Social Origins and Modern Developments
Chapter 2: Inventing an Equitable Doctrine
2. Inventing an equitable doctrine Sir George Jessel once remarked that equitable doctrines, unlike their common law counterparts, were often invented and that in many cases we know the name of the inventor.1 Equitable protection of breach of confidence, however, is not a doctrine, like the equity of redemption or the restrictive covenant whose origins can be traced back to a seminal case. The decision which finally gave shape to the doctrine in the mid-nineteenth century was Prince Albert v Strange.2 That case is the focus of the next chapter. But as the judgments and arguments of counsel makes clear, the fragments of equitable principle which coalesced to form the doctrine of breach of confidence had been well known to equity for at least a century. The puzzle lies further back in the story of equity: what is the source of those fragments? In many respects the development of the law of breach of confidence is a story of equity’s judges creatively exploiting terminological ambiguity. The word ‘confidence’ was used in several senses in early equity, usually in the context of the obligations imposed on feoffees to uses (as trustees of land were known until the nineteenth century), or more generally as the rationale for imposing strict anti-opportunistic behaviour obligations on fiduciaries. Some formulations of the fiduciary’s obligation of confidence were applied more generally to justify the enforcement of confidentiality obligations. The symbiotic (or, less charitably, confused) relationship between the law of confidentiality and fiduciary obligations is illustrated by a...
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