The Duty of Confidence

Useful for: Business, Government, Local Government, Not for Profit

In Brief

  • Where there is no specific consideration being given for the agreement (for example where only one party is agreeing to keep information confidential), the agreement should be drafted and executed as a Deed.
  • Even where both parties are agreeing to keep each other’s information confidential a Deed is preferable to avoid any dispute about the enforceability of the confidentiality undertakings of the parties.
  • It is very important to ensure that:
    • The nature of the confidential information;
    • The purpose for which the confidential information can be used/disclosed;
    • The parties to the agreement (and any other persons who have an interest or a need to know) and
    • The period that the information is protected for

are well defined, to avoid disputed evidence and to decrease the risk of breaches occurring because the intent of the parties is unclear.

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