Professional secrecy in the financial services sector : a comparative analysis

Abstract

The notion of confidence, as the relation of intimacy or trust between two persons, one of whom has imparted private or secret matters to another, appears to have been present as a social institution for a number of centuries. However, it has only been in comparatively recent times that the courts have chosen to attach legal consequences to this relation. From a review of UK case-law, it transpires that the early cases which were deemed to fall within breach of confidence really concerned the improper and unauthorised distribution or publication of letters, literary works and prescriptions for medicine.1 Thus, in Pope v. Curl, 2 Alexander Pope obtained an injunction against the bookseller Curl, restraining him from selling a book entitled 'Letters from Swift, Pope and others'. It was here held that property in such letters belonged to the author and that the sending of a letter did not constitute a gift to the receiver. The receiver may only be deemed to have acquired property in the paper and at most joint property with the writer; but such limited property did not give to the receiver licence to publish to the world. That which is however considered to mark the real commencement of the action for the breach of confidence is the Prince Albert v. Strangt? case. In this case, the plaintiff obtained an injunction against the defendant restraining him from publishing a catalogue of etchings made by Queen Victoria and Prince Albert. As well as describing the etchings, the catalogue announced a proposed exhibition of them and falsely implied that the R.G. Toulson, C.M. Phipps, Confidentiality, 1996. 2 (1741) 2 Atk. 342. Similar decisions were reached in Duke of Queensberry v. Shebbeare (1758), Webb v. Rose (1732), Forrester v. Waller (1741), Gee v. Pritchard (1818). 3 (1849) 1 De G. & Sm. 652; (1849) 1 Mac. & G. 25. publication had royal consent. The catalogue was actually compiled from copies surreptitiously made by an employee of a printer in Windsor, to whom plates of the etchings had been sent for the purpose of making copies for the Queen and the Prince. Thus, this case is considered to be a landmark in view of the broad statement made by the courts, namely that 'a breach of trust, confidence or contact would of itself entitle the plaintiff to an injunction.'