When is confidential information in the "public domain"? Key takeaways from Illiquidx v Altana Wealth

In Illiquidx Ltd (IX) v Altana Wealth Ltd (Altana) and Others (2026), the Court of Appeal unanimously held that "public domain" carries its well-established meaning in the law of confidence: that is, information that is generally accessible to the public. A professionally drafted non-disclosure agreement (NDA) will be presumed to use the expression in that sense unless the contract clearly provides otherwise.

The decision offers important practical guidance for anyone drafting, advising on, or relying on NDAs in a commercial context.

The facts

IX approached Altana and Brevent Advisory Ltd (Brevent) to establish a joint venture fund investing in distressed Venezuelan sovereign debt. US sanctions had depressed bond prices, but IX had identified that non-US persons could still trade certain bonds through Euroclear without breaching the sanctions regime. The parties entered into a joint venture agreement and an NDA, under which IX shared confidential information about its investment strategy, fund structure, and supporting analysis. 

The joint venture later collapsed. IX alleged that Altana and Brevent went on to launch a competing fund, using IX's confidential information in breach of the NDA. 

At first instance, Mr Justice Rajah found in IX's favour on its breach of confidence and trade secrets claims but dismissed a separate copyright infringement claim. Altana and Brevent appealed. 

What does "public domain" mean?

The NDA defined "confidential information" broadly, covering information "of whatever nature" relating to IX or the investment opportunities it introduced. However, the drafting carved out information that was already in the "public domain." 

Altana and Brevent argued that "public domain" should be given a wide meaning: essentially, any information that had been disclosed or was available without being subject to a duty of confidentiality (i.e., it would be enough if one other person was free to use the information). On this reading, information shared with potential investors during the fundraising process would lose protection simply because it had been disclosed to a third party. 

The Court of Appeal rejected this argument. Lord Justice Arnold, giving the lead judgment, held that "public domain" is a term of art with a well-established meaning in the law of confidence. Where a professionally drafted contract uses such a term, there is a strong presumption that the parties intended it to bear that established meaning. Sophisticated parties who wished to adopt a different or broader definition had the opportunity to do so; in other words, their choice not to is itself significant. 

Generally accessible, not merely accessed

The Court's reasoning draws an important distinction. Information is in the "public domain" when it is generally accessible to the public at large. It is not sufficient that the information has been accessed by, or disclosed to, some people. If only a limited group has received the information (e.g., an investor pool), the information may still retain its confidential character. The Court noted that the NDA contemplated disclosure to investors as part of the "Permitted Purpose," which meant that sharing information for fundraising did not amount to placing it in the public domain.

Broad definition, broad exception? Not necessarily

Altana and Brevent also argued that, because the NDA's definition of confidential information was broad, any relevant carve-outs should also be construed on the same basis. 

Arnold LJ rejected this as a non-starter. Well-advised parties negotiating a broad definition of confidential information would be expected to adjust the exceptions to whatever scope they considered appropriate. And if they chose to express those exceptions using a well-known term of art, the logical inference is that they intended that term to carry its established meaning.

Practical implications

Parties who want a broader "public domain" exception need to say so expressly. The default position for a professionally drafted NDA is that "public domain" means generally accessible.

Information shared with potential investors during a fundraising process, under appropriate confidentiality markings, does not thereby enter the public domain. Courts will take into account standard industry practices around the treatment of private and confidential materials.

The judgment also confirms that a business concept can be protected as confidential information under an NDA, even where the underlying market conditions are observable. What the NDA protected was not knowledge of the relevant sanctions regime, but IX's market insight and strategy.

The full judgment is available on the National Archives' service.