UK: Confidential information cannot be protected by barring order or premature application for injunction

Case law has established that it may be possible to injunct a professional adviser from acting as an expert for one party to a claim when it had previously provided services to the other side and had been given access to highly confidential information which could be relevant to the new matter, unless it can show that it has taken reasonable measures to prevent disclosure.

In this case an employer creatively sought to extend this principle to the employment context and prohibit an employee going to work for one of its clients, on the basis that this was likely to involve her in the use of the employer's confidential information. The High Court ruled that the principle did not apply to employees, and refused to make a barring order. (Caterpillar Logistics Services (UK) Ltd v Huesca de Crean, HC)

In another case, the Court refused an injunction restraining breaches of post-termination restrictive covenants where the employee was still working out his notice period and the Court considered there was no reason to suppose he would breach the covenants. The application was premature and the employer should have waited to see what the employee did at the end of his notice period. The Court also refused to grant declaratory relief as to the enforceability of the covenants as this might never be in issue, depending on what the employee did after his notice expired. (Sunseeker v Tobia, HC)