Court Of Appeal Considers Whether Confidential Information Relating To An Investment Opportunity And Subject To A Non-disclosure Agreement Was Misused

The decision illustrates the court’s approach to the meaning of “public domain” in professionally drafted confidentiality agreements 

The Court of Appeal found in favour of an advisory firm in its claim against an investment fund manager and related parties for misusing confidential information. The information had been shared under a non-disclosure agreement (NDA) during joint venture discussions regarding distressed Venezuelan debt investment opportunities and the establishment of a fund: IlliquidX Ltd v Altana Wealth & Ors [2026] EWCA Civ 874.

The decision will be of interest to financial institutions as it illustrates the court’s approach to the interpretation of the expression “public domain” in an NDA. It reaffirms that: (i) as per Attorney-Generalv Guardian Newspapers Ltd (No 2) [1988] UKHL 6, that  information is only in the public domain if it is "so generally accessible that, in all the circumstances, it cannot be regarded as confidential”; and (ii) as per Racing Partnership Ltd v Done Bros (Cash Betting) Ltd [2020] EWCA Civ 1300, that confidentiality is a relative concept and the true criterion is inaccessibility rather than secrecy. Information therefore need not be entirely secret to remain protected. 

The decision confirms the courts continue to construe “public domain” narrowly. In the present case, the information included the firm's strategy for establishing a sanctions-compliant fund to exploit distressed Venezuelan debt opportunities, together with related fund structures, presentations and investment materials. The fund manager argued that disclosure without an obligation of confidence, destroyed confidentiality, even where the information was not generally accessible. The Court of Appeal rejected that argument. It confirmed that information relating to a commercially valuable investment opportunity remains confidential where: (i) it is not widely known in the market, even if some of the underlying elements are publicly available; and (ii) related investment materials shared with selected prospective investors are marked private and confidential, distributed to a limited audience, and are not made available on a public website or distributed as part of a general newsletter. 

From a practical perspective, the case is an important reminder for financial institutions handling commercially sensitive information under an NDA to consider carefully: (i) whether the information is genuinely in the public domain; and (ii) if not, whether there are any contractual exceptions which permits its use or disclosure. Parties should not assume that the availability of individual elements in public sources means the information as a whole has lost its protection.

We examine the decision in more detail below.

Background

By 2019, IlliquidX Limited (IX), an advisory and broking boutique specialising in illiquid investments, had developed particular expertise in Venezuelan debt. Most Venezuela's sovereign debt was in default and US sanctions had restricted Venezuela’s access to US financial markets. However, non-US persons could still buy and clear certain Venezuelan sovereign bonds and bonds issued by the Venezuelan state oil company, Petróleos de Venezuela SA, through Euroclear without breaching those sanctions, creating an investment opportunity. IX identified that opportunity and sought to establish a fund to exploit it (the Business Opportunity). 

In early 2019, IX approached Altana Wealth (Altana), an investment fund management manager, and Brevent Advisory Limited (Brevent), a consultancy that provided services to Altana, to collaborate on the proposed new fund. In June and July 2019, IX, Altana and Brevent entered into a joint venture agreement (the JV Agreement) and an NDA to establish the Altana IlliquidX Canaima Fund (the AICF), a fund focused on distressed Venezuelan debt. 

Under the JV Agreement, IX was only obliged to launch the fund with Altana and Brevent if they reached certain fundraising targets. During the joint venture, IX provided Altana and Brevent with various presentations, fact sheets and other documents setting out details of the proposed fund, its rationale and structure. The NDA contained broad confidentiality obligations, subject to certain exceptions including where information was "in the public domain" at the time of supply. All obligations under the NDA expired in July 2022. The joint venture ended in November 2019 without a fund being launched. In July 2020, Altana established its own distressed Venezuelan debt fund, the Altana Credit Opportunities Fund (the ACOF). 

IX issued proceedings in 2020, claiming that Altana and Brevent had misused IX's confidential information in establishing the ACOF, in breach of both the contractual obligations in the NDA and an equitable obligation of confidence. 

High Court decision

The High Court found in favour of IX.

The High Court noted that the Business Opportunity was confidential information under the NDA because it was IX’s idea and concept. However, it did not accept Altana and Brevent’s argument that they had not misused this information as the Business Opportunity was in the public domain. In the High Court’s view, such an opportunity was not widely known in the market. The Business Opportunity itself was not published by IX, Altana or Brevent as a collation of information except as part of the AICF materials. It was right that much of the information in the AICF materials were publicly available and could be found if one looked. However, the collation of that information to formulate a rationale for the idea of a sanctions compliant fund to invest in distressed Venezuelan debt was only available in the AICF materials. 

