Can you consent to a database extraction breach of confidence?
This was a complex dispute concerning a claims management database. It involved alleged infringement of a database right, misuse of confidential information and breach of fiduciary duty. It was decided by His Honour Judge Cawson QC, sitting as a judge of the High Court in Manchester, on 19 March 2021.
The claim was brought by claims management company DRSP against Thomas O’Connor and Octax Limited. Mr O’Connor worked for DRSP until February 2018, after which he became a consultant to DRSP acting on behalf of Octax. In this capacity, he referred cases to DRSP.
DRSP obtained, verified and kept data (including sensitive data) and managed this through a bespoke database called Slate, which was created at considerable expense. Mr O’Connor and other employees of Octax had access to Slate, and during 2018 they dragged and dropped data relating to a number of cases. DRSP argued that some of these actions were unauthorised and therefore constituted infringement of the database.
The judge painstakingly reconstructed the extensive discussions between the parties during the relevant period and examined the credibility of the various witnesses. He concluded that a database right did subsist and that “extraction” had occurred. Therefore, the acts complained of were capable of amounting to infringement. However, based on the communications between the parties, he found that the acts were authorised and consented to. After considering each specific allegation in turn, the judge concluded there had been no infringement of the database right.
Finally, the judge accepted the defendants’ counterclaim that Octax was entitled to a 50% fee in respect of leads referred to DRSP under the introducer agreement between the parties. It was also entitled to an inquiry as to damages for breach of contract.