Q&As

A non-disclosure agreement (NDA) relates to a merger of two companies. The person receiving the document must not share any information about the merger with anyone else without the permission of the trustees. There is no time limit, nor the section that relates to disclosing information for legal requirements, if it's already in the public domain etc. What would be needed to show that the NDA is unenforceable?

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Produced in partnership with Tim Herbert of Ignition Law
Published on LexisPSL on 10/06/2020

The following Information Law Q&A Produced in partnership with Tim Herbert of Ignition Law provides comprehensive and up to date legal information covering:

  • A non-disclosure agreement (NDA) relates to a merger of two companies. The person receiving the document must not share any information about the merger with anyone else without the permission of the trustees. There is no time limit, nor the section that relates to disclosing information for legal requirements, if it's already in the public domain etc. What would be needed to show that the NDA is unenforceable?

Any obligations in relation to confidential information will endure for as long as that information remains confidential. Accordingly, if the information was not confidential to start with or has ceased to be confidential, then it is unlikely that a Court will uphold undertakings in relation to it.

A non-disclosure agreement (NDA) is intended to protect a party’s confidential information. Generally, an NDA requires a party receiving that information:

  1. not to disclose the information to any other party, and

  2. (quite often) not to use the information other than for a particular purpose

In considering whether information received under an NDA can be disclosed by the receiving party, there are, therefore, two questions to be asked.

The first question is whether the information to be disclosed was confidential in the first place. As to this, in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd it was stated that to be confidential, the information must, apart from contract:

‘…have the necessary quality of confidence about it, namely, it must not be something which is

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