“Public Domain” in NDAs Means “Generally Accessible”: Narrowing the Public-Domain Carve-Out for Confidential Investment Concepts

Case: IlliquidX Ltd v Altana Wealth & Ors Neutral citation: [2026] EWCA Civ 874
Court: England and Wales Court of Appeal (Civil Division) (Arnold LJ, Zacaroli LJ, Miles LJ)
Date: 10 July 2026
Appeal from: [2025] EWHC 299 (Ch) (Business and Property Courts, Intellectual Property List)

1. Introduction

The claim arose from a failed joint venture to launch an OFAC-sanctions-compliant investment fund targeting distressed Venezuelan debt. The claimant (an advisory/broking boutique specialising in illiquid investments) provided presentations and other materials to the first and fourth defendants (an investment manager and its consultancy vehicle) under a non-disclosure and non-circumvention agreement (“NDA”). After the joint venture ended, the first and fourth defendants launched their own Venezuelan distressed-debt fund.

The High Court found breach of contractual confidence (and a parallel “trade secrets” claim which the parties accepted rose or fell with the contractual analysis). The core appellate issue was whether the information the trial judge found had been misused was excluded from protection because it was in the “public domain” within clause 1.1(a) of the NDA.

Key issues

• Construction: What does “public domain” mean in an NDA carve-out—information merely disclosed without confidentiality restrictions, or information that is generally accessible?
• Application: On the facts, was the “Business Opportunity” and the key “Fund Detail” information in the public domain at the relevant time?
• Appellate posture: How readily can a Court of Appeal disturb a trial judge’s evaluative finding on whether information was “public domain”?

2. Summary of the Judgment

The Court of Appeal dismissed the appeal. It held that:

• The expression “public domain” in clauses 1.1(a) and (b) bore its well-established confidentiality-law meaning: information “so generally accessible that… it cannot be regarded as confidential”.
• The appellants failed to show that the “Business Opportunity” (framed by the judge as the opportunity to set up a sanctions-compliant fund to exploit undervalued Venezuelan debt) or the relevant package of “Fund Detail” information was in the public domain.
• Limited circulation of teaser materials to selected potential investors—marked confidential and not generally disseminated—did not make the information generally accessible.
• Arguments based on clauses 1.1(c) and (d) (prior possession/independent development; third-party sources) largely failed procedurally and substantively.

3. Analysis

3.1 Precedents cited (and how they were used)

(a) The meaning of “public domain” and the relativity of confidentiality

• Attorney-General v Observer Ltd [1990] 1 AC 109 (Lord Goff at 282): used as the canonical statement that information is in the public domain when it is “so generally accessible” that it cannot be confidential.
  The Court of Appeal treated this as the settled benchmark which “public domain” presumptively imports, even in contract.
• Franchi v Franchi [1967] RPC 149 (Cross J at 152–153): cited for the proposition that confidentiality is relative, not absolute.
  This supported the trial judge’s and appellate court’s emphasis that partial disclosure or limited circulation does not necessarily destroy confidentiality.
• Racing Partnership Ltd v Done Bros (Cash Betting) Ltd [2020] EWCA Civ 1300, [2021] Ch 233 (Arnold LJ at [67]): relied on for the formulation that the true criterion is “inaccessibility” rather than perfect secrecy.
  This framed the “public domain” inquiry as one of accessibility in practice, not theoretical discoverability.

(b) Contractual interpretation: legal terms presumed to carry legal meanings

• Falkiner v Commissioner of Stamp Duties [1973] AC 565 (Lord Simon at 577F–H): applied for the principle that where a term has a well-established legal meaning, its use in a professionally drafted instrument suggests that meaning was intended.
• Infiniteland Ltd v Artisan Contracting Ltd [2005] EWCA Civ 758, [2006] 1 BCLC 632 (Carnwath LJ at [88]): reinforced the same interpretive presumption in commercial drafting.
• Triple Point Technology Inc v PTT Public Co Ltd [2021] UKSC 29, [2021] AC 1148 (Lady Arden at [52]): cited as Supreme Court authority supporting the orthodox approach to construing contractual language in its legal and commercial context.
• Marlborough Knightsbridge Management Ltd v Fivaz [2021] EWCA Civ 989, [2021] 1 WLR 4345 (Arnold LJ at [11]): further authority for the proposition that courts assume legally freighted words are used deliberately.

(c) Burden of proof on “public domain” exceptions

• Force India Formula One Team Ltd v Aerolab SRL [2013] EWCA Civ 780, [2013] RPC 36 (Lewison LJ at [59]): cited for the rule that the defendant bears the burden of showing information was in the public domain (in the relevant sense).
  This was decisive in rejecting arguments that the claimant had to prove further circulation had not occurred.

