Bartlett D. Morgan

Following the Jamaican High Court decision in Aswan v National Commercial Bank, even if a contractual provision provides for confidentiality in your dealings, it may not be enough to protect your intellectual property interests if your actions, subsequent to the entry into the contract, suggest that you are o.k. with your confidential information being disclosed to third parties.

Background

The claimants in Aswan were developers of a point-of-sale top-up software application. The claimants and the defendant bank entered into a joint-venture agreement to create and deploy a customised version of the developers’ point-of-sale software solution. The envisioned end-product would allow users of the point-of-sale devices to ‘top up’ cellular phones with call credit by swiping their credit or debit cards at the point-of-sale machines.

The contractual documentation included clauses in a proposal document indicating that the information provided in it was confidential. The clause also required the developers’ written consent before the bank could disclose any confidential information to any third parties. Notably, that aspect of the contractual documentation was never actually signed by the bank’s representatives.

The bank eventually sought the help of a third-party entity to assist it with completing other aspects of the project. The bank shared certain information with the third-party developer via emails (on which the developers were copied) including aspects of the confidential information from the proposal document.

The relationship between the developers and the bank started to break down over time. Eventually, the developers terminated the joint venture agreement, for reasons unconnected with the breach of the confidentially clause. Thereafter, a suit was brought against the bank claiming breach of confidence and seeking damages.

Findings of the Court

Despite the bank’s argument that it did not, in fact, sign the relevant parts of the documentation that imported confidentiality, the Court was willing to construe the overall circumstances as importing a duty of confidentiality. The Court arrived at this decision following the approach  to contractual interpretation espoused by the Privy Council in AG Belize v Belize Telecom.

Quick background: that case held that in appropriate circumstances, a court can read implied terms into contracts where it is obvious that the parties intended those implied terms to be part of the contract between them.

The Court, notwithstanding the lack of signature on behalf of the Bank, was willing to accept that there was a confidentiality agreement. It declined, however, to enforce it in the circumstances of the case.

The Court reasoned that the confidentiality agreement should not be enforced since the conduct of the developers indicated that they had acquiesced in the sharing of the confidential information with a third-party. The Court was moved by the fact that the bank had copied the developers on emails wherein the bank corresponded with the third-party developer. In those emails, the information which the developers deemed confidential was shared.

Despite this knowledge that a third-party was being provided with the information which the developers were asserting was confidential, the developers did nothing to enforce the right to confidentiality during the life of the contract. In the Court’s estimation, this appeared fatal.

Lessons for ICT Entrepreneurs

1. The most important lesson here for app developers and others in the ICT space – ensure that your conduct aligns with your contract. If after entering a contract, the parties acknowledge that the expectations and outcomes have shifted meaningfully from what was initially agreed, it makes sense to expressly agree an addendum to the contract, reflecting the new state of affairs. If not, the parties run the risk of having a court belatedly assuming, on their behalf, what they must have meant.
2. Ensure that your contracts are expressly agreed to by all the parties; don’t just rush to get to work. Some record of what has been agreed to must exist. A signature is ideal but even a confirmatory email can suffice, depending on the circumstances.
   The developers in the Aswan case may be considered lucky that the Court was willing to find in their favour that there was a confidentiality agreement between them and the Bank, despite the Bank’s representative having never signed the documentation. A more conservative court may well have gone a different route. Going forward, developers and other service providers should be careful to do all the formalities, including getting the signature (or equivalent record of agreement) of the other parties to the contract.
3. Although the two developers referred to themselves as ‘HMA Solutions Limited,’ they sued the bank in their own names. It is, therefore, likely that they were using ‘HMA Solutions Limited’ as a mere trading name at the relevant time.
   The lesson here: the capacity in which you contract has very practical, everyday consequences, including whether your liability is personal. For example, lets say you entered a contract in your personal capacity and following a breach, you sue the other party in court. If you lose the claim, the cost order of the Court will likely be enforceable against you personally. By contrast, if you entered into a contract via a company you own, separate legal personality dictates that you would not be personally liable for any adverse outcomes.
   Note, this isn’t saying a corporate vehicle like a limited liability company is suitable for every kind of venture. This IS, however saying that before you jump into the next potentially lucrative venture, spend a few hours talking over appropriate legal structures to employ with your advisers.