12/19/2023 0 Comments Breach of confidentiality agreement![]() ![]() ![]() In conducting the balancing exercise, it is necessary to consider the nature and extent of the duty of confidentiality, which will differ from case to case.Accordingly, a balancing exercise is required to determine whether a breach of confidence may be justified by the public interest defence, as the protection of confidentiality is itself also a matter of public interest.A person must be able to disclose such information in order to maintain "the laws of the society". The policy underpinning the public interest defence is the so-called "defence of iniquity": a party cannot be entitled to make someone a "confidant of a crime or a fraud".They also argued that they had been acting under legal compulsion to assist the CBC after it had sent them a letter in April 2015 requesting information and documents.Īfter considering the relevant legal authorities, the Court made the following observations in relation to the public interest defence. Materially, the Defendants argued that they made the disclosures because they had come to the conclusion that the extent of the criminality being conducted through the Bank was so serious that it represented a threat, not only to the banking system, but to the safety and welfare of other people. Notwithstanding strict confidentiality obligations surviving the termination of their retainer, the Defendants then provided materials from the investigation to several parties, including the CBC, FinCEN and other law enforcement agencies. ![]() Due to this disagreement and allegations regarding the Defendants' unpaid fees, the investigation was effectively brought to an end in November 2014. The owners of the Bank then engaged the Defendants, former police detectives specialising in corporate investigations, to investigate, although there was some subsequent disagreement regarding the scope and purpose of the investigation. Subsequently, the Central Bank of Cyprus (" CBC"), the regulator of the Bank's Cyprus branch, assumed the administration of the Cyprus branch. In July 2014, the US Financial Crimes Enforcement Network (" FinCen"), a US regulator, issued a Notice of Finding in respect of FBME (the " Bank") expressing concerns that the Bank may have been used to facilitate money laundering in Cyprus and Tanzania. This alert examines the key features of the Court's judgment. The decision provides a reminder of the various factors the Court will take into account in deciding whether a public interest defence should succeed against a claim for breach of confidence, and is timely given the increasing tension between businesses' duties to make disclosures to regulators and law enforcement authorities, and their obligations to safeguard certain categories of information pursuant to (for example) confidentiality and personal data obligations. The Defendants had asserted a public interest defence, alleging they had come across evidence of criminality, and that the disclosures had been compelled by law, but the Court rejected these arguments. The English High Court has handed down its judgment in Saab v Dangate Consulting Ltd and others, 1 finding that the Defendants, private investigators appointed to conduct an internal investigation at a bank, had breached their confidentiality obligations by disclosing material from their investigation to regulators. ![]()
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