Illiquidx Ltd v Altana Wealth Ltd

Illiquidx entered into a joint venture agreement and a non-disclosure agreement (NDA) with the corporate Defendants (Altana and Brevent) in connection with setting up a proposed Venezuelan distressed debt fund. The joint venture ended without a fund being launched. Altana went on to set up its own fund focussed on distressed Venezuelan debt, called ACOF. Illiquidx alleged that this involved the misuse of its confidential information.

The NDA protected very broad categories of information, subject to an exception for information in the “public domain”. Mr Justice Rajah held that “public domain” in the NDA had its usual meaning in the law of confidentiality, and that, although much of the information was publicly available and could be found if one looked, the collation of that information to formulate a rationale for the idea of a sanctions compliant fund to invest in distressed Venezuelan debt was not in the public domain. More detailed material in presentations which had been sent to selected potential investors was not in the public domain as it was not generally accessible to the public, or to other investors who did not receive the presentations, or to competitors.

Altana and Brevent challenged those findings in the Court of Appeal, arguing that (1) the judge should have interpreted the expression "public domain" in the NDA as meaning any information which was available or had been disclosed without being subject to a duty of confidentiality, so that it would suffice if one other person was free in law and equity to use the information; (2) the information was exempt from the duty of confidentiality because it came to the defendants independently; and (3) the circulation of marketing material to investors placed the information in the public domain.

The Court of Appeal (Arnold, Zacaroli and Miles LJJ) dismissed the appeal. It reaffirmed that, where an expression with 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 the expression to bear the established meaning. There was nothing in the NDA to suggest that the parties intended “public domain” to bear a different meaning. The materials which Altana and Brevent had received independently did not contain the information found by the judge to be confidential. There was no basis for the Court of Appeal to interfere with the judge's conclusion that sending marketing materials to selected investors did not put the information into the public domain.

Andrew Green KC and Mark Vinall acted (with Charles Wall) for Illiquidx, instructed by Quinn Emanuel Urquhart & Sullivan UK LLP.

The judgment is available here.