Two parallel systems

Confidentiality under English law runs on two tracks. The equitable duty of confidence arises whenever information with the necessary quality of confidence is imparted in circumstances importing an obligation of confidence - it needs no contract and can bind third parties who receive the information knowing it is confidential, persisting as long as the information stays secret. The contractual NDA sits alongside it, giving certainty, tailored scope, defined duration, and damages as of right - but bounded by privity and by its term.

The two complement each other: the contract gives precision, equity fills the gaps (third parties, and the period after the contract ends). The supporting articles cover the dual system, defining confidential information, the full range of NDA obligations, trade secrets, remedies, duration, and the carve-outs and cross-border issues.

The definition is the agreement

An NDA is only as strong as its definition of confidential information. Too broad and a court may treat it as protecting nothing (or, in some jurisdictions, as a disguised non-compete); too narrow and it misses oral disclosures or unforeseen information. The settled best practice is a hybrid: enumerated categories, a marking and oral-confirmation mechanism, and a reasonableness qualifier - plus carefully drafted carve-outs.

Get this wrong and the rest of the NDA, however well-drafted, protects the wrong thing or nothing at all.

Trade secrets need special treatment

The statutory trade-secret regime (the Trade Secrets Regulations 2018, and equivalents abroad) is a distinct, narrower layer that protects only information that is secret, commercially valuable because secret, and subject to reasonable steps to keep it secret. A great deal of genuinely confidential information falls outside it - which is exactly what the contractual NDA is for.

Crucially, the statutory protection turns on reasonable steps and on the information remaining secret. Time-limiting trade-secret protection in an NDA can paradoxically destroy it, so trade secrets should be treated separately, with perpetual obligations.

Carve-outs are not optional

Confidentiality obligations cannot override mandatory disclosure rights. NDAs must carve out compelled disclosure and the growing web of whistleblower and victim protections - the Public Interest Disclosure Act 1998, the Victims and Prisoners Act 2024, and, for US-facing NDAs, the DTSA whistleblower immunity and the SEC's anti-gag rule. And where the information includes personal data, data-protection law takes precedence over contractual confidentiality.

A clause that purports to silence a protected disclosure is not just unenforceable in that respect - it can attract regulatory penalties and professional-conduct consequences. Build the carve-outs in deliberately.

Remedies, duration, and enforcement

Because the genie does not go back in the bottle, the primary remedy for breach of confidence is an injunction - including springboard relief to strip out an unfair head-start - while damages are notoriously hard to quantify, so the measure must be chosen with care. Duration should usually be bifurcated: a fixed term for ordinary confidential information and an indefinite term for trade secrets. And for cross-border deals, the enforcement forum (and arbitration) should be planned at the drafting stage.

The thread is that confidentiality protection is built, not assumed: the right definition, the right obligations, the right carve-outs, and a remedy and forum that will actually work when information leaks.

Use at the desk

Practical checklist

  • Rely on both the equitable duty and the contractual NDA - and plead both in any dispute.
  • Define confidential information with a hybrid approach (categories + marking + reasonableness) and proper carve-outs.
  • Treat trade secrets separately, with perpetual obligations and documented reasonable steps.
  • Build in compelled-disclosure and whistleblower/victim carve-outs (PIDA 1998; Victims and Prisoners Act 2024; DTSA and SEC for US deals).
  • Where personal data is involved, give data-protection law precedence and use a DPA, not just an NDA.
  • Plan remedies (injunctions) and cross-border enforcement (forum, arbitration) at the drafting stage.

This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.

Product demo

Use the guide for context. Use Veqtor for the Word documents.

Watch Claude compare negotiation drafts and create a separate Word document with proposed tracked changes.

See Veqtor work with Word redlines

Continue reading

Dual systemConfidentiality & NDAsEquitable and contractual confidentiality

How the equitable duty of confidence works alongside the contractual NDA, why it binds third parties, and the value of pleading both.

4 min readDefinitionConfidentiality & NDAsDefining confidential information

Why the definition is the most important NDA provision, the broad/specific/hybrid approaches, the Faccenda classes, and the standard carve-outs.

4 min readObligationsConfidentiality & NDAsNDA types and obligations

Unilateral, mutual, and M&A NDAs, the non-use and return obligations, residual knowledge and non-circumvention, clean teams, and the AI-training risk.

4 min readTrade secretsConfidentiality & NDAsTrade secrets and NDAs

How the Trade Secrets Regulations 2018 work, the gap with confidential information, the conscience-based liability test, and the US and EU positions.

4 min readRemediesConfidentiality & NDAsRemedies for breach of confidence

Why injunctions (including springboard relief) are the primary remedy, the difficulty of quantifying damages, negotiating damages, and the remedies clause.

4 min readDurationConfidentiality & NDAsNDA duration and cross-border enforcement

Why perpetual confidentiality is enforceable in England but risky in the US, the bifurcated-duration approach, and enforcing judgments and awards abroad.

4 min read