Your commercial partner breaches your NDA - what can you do?

Let's say you're contemplating a commercial deal with another organisation - you may choose to sign a mutual NDA or non-disclosure agreement designed to protect and safeguard the value commercial information that you provide. If negotiations go well, there is less chance of there being a problem, but if they break down, the risk of the misuse of your information is likely to be of greater concern. In Vercoe v Rutland Fund Management Ltd (read full case: http://www.bailii.org/ew/cases/EWHC/Ch/2010/424.html) the High Court considered the remedies available to claimants seeking redress for breach of an NDA. V lost out on a valuable acquisition that was ultimately completed by RFM without V's involvement, despite V introducing the opportunity to RFM in the first place. Instead of the usual claim in damages, instead V sought entitlement to an account of profits made by RFM; recovery of damages would have been much less significant. The judge found that, in the circumstances, an account of profits was not an appropriate remedy for V - the parties were simply in a contractual relationship in relation to the opportunity which had been identified by V - there was no fiduciary relationship between the two companies. As such, the judge found damages was appropriate in the circumstances. Whether or not an NDA should be signed and the specific terms which are to apply should be high on the priority list and given adequate consideration where confidential information or valuable trade secrets may be at stake. (c) Hamilton Mackintosh, 2012