Confidentiality & Non-Disclosure Agreements
Our experienced Confidentiality Barristers are experts in all aspects of confidentiality law as it applies in business and non-business relationships. They are regularly asked to advise in contentious and non-contentious confidentiality cases, and have sound knowledge of the specialist tribunals and courts that they appear before.
Confidentiality & Non-Disclosure Law
A confidentiality agreement, also known as a Non-Disclosure Agreement (“NDA”) is an agreement between parties outlining confidential material; knowledge; or information that the parties wish to share within the group only. This enables business to share material; knowledge; and information, while protecting business secrets and avoid confidential information coming to the attention of competitors. As a result, the parties enter into a confidential relationship. If there is no NDA, it can be difficult to prove that information disclosed had the requisite ‘quality of confidence’. The ‘disclosing party’ must show that the information disclosed his/her detriment was done, where an obligation of confidentiality can be assumed, and that there has been unauthorised use of the information.
Our Commercial Barristers regularly advise clients in many sectors on confidentiality and non-disclosure agreements. Whether it is prior to negotiations to enter into an agreement to acquire business assets; or during negotiations to sell goods or services; or post the employment of a key member of staff or talent, our confidentiality experts have the necessary experience to review; draft and advise on appropriate confidentiality agreements and non-disclosure agreements to protect a defined position.
Confidentiality
The originator of the confidential information usually the owner of the information and the trade secrets that it contains. Confidentiality Agreements confirm this in writing and are usually deployed in conjunction with, or included in, employment or talent hire contracts; joint venture contracts; or multiparty collaboration arrangements, so that the employee, talent, partners and associates cannot use or misuse these secrets and information. Usually, employers will require certain employees to sign a confidentiality agreement prior to starting work. The parties could agree to sign their confidentiality agreement at the start, during or at the end of their relationship.
However, not all information is confidential. What may be considered confidential in an employment context includes: the employer’s reasonable belief that the information is confidential; and if disclosures would be injurious to the business/be advantageous to their rivals. These answers must still be qualified vis-à-vis the particular business, trade, or industry concerned.
Non-Compete
In the same way, a non-compete agreement can prevent one party from unfairly competing with the disclosing party due to the material; knowledge; or information which that party has acquired as a result of the disclosure. However, employers must be wary of not preventing whistle-blowers from making ‘protected disclosures’. These include disclosures of information that, in the reasonable belief of the employee making the disclosure, is made in the public interest. For example, this may relate to an actual or potential criminal offence; or the breach of the health and safety of a fellow employee, or the public at large.
Non-Disclosure
NDAs are commonly used between businesses, as well as between businesses and individuals prior to to business acquisitions and partnerships. NDAs are prevalent when sharing ideas in the intellectual property sector and can affect businesses specialising in specific sectors such as SaaS; food production; and fashion design. In these and many other sectors, exchanging ideas with potential business partners and while negotiating business deals is part of the usual course of business. Yet a significant risk remains if these discussions are not robustly protected. An NDA could give protection where one party may need to disclose confidential information such as formulas, recipes, sales and marketing information, trade secrets, technical designs and drawings, or other similar information which would give the other party an unfair advantage if they used if it for purposes that were not intended, or disclosed it to a third party. It is therefore prudent that an appropriate NDA is entered into before sensitive information is disclosed.
Mercantile Barristers have expertise in providing advice and representation in confidentiality agreements to clients, whether they are businesses, individuals or solicitors. We have particular experience in advising clients on non-disclosure; non-compete; and confidentiality agreements. We also have experience in taking instructions from solicitors and representing their clients in proceedings concerning breach of confidence before the county court; High Court; Court of Appeal and Supreme Court.
If you require advice contact our Commercial Litigation barristers today by filling in our Enquiry Form; emailing us at enquiries@mercantilebarristers.com; or by telephone on 0203 034 0077 and we would be happy to assist.
How Our Process Works
You can call, email, or fill out an enquiry form to tell us about your case. One of our specialist clerks will speak with you to make the arrangements to advance your case.
Our specialist clerk will match you with the barrister with the expertise to deal with all aspects of your case. They will also obtain and organise the papers the barrister will have to consider in your case.
Our clerk will agree the fee for your consultation with the barrister beforehand. The clerk will then arrange a convenient time for you to have the consultation by video call, telephone or in person.
In the consultation the barrister will assess your legal position, devise a legal strategy, and give you appropriate advice on the necessary next steps to achieve your objective.
FAQs
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