Social Origins and Modern Developments
Chapter 7: Revival of an ‘Ancient Doctrine’
The latter twentieth-century revival of breach of confidence is largely the story of how the pressure of social and economic change, filtered through intellectual influences on the law, compelled British courts to revise established legal methods for resolving recurring disputes. While there might be disagreements as to how far they might be prepared to go, by the end of the century breach of confidence was a flourishing doctrine relied on in numerous cases. Primarily, they were cases of commercially valuable information, with a distinct subset involving scenarios of real innovation or creativity; but now there were also some cases of personal and private information – with hints that further categories might be identified.1 As well, we see judges now openly acknowledging that they are not simply discovering but creating law, albeit in an incompletely reasoned and incremental fashion.2 This was something that even the Court of Appeal in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd3 had been loath to do in 1948 when it restated the doctrine of the nineteenth century without noting that the doctrine had been progressively marginalized in the latter nineteenth century and virtually extinguished in the first half of the twentieth century.4 So in the 1960s the positivism of the earlier twentieth century began to give way to something else: a method that 1 And for an attempt at ordering, see Francis Gurry, Breach of Confidence (Oxford: Clarendon Press; 1984), Ch 5 – and further the second edition by Tanya Aplin, Lionel Bently, Simon Malynicz and...
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