Can an NDA Be Enforced in the UK?

NDAs are only as useful as their enforceability. A poorly drafted or overreaching NDA may be unenforceable in the UK. This guide explains what makes an NDA valid, when UK courts will enforce one, and what limitations apply.

What Makes an NDA Legally Binding in the UK?

For an NDA to be enforceable in England and Wales, it must meet the standard requirements for a legally binding contract:

• Offer and acceptance: Both parties must agree to the terms
• Consideration: Something of value must be exchanged — in a business NDA, the exchange of confidential information itself typically constitutes consideration
• Intention to create legal relations: The parties must intend the agreement to be legally binding
• Certainty of terms: The scope of confidential information must be defined clearly enough to be enforceable
• Signatures: Both parties must sign the document

When Will UK Courts NOT Enforce an NDA?

• The information covered has already entered the public domain
• The NDA is unreasonably wide in scope or duration
• The NDA attempts to prevent the disclosure of illegal activity (whistleblowing)
• The NDA was signed under duress or without adequate consideration
• The NDA conflicts with statutory rights (e.g. NDAs cannot prevent workers from making protected disclosures under the Public Interest Disclosure Act 1998)

What Happens if an NDA is Breached UK?

If a party breaches an NDA, the affected party can seek an injunction to prevent further disclosure, claim damages for financial loss caused by the breach, and in some cases seek account of profits made by the breaching party through misuse of the information.