Summary of Court of Appeal (Civil Division) Judgment

Factual and Procedural Background

This is an appeal by the Appellants (Company A and Company B) against an order of Judge Rajah dated 23 June 2025 granting the Plaintiff judgment for breach of confidence and misuse of trade secrets, for the reasons given in the High Court judgment dated 13 February 2025 ([2025] EWHC 299 (Ch)). The Court of Appeal hearing took place before Judge Arnold, Judge Zacaroli and Judge Miles, and the judgment was handed down on 10 July 2026.

Background facts (as found by the High Court and largely adopted by the Court of Appeal): by 2019 Venezuela's sovereign debt was largely in default and US sanctions limited market participation by US persons, while permitting certain secondary-market transactions by non-US persons. The Plaintiff (an advisory and broking boutique specialising in illiquid investments) prepared materials describing an opportunity to exploit undervalued Venezuelan debt via a sanctions‑compliant fund and entered a joint venture with the Appellants to pursue that fund. The parties executed a JV Agreement and a non-disclosure/non-circumvention agreement (the "NDA"). The JV ended without a fund launch; the Appellants subsequently set up their own fund (the ACOF) and the Plaintiff sued for misuse of confidential information and trade secrets (and also alleged copyright infringement, which the High Court dismissed). The principal issue on appeal was whether the confidential information the High Court found misused was in the public domain at the relevant time.

Legal Issues Presented

1. Whether the information the High Court found had been used by the Appellants (the "Business Opportunity" and the package of documents described in the pleadings as the "Fund Detail") was in the public domain at the relevant time.
2. How the expression "public domain" in clauses 1.1(a) and (b) of the NDA should be interpreted for the purposes of contractual confidentiality: whether it bears its established equitable meaning (information so generally accessible that it cannot be regarded as confidential) or a broader meaning (any information disclosed without a duty of confidence).
3. Whether clauses 1.1(c) and (d) of the NDA (independent prior possession/independent development and receipt from a lawful third party) applied to particular items relied on by the Appellants.
4. Whether the High Court was correct, on the facts, to find that the Plaintiff's package of information (the Business Opportunity and the Fund Detail documents) was confidential and had been misused by the Appellants.

Arguments of the Parties

Appellants' Arguments

• The expression "public domain" in clauses 1.1(a) and (b) should be read broadly to mean information available to any person free of a duty of confidence (so that disclosure to even one free recipient defeats confidentiality).
• The information constituting the Business Opportunity and much of the Fund Detail was already in the public domain (relying on articles, market bulletins, selective marketing materials, a broker's trading activity and other evidence) or independently known to the Appellants, so clauses 1.1(a), (b), (c) or (d) applied.
• Specific items relied on included earlier marketing materials circulated by the Plaintiff, a Bloomberg bulletin and other press, an email and attestation from a third‑party broker (Stifel), evidence of a broker purchase through a Luxembourg vehicle (Pictet), and the prevalence of multi‑cell fund structures; the judge should have accepted these as placing the information in the public domain or within clauses 1.1(c)/(d).

Plaintiff's Arguments

• "Public domain" should be given its well‑established equitable meaning (information so generally accessible that it cannot be regarded as confidential); the NDA used that established expression and was a professionally drafted precedent, so that meaning was intended.
• The Business Opportunity (the idea of a sanctions‑compliant fund to exploit undervalued Venezuelan Venezuelan debt) and the Fund Detail documents were confidential: they were the Plaintiff's idea/know‑how, were marked confidential, were circulated only to selected investors, and their collation and presentation were not generally accessible.
• The Appellants had not discharged the burden of proving public domain or independent prior possession; the specific documentary and market materials relied upon did not disclose the Business Opportunity or the Fund Detail as pleaded.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal's analysis proceeded as follows:

• Interpretation of "public domain": the Court accepted the High Court's approach that the expression in clauses 1.1(a) and (b) of the NDA bears its well‑established equitable meaning (information so generally accessible that it cannot be regarded as confidential). The Court relied on authorities establishing the presumption that professionally drafted contract language adopts established legal meanings.
• Application to the facts — the Business Opportunity: the High Court had found (and the Court of Appeal accepted) that while the distressed status of Venezuelan debt and the fact that certain bonds could be traded despite sanctions were known to some specialist investors, the proposition that a sanctions‑compliant fund could be set up to exploit undervalued Venezuelan debt (the Business Opportunity) was not widely known in the market in 2019. The Court treated that finding as a factual/evaluative assessment entitled to deference on appeal.
• Application to the facts — the Fund Detail and other documents: the High Court's Schedule contained detailed findings that a package of documents supplied by the Plaintiff (the Fund Detail and related items) contained Confidential Information within the NDA, were not within the permitted exceptions in clause 1.1, and were misused by the Appellants. The Court of Appeal agreed that these factual findings could not be impugned on appeal on the evidence the Appellants advanced.
• Consideration of Appellants' evidence: the Court considered the categories of material advanced by the Appellants (marketing materials circulated to selected investors, press articles and bulletins, a broker email/attestation, evidence of an individual bond purchase via a broker, and testimony about common fund features). The Court agreed with the High Court that selective, confidential marketing to a limited investor pool and isolated market reports did not show the Business Opportunity or the Fund Detail were generally accessible. Similarly, evidence of isolated trading or knowledge of fund features did not establish prior possession of the specific collated opportunity and documents.
• Burden of proof and credibility: the Court reaffirmed that the Appellants bore the burden of proving public domain. The Court also noted the High Court's adverse credibility finding about the Defendant who led Company A (the judge found that individual not credible unless corroborated by contemporaneous documents) and the favourable credibility finding as to the Defendant associated with Company B; these credibility assessments supported the High Court's conclusions about the source and timing of the Defendants' knowledge.
• Contractual exceptions: the Court rejected the Appellants' contention that clauses 1.1(c) and (d) applied to key items, finding that the specific evidence relied upon did not establish independent prior possession/development or lawful third‑party derivation of the collated Business Opportunity or the Fund Detail.
• Result: the Court concluded that the High Court was correct to find that the Plaintiff's Business Opportunity and the Fund Detail were confidential and had been misused, and that the Appellants had not discharged the burden of proving those items were in the public domain.

Holding and Implications

HOLDING: The appeal was DISMISSED. The Court of Appeal upheld the High Court's judgment granting the Plaintiff relief for breach of contractual confidentiality and misuse of trade secrets (the trade secrets claim standing or falling with the contractual claim).

Implications:

• The High Court's findings that the Plaintiff's Business Opportunity and the package of documents constituting the Fund Detail were confidential under the NDA and had been misused were affirmed.
• The Court confirmed that, where a professionally drafted contract uses an established legal expression such as "public domain" in the context of confidentiality, that expression will generally be given its settled equitable meaning (information generally accessible so as not to be confidential).
• The Appellants bore the burden of proving public domain and failed to discharge that burden in relation to the Business Opportunity and the Fund Detail.
• No new legal principle or binding change to the law of confidence was announced; the Court applied established principles to the facts and upheld the lower court's factual and legal conclusions.

Note: All parties, individual names, counsel and law firms have been anonymised in this summary in accordance with the instructions provided. The summary is confined to matters set out in the provided opinion and does not add or infer facts beyond that text.