 300 (Comm)

The High Court found that two ex-employees caught copying confidential files belonging to their employer (the Claimant) onto USB sticks prior to their leaving were in breach of both their duties of confidence and their employment contracts.

The Claimant claimed £15m in "Wrotham Park" damages, based on the notional sale value Marathon attributed to the confidential information taken. Notably, there was no allegation of the Claimant suffering any actual financial loss as a result of the copying of documents. The judge confirmed that the basis of damages in English contract law is to compensate the injured party, not to punish any wrongdoing. As no financial loss or injury had been sustained by the investment management firm, nominal damages of £1 each were awarded.

The case highlights the difficulty in securing damages from breach of confidence claims. Evidence of financial loss arising from the breach (typically not easy) will be crucial. It serves as a reminder to employers of the focus they should place on protecting the information from misappropriation and misuse. It is far better to secure the stable door before the horse has bolted.