Key takeaway
The Court of Appeal has confirmed in IlliquidX Ltd v Altana Wealth & Ors [2026] EWCA Civ 874 that “public domain” in an NDA carries its established legal meaning: information is only public once it is so generally accessible that it can no longer realistically be regarded as confidential. Sharing material with selected prospective investors does not necessarily put it in the public domain where circulation remains controlled. Nor does the fact that individual underlying facts are publicly known mean that a distinctive strategy assembled from those facts is public too.
The case also highlights an important distinction around competition. The NDA allowed the parties to compete if the joint venture did not proceed, but prevented competition using IlliquidX’s confidential information. That is different from a standalone restriction designed to prevent competition itself.
IlliquidX Ltd v Altana Wealth & Ors is a Court of Appeal decision that will matter to any business that shares valuable commercial ideas under an NDA before a deal is agreed.
It answers a question that comes up in confidentiality disputes: if the other side later says “well, some of this was out there anyway,” does that let them off the hook?
The Court of Appeal said no, and its reasoning is worth setting out in full.
What happened in IlliquidX v Altana Wealth?
IlliquidX Limited, a London advisory and broking boutique, had built up expertise in distressed Venezuelan sovereign debt.
Most of that debt was in default, and US sanctions restricted access to US financial markets, but non-US investors could still lawfully buy and clear certain Venezuelan bonds through Euroclear. IlliquidX identified this as a workable investment opportunity and set out to build a fund around it: a sanctions-compliant vehicle capable of exploiting undervalued Venezuelan debt.
In 2019, IlliquidX brought this idea to Altana Wealth, an investment fund manager, and its consultancy Brevent Advisory.
The parties entered into arrangements governing their proposed joint venture and confidential information. Under the NDA, IlliquidX shared its strategy, fund structure and investor materials.
The joint venture collapsed in November 2019 without a fund ever being launched.
Eight months later, in July 2020, Altana launched its own fund targeting the same opportunity: the Altana Credit Opportunities Fund.
IlliquidX sued for misuse of confidential information.
Altana’s defence rested in significant part on the NDA’s carve-out for information already “in the public domain”. It argued that the underlying facts about Venezuela’s sanctions regime and its distressed debt were widely known, and that IlliquidX’s own marketing materials had already been shared with prospective investors.
Mr Justice Rajah rejected that defence at first instance, and the Court of Appeal, in a judgment given by Lord Justice Arnold, with whom Lord Justice Zacaroli and Lord Justice Miles agreed, unanimously dismissed the appeal.
For a related example of the issues that can arise once a joint venture breaks down, see our article on joint venture disputes and who owns the next business opportunity.
What does “public domain” mean in an NDA?
This is the central question the case answers, and the Court of Appeal was clear that it is a legal question, not simply a loose commercial one.
“Public domain” has an established meaning in the law of confidence.
As Lord Goff explained in Attorney-General v Observer Ltd, information is in the public domain when it is so generally accessible that, in all the circumstances, it can no longer be regarded as confidential.
Lord Justice Arnold restated the related principle from Racing Partnership Ltd v Done Bros (Cash Betting) Ltd: the true criterion of confidentiality is not absolute secrecy, but inaccessibility. Relative inaccessibility can therefore be enough for information to remain confidential.
Altana wanted a much looser reading: that information should be treated as public if it had been disclosed to someone who was not themselves subject to a duty of confidentiality.
The Court of Appeal rejected that interpretation.
Where a professionally drafted contract uses an expression with an established legal meaning, the obvious inference is that the parties intended that established meaning to apply unless the wording points in another direction.
The NDA was based on a professionally drafted precedent and there was nothing in its wording to suggest that “public domain” should carry a different meaning. Read more on this issue in our article on why boilerplate clauses matter.
Does sharing confidential information with investors put it in the public domain?
Not necessarily. IlliquidX’s materials had been circulated to selected prospective investors. Altana argued that the extent of that circulation was inconsistent with genuine confidentiality.
The Court of Appeal disagreed.
The important question was not simply how many people had seen the material, but whether the information had become generally accessible.