3.2 Legal reasoning

(1) Construction of “public domain” in the NDA

The appellants argued that “public domain” should mean any information available without confidentiality restrictions (even if only to one recipient), because the NDA’s definition of “Confidential Information” was very broad. The Court of Appeal rejected that interpretation and upheld the trial judge’s approach, for several linked reasons:

• Presumption of legal meaning: “Public domain” is a term with a settled meaning in confidentiality law; the NDA was professionally drafted; nothing in the text displaced that meaning.
• No textual support for a “single free recipient” test: the contract contained no language indicating that any non-confidential disclosure (however limited) would suffice.
• “Broad definition therefore broad carve-out” is a non sequitur: the breadth of the carve-out depends on the words chosen, not on the breadth of the definition.
• Commercial workability: fact-sensitive standards are common; “public domain” as general accessibility is workable and familiar.
• Coherence with other clauses: the court rejected the suggestion that this construction robbed other provisions (notably clause 3(b)) of utility; it also considered clause 1.1(d) would become difficult to apply on the appellants’ approach.

(2) Application: was the information “generally accessible”?

The Court of Appeal treated the trial judge’s “public domain” conclusions as findings of fact or evaluative assessments entitled to appellate restraint. It then held that the appellants had not identified a document plainly in the public domain that actually disclosed the protected package of information.

(a) Limited investor “teasers” did not destroy confidentiality

The court upheld the trial judge’s view that pre-JV and JV marketing materials—although circulated to multiple potential investors—remained “relatively secret” where:

• they were marked “Strictly Private & Confidential” / “strictly confidential” / “private and confidential”;
• they were distributed selectively to serious potential investors for fundraising;
• they were not posted on websites or pushed to broad mailing lists; and
• the recipients were not the claimant’s competitors and were not intended to be.

Critically, the appellants’ attempt to argue “we do not know that recipients did not further circulate it” failed because it inverted the burden of proof: the appellants had to prove general accessibility, not the claimant to prove containment.

(b) Public reporting on Venezuelan bonds did not equate to disclosure of the protected “concept package”

A Bloomberg bulletin describing overseas buying interest and depressed pricing was the appellants’ strongest public-domain evidence. However, the Court of Appeal held it did not compel reversal of the judge’s conclusion that the particular opportunity/package (as found) was not widely known, still less that the detailed fund structuring and rationale within the “Fund Detail” documents was generally accessible.

(c) Distinguishing “some bonds are tradable” from “a fund strategy/package is generally accessible”

The trial judge had found that the list of 38 tradable bonds (from publicly available OFAC materials) was in the public domain, but nonetheless held the broader fund concept and associated structuring/rationale were not. The Court of Appeal found no inconsistency: public availability of certain building blocks does not imply that the relevant compilation, structuring, and investable strategy package was generally accessible.

(3) Clauses 1.1(c) and 1.1(d): prior possession/third-party sources

The appellants also sought to rely on:

• third-party broker communications about sanctions-compliant trading;
• generic familiarity with multi-cell structures; and
• a personal bond purchase through a Luxembourg vehicle.

The Court of Appeal rejected these points both because they were not properly developed at trial and because, in substance, they did not amount to prior possession of the relevant protected package (or demonstrate that the alleged misuse derived from an unconfidential third-party source).

3.3 Impact

(1) Drafting and litigation of NDAs

• Narrower “public domain” carve-outs by default: if parties intend “public domain” to mean “known to any person not bound by confidence”, they should say so expressly (for example, by adding “or otherwise lawfully available to the receiving party without restriction” or a bespoke definition).
• Selective circulation can remain confidential: fundraising “teasers” sent to dozens or hundreds of investors may remain outside the “public domain” if dissemination is controlled and directed, and the material is not generally accessible.
• Burden matters: defendants asserting the exception must prove general accessibility at the relevant time; pointing to the possibility of onward circulation is unlikely to suffice.

(2) Protecting “investment ideas” and compilations

The decision supports the enforceability (at least contractually) of confidentiality protection over an “idea/concept” and the value-bearing collation of information into an investable strategy and structure—particularly where the contract deems such concepts to be “Confidential Information” or “Intellectual Property” for NDA purposes.

(3) Appellate restraint on “public domain” findings

The Court of Appeal emphasised that whether information is “public domain” (in the relevant sense) is fact- and context-sensitive. Without a clearly dispositive public document, appellants face a high hurdle in overturning trial findings.

4. Complex Concepts Simplified

“Public domain” (in confidentiality law)

Confidentiality is “relative” (not absolute secrecy)

Information can be shared with a limited audience for a limited purpose (e.g., selected potential investors) and still remain confidential if it is not broadly accessible to the market—especially to competitors.

“Inaccessibility” as the real test

Courts focus on whether the information was practically accessible in the relevant community. If it would take unusual effort, specialist knowledge, or non-obvious collation to assemble the package, it may still be treated as confidential even if some ingredients are publicly obtainable.

5. Conclusion

IlliquidX Ltd v Altana Wealth & Ors confirms that, in professionally drafted NDAs, “public domain” will ordinarily carry its established confidentiality-law meaning: general accessibility. The decision also illustrates that controlled circulation of investment marketing materials to selected investors, even in significant numbers, does not necessarily place an investment concept or its detailed structuring “package” into the public domain. For future disputes, the case underscores the importance of (i) precise drafting if parties want a broader exception, and (ii) concrete evidence of genuine market-wide accessibility when relying on a “public domain” carve-out.