Confidentiality and IP Clauses: Practical Enforcement Strategies and Challenges (Paper)

Materials comprised of a Paper and PowerPoint Handout.

Presenters

Philip Skelton KC, Barrister, Bankside Chambers

Kevin Glover, Barrister, Shortland Chambers

Chair: Gillian Service, Partner, MinterEllisonRuddWatts

Synopsis

In today’s competitive landscape, employee departures are no longer isolated events but can pose a significant risk for a business, particularly where entire teams move to rival firms, taking with them expertise, client relationships, and sometimes confidential information and valuable intellectual property (IP). This paper addresses the complex intersection of employment and IP law when it comes to team departures.

Legal experts will explore strategies to safeguard against IP breaches, discuss challenges in achieving meaningful enforcement outcomes, and emphasise the importance of managing client expectations with realistic legal advice in cases involving breaches of confidentiality, IP theft, and unfair competition.

These Materials will help you:

• Distinguish between know-how, confidential information and intellectual property rights, and understand the protections available under each.
• Evaluate jurisdictional choices—Employment Relations Authority vs. High Court—and determine the most strategic approach based on case-specific factors.
• Explore practical strategies for pre-emptive protection, including employment contract clauses on confidentiality, IP, and restraint of trade.
• Gain insight into the scope and limitations of civil remedies, such as search orders and damages, and evaluate scenarios where criminal prosecution under the Crimes Act 1961 may be warranted in cases of team departures.

Intended Audience

Employment lawyers, civil and commercial litigators