Illiquidx Limited v Altana Wealth Limited & Ors

Information disclosed under a confidentiality agreement remains protected unless it is sufficiently accessible to be in the public domain. Selective disclosure to serious potential investors does not necessarily destroy confidentiality. A compilation of public materials may itself be confidential where the collation reflects skill and judgment. Misuse may be inferred where a recipient appropriates the commercial opportunity and uses the confidential material to implement it. For copyright, substantiality is assessed qualitatively by reference to the original features of the work copied, not by comparing the amount taken with the defendant’s work. A director or accessory is liable for procuring a wrong only where they knew the essential facts making the act wrongful.

Illiquidx Limited claimed that Altana Wealth Limited, Brevent Advisory Limited and their principals had misused confidential information and trade secrets disclosed during a proposed joint venture concerning distressed Venezuelan debt. It also alleged copyright infringement arising from the reproduction of parts of a presentation.

The court considered the construction and application of the parties’ non-disclosure agreement, whether the relevant information was in the public domain, whether the Business Opportunity was a trade secret, whether the reproduced material formed a substantial part of the copyright work, and whether the individual defendants were personally liable.

1. Confidential information. The non-disclosure agreement objectively protected information relating to the opportunities and Illiquidx’s ideas and intellectual property. Its reference to the public domain bore its usual meaning in confidentiality law. Information was not generally accessible merely because some components could be found publicly or because selected investors had received confidential marketing materials. The Business Opportunity and its collation in the Fund Detail therefore remained confidential.
2. Misuse. Altana and Brevent appropriated the Business Opportunity by continuing to establish and operate the ACOF after the joint venture failed. They used the same investment rationale, substantially the same range of assets and the confidential analysis concerning fiscal agency and prescription. The evidence showed that this was not an independently developed investment thesis.
3. Trade secrets. The Business Opportunity was secret, commercially valuable because it was secret, and protected by reasonable steps, including confidential markings and selective circulation. Under regulation 3(1) of the Trade Secrets (Enforcement, etc.) Regulations 2018, infringement stood or fell with the breach of confidence. The trade-secret claim therefore succeeded.
4. Copyright. The pleaded copyright work was the 17 July Slides as a whole. The reproduced material consisted largely of material taken from earlier presentations or public sources. The limited original elements in the two slides were not a qualitatively substantial part of the compilation. The copyright claim accordingly failed. The court added that, if necessary, there was no implied licence and the individual defendants had the requisite knowledge for secondary infringement.
5. Personal liability. Applying Lifestyle Equities CV v Ahmed, personal liability required knowledge of the essential facts making the conduct wrongful. Mr Robinson and Mr Kastner believed that the information was not proprietary and lacked the requisite knowledge. They were therefore not personally liable as accessories.

Judgment was given for Illiquidx against Altana and Brevent on breach of confidence and trade secrets. The copyright claim and the personal claims against Mr Robinson and Mr Kastner failed.