The materials had been distributed selectively rather than placed into unrestricted public circulation. The Court upheld the first-instance conclusion that this did not put the relevant information into the public domain.
Confidential information does not have to be known only to one person, or kept completely secret, in order to remain protected. Information can be shared with a defined group while remaining relatively inaccessible to the market generally.
The practical question is therefore not simply “has anyone else seen it?” but “has it become generally accessible?”
Can a combination of public information still be confidential?
Yes. Altana’s strongest point, on paper, was that much of the raw material behind IlliquidX’s strategy was genuinely public: the existence of the sanctions regime, the mechanics of settlement and information about distressed Venezuelan debt.
If the individual ingredients were public, Altana argued, how could the strategy built from them remain confidential? The courts rejected that approach.
Public availability of individual elements does not necessarily mean that the particular combination, collation or package of information is also public. The Court of Appeal upheld the finding that the relevant business opportunity and fund detail, viewed as a package, remained confidential information protected by the NDA.
Put more simply: the ingredients may be public while the recipe remains confidential.
That distinction is particularly important for businesses whose commercial advantage lies not in possessing one secret fact, but in identifying, combining and applying publicly available information in a way that competitors have not.
Does an NDA stop the other party from competing with you?
Not necessarily. This aspect of the judgment is useful because it touches on a misunderstanding that arises regularly when businesses enter into confidentiality arrangements.
The relevant provision in this NDA allowed the parties to compete with each other if the joint venture did not proceed, but prevented the appellants from competing with IlliquidX using IlliquidX’s confidential information.
An NDA can restrict the use or disclosure of confidential information without preventing the recipient from competing independently.
If a business wants to prevent a counterparty from pursuing the same commercial opportunity regardless of whether confidential information is used, that requires a different and more carefully drafted restriction.
This is why confidentiality, exclusivity and non-compete provisions should not be treated as interchangeable. For a broader discussion of what non-compete clauses actually restrict, see our article on non-compete clauses in the UK.
What should businesses include in an NDA?
For businesses that regularly share commercially sensitive information ahead of a possible transaction or joint venture, the practical lessons are straightforward.
Define confidential information carefully. The scope of protection starts with the contractual definition. Broad definitions can be effective, but the exclusions and permitted uses need equal attention.
Draft the public-domain exclusion deliberately. If the parties intend “public domain” to mean something different from its established legal meaning, that needs to be reflected clearly in the contract.
Control circulation. Mark sensitive materials appropriately, avoid unrestricted publication and keep a clear record of who received them and why.
Do not assume public ingredients make the finished strategy public. The relevant confidential information may lie in the way facts, data and commercial knowledge have been combined.
Separate confidentiality from competition restrictions. An obligation not to misuse confidential information is not the same as an obligation not to compete.
Address failed-deal scenarios at the outset. If the real commercial concern is that a prospective joint venture partner might later pursue the opportunity independently, consider whether confidentiality obligations alone provide enough protection.
What does IlliquidX v Altana Wealth mean for confidentiality disputes?
The decision gives businesses useful confirmation that courts will not treat confidential information as public merely because it has circulated beyond a tiny group.
The question is whether it has become sufficiently accessible that it can no longer properly be regarded as confidential.
It also confirms that courts can protect the value in a combination of information even where individual components of that combination are already publicly available.
For businesses sharing strategies, investment propositions, customer information, financial models or other commercially valuable know-how, that distinction can be critical.
The broader lesson is to be precise about what an NDA is intended to achieve.
If the concern is disclosure, draft for disclosure. If the concern is misuse, regulate permitted use. If the concern is that the recipient may become a competitor after the proposed deal collapses, address competition or exclusivity separately rather than assuming that ordinary confidentiality wording will do the job. For more on protecting commercially sensitive information during negotiations, see our article on how to protect the interests of the owner during M&A.
Barnes Law’s Commercial Law team advises businesses on non-disclosure agreements, confidential information, commercial contracts and the protection of commercially sensitive information. For more information, please contact our Commercial Law team to discuss how we can support you.
Written by Barnes Law Managing Partner Yulia Barnes.
