Illiquidx v Altana Wealth: Court of Appeal clarifies the meaning of “public domain” in NDAs

In a landmark decision regarding cross-border joint ventures, the Court of Appeal has dismissed an appeal against the High Court’s finding that an investment fund management company and its consultant misused confidential information belonging to their former joint venture partner when establishing a fund to invest in distressed Venezuelan sovereign debt.

The decision in Illiquidx Ltd v Altana Wealth & Ors [2026] EWCA Civ 874 provides useful guidance on the interpretation of non-disclosure agreements (NDAs), particularly where they exclude information which is already in the “public domain”. It also confirms that information may retain its confidential character even where much of the underlying material is publicly available, if the particular collation and analysis of that material is not generally accessible.

Background

Illiquidx, an advisory firm specialising in illiquid investments, entered into a joint venture in 2019 with Altana Wealth and Brevent Advisory to explore the possibility of launching a fund to invest in distressed Venezuelan debt. As part of that process, Illiquidx shared a package of confidential information (described as the “Business Opportunity”) under the terms of an NDA.

Although the joint venture came to an end without a fund having been launched, Altana later went on to establish its own fund, targeting the same business opportunity. Illiquidx subsequently issued proceedings alleging breach of the NDA, misuse of confidential information, infringement of trade secrets, and copyright infringement in relation to slides from a PowerPoint presentation it had provided during the discussions.

The High Court decision

At first instance, Mr Justice Rajah found that Altana and Brevent had misused Illiquidx’s confidential information.

A central issue was what the parties had meant by the phrase “public domain” in the NDA. Altana and Brevent argued that much of the information relied upon by Illiquidx was publicly available and could have been identified through independent research.

Although the fact that Venezuelan debt was distressed was widely known and information concerning sanctions and the ability to trade particular bonds could be found publicly, the judge found that the collation of that information to formulate the rationale for a sanctions-compliant Venezuelan distressed debt fund was not itself in the public domain. Altana’s use of that material to establish its fund therefore amounted to a breach of the NDA and misuse of confidential information.

Altana and Brevent appealed.

The appeal

The Court of Appeal unanimously dismissed the appeal.

The appeal raised three fundamental issues: the proper interpretation of “public domain” in the NDA; whether the relevant information fell within other exceptions because the defendants had acquired it independently; and whether circulation of Illiquidx’s marketing materials to potential investors had placed the information in the public domain.

Meaning of “public domain”

The most significant part of the judgment concerns the interpretation of “public domain”.

Altana and Brevent argued that the phrase should extend to any information which had been made available or disclosed without being subject to a duty of confidentiality. On that interpretation, information could fall within the public-domain exception even where only one person was legally free to use it.

The Court of Appeal rejected that approach, reaffirming the principle from Attorney-General v Observer Ltd [1990] 1 AC 109 at 282 that confidentiality is a relative concept, not an absolute one. Information enters the public domain only when it is “so generally accessible that, in all the circumstances, it cannot be regarded as confidential.” Information does not need to be completely secret in order to be protected.

The Court also highlighted that where a professionally drafted contract uses well-established legal terms, it is presumed that the parties intended it to carry that established meaning unless the wording of the contract indicates otherwise. There was nothing in the NDA to suggest that “public domain” was intended to carry the broader meaning advanced by Altana and Brevent, and the fact that the NDA defined confidential information widely did not change that. The Court emphasised that sophisticated parties are free to negotiate broader exclusions if they wish.

Independent knowledge

Altana and Brevent also argued that certain information had reached them independently and therefore fell within other exceptions in the NDA. For example, they relied upon evidence showing that third parties were trading Venezuelan bonds despite the applicable sanctions. However, that established only that certain bonds could be traded. It did not establish independent knowledge of the distinct Business Opportunity identified by the judge.

The Court also noted a procedural difficulty with this aspect of the appeal. A number of the arguments now relied upon had not clearly been advanced at trial. The defendants could not complain that the trial judge had failed to make findings on matters which they had not properly asked him to determine.

Disclosure to investors

Altana and Brevent further argued that the Business Opportunity was exempt from the NDA because Illiquidx itself had shared marketing materials with prospective investors, effectively placing it into the public domain. Again, the Court of Appeal upheld the High Court’s ruling that controlled circulation to targeted and prospective investors does not destroy the confidential nature of the information or place it in the public domain.

The court explicitly affirmed that the defendants bore the burden of proof to show that the information had entered the public domain. They failed to provide any public document from 2019 which disclosed the Business Opportunity, even at a relatively high level of generality.

Practical implications

The Court of Appeal’s decision provides several useful lessons for businesses dealing with commercially sensitive information and in particular, the enforcement of NDAs in the United Kingdom.

First, where a professionally drafted NDA refers to information being in the “public domain”, the UK courts are likely to give that phrase its recognised legal meaning, unless the drafting demonstrates a different intention. Parties seeking a wider exception should therefore address that expressly.

Second, disclosure and publication are distinct concepts. Sharing confidential material with a select group of investors or commercial counterparties does not automatically place that information into the public domain. Ultimately, whether information remains confidential depends on the context of the sharing, who receives it, and the specific measures taken to protect it.

Third, publicly available information may still form part of a protected confidential package. While the individual components of a business plan, investment strategy, or commercial venture might be discoverable through public research, the unique way they are selected, compiled, and analysed to create a valuable commercial opportunity remains strictly confidential.

The judgment therefore offers significant comfort to businesses whose commercially valuable information uses publicly available material. Confidentiality does not require absolute secrecy: the crucial issue is whether the information, in its compiled form, is genuinely accessible to the wider public.