Also, although some of those documents had been shared as marketing material with selected investors, the High Court did not consider that this made them generally accessible to the public, or to other investors who did not receive them, or to competitors. It was significant that the circulation of the documents was clearly intended by IX, Altana and Brevent to be treated as a confidential opportunity to be presented to serious potential investors. For example, a key presentation about the AICF was marked as “Strictly Private & Confidential”, and it was not put on the website or sent as part of the wider newsletter circulation by IX and Altana. In the High Court’s view, it remained relatively secret because it was not circulated more widely. It was also not intended to be, and was not, available to potential competitors to IX.

Accordingly, the High Court found that neither the Business Opportunity or the AICF materials were within the public domain or otherwise within the disclosure permitted by the NDA. The High Court concluded that there was a clear misuse by Altana and Brevent of the Business Opportunity and AICF materials. 

Altana and Brevent appealed.

Court of Appeal decision

The Court of Appeal dismissed the appeal. The key aspects of the decision which will be of interest to financial institutions are set out below.

Interpretation of “public domain” in the NDA

Altana and Brevent argued that the High Court had been wrong to interpret “public domain”, in the clauses of the NDA providing for the permitted disclosure of confidential information, in line with the law concerning equitable obligations of confidence. In that context, as established in: (i) Attorney-General, “public domain” has a well-established meaning, referring to information which is "so generally accessible that, in all the circumstances, it cannot be regarded as confidential"; and (ii) Racing Partnership, the true criterion of confidentiality is not secrecy but inaccessibility, and that relative inaccessibility can suffice to make information confidential rather than in the public domain. Altana and Brevent contended that the High Court should have adopted a broader interpretation - namely, any information which was available or had been disclosed without being subject to a duty of confidentiality. The difference was that their interpretation would not require the information to be generally accessible.

The Court of Appeal rejected that argument. It noted that where an expression which has a well-established meaning in the law is used in a professionally drafted contract, the obvious inference, unless the wording of the contract indicates to the contrary, is that the parties intended that expression to bear the well-established meaning (as per Marlborough Knightsbridge Management Ltd v Fivaz [2021] EWCA Civ 989). In the present case, the NDA was based on a professionally drafted template or precedent, so this presumption applied.

The Court of Appeal also found nothing in the NDA suggesting that the parties intended “public domain” to carry a different meaning. The Court of Appeal underlined that the parties had chosen to express the relevant clauses in the NDA using a well-known expression, indicating an intention for that expression to carry its established limits. 

The Court of Appeal also rejected Altana and Brevent’s argument that the High Court’s interpretation would have led to uncertainty as to what information was in the “public domain”, which would render the NDA “unworkable and uncommercial”. In the Court of Appeal’s view, the requirement that information must not be in the public domain if it is to be confidential did not cause undue uncertainty in the context of equitable obligations of confidence. It was true that the test was a fact-sensitive one and that may involve grey areas, but the same is true of many tests in commercial contracts.

Finally, the Court of Appeal rejected Altana and Brevant’s argument that the High Court’s interpretation deprived the non-compete clause in the NDA of all utility. It emphasised that the non-compete clause allowed the parties to compete with each other if the joint venture did not proceed, but prevented Altana and Brevant from competing using any of IX’s confidential information. That restriction did not apply if the use of the information was permitted by the NDA. Thus, the non-compete clause in the NDA still had a meaningful purpose. 

The information was independently known to Altana and Brevent

Altana and Brevent argued that the High Court had failed to consider the clauses of the NDA permitting them to use information already known to them or obtained from other independent sources. 

The Court of Appeal underlined that, given Altana and Brevent had not asked the High Court to make findings about those matters at trial, it was not open to them to complain about the High Court’s failure to do so on appeal. 

Were the Business Opportunity and the AICF materials in the public domain? 

The Court of Appeal noted that the High Court’s decision that the Business Opportunity and AICF materials were not in the public domain were findings of fact, meaning that it would only be open to the Court of Appeal to overturn them if they were plainly wrong. However, it underlined that Altana and Brevent were not able to point to a single document that was clearly in the public domain at the relevant time which disclosed the Business Opportunity, even at a high level of generality. The Court of Appeal added that, even if the High Court had been wrong to hold that the Business Opportunity was not in the public domain, it would not undermine its conclusions about the information within the AICF materials. 

Accordingly, for all the reasons above, the Court of Appeal dismissed Altana and Brevent’s appeal.