A Non-Disclosure Agreement is the single most common commercial contract in British business — and one of the most frequently drafted badly. An NDA protects confidential information shared between parties: trade secrets, pricing models, customer lists, investor decks, product roadmaps, clinical data, source code, settlement terms. Whether you are pitching an idea to a manufacturer, onboarding a freelance developer, opening M&A discussions, or exchanging proprietary data with a partner, the NDA is the shield. Get it right and you can obtain injunctions and damages against a leaker. Get it wrong and the court will unpick it in minutes. Build your case with Chris. Make your claim. Win your day.
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What an NDA Actually Does
An NDA — also called a confidentiality agreement — is a contract under English law. It creates enforceable duties between a discloser (sharing information) and a recipient (receiving it). The discloser gives the recipient access to defined material in exchange for a binding promise to keep it secret, use it only for an agreed purpose, and return or destroy it when the relationship ends.
If the recipient breaches, the discloser can seek damages, an injunction restraining further use or publication, an account of profits where the recipient has monetised the information, and delivery-up or destruction of the material. The rules are the shield. The NDA is the paper on which they are written.
One-Way vs Mutual NDAs
One-way NDA. Only one party discloses; only that party is protected. Typical: founder pitching to investor, employer inducting employee, principal retaining consultant.
Mutual NDA. Both parties disclose; both are protected. Typical: two companies exploring JV, M&A early talks, technology partnerships.
Choosing the wrong structure creates asymmetric risk. Read the recitals and the definition of “Confidential Information” carefully.
The Essential Clauses
1. Parties and recitals
Full legal names, registered numbers, addresses. Use the Companies House registered name. The recitals describe the “Purpose” (e.g. “evaluating a potential investment”). The Purpose limits permitted use later.
2. Definition of Confidential Information
The load-bearing clause. Cover: information disclosed in writing and marked confidential; information disclosed orally and confirmed as confidential in writing; and information a reasonable person would understand to be confidential. Include technical, commercial, financial, strategic, personnel, customer data expressly.
3. Permitted use
Recipient may use the information only for the Purpose. Any other use is a breach.
4. Obligations of confidentiality
Keep it secret. Same degree of care as own confidential information, minimum reasonable care. Limit access to “Permitted Recipients” — each bound by equivalent obligations.
5. Standard exceptions
Information which: (a) is public through no fault of recipient; (b) was lawfully held before disclosure; (c) is independently developed; (d) is lawfully obtained from a third party; (e) is required to be disclosed by law.
6. Term and duration
Two periods: term during which disclosures may be made, and longer period during which obligations survive. 3–5 years for general commercial; indefinite for trade secrets. Courts strike down unreasonably long restraints.
7. Return or destruction
On request or termination, return all confidential information, destroy copies including electronic, certify compliance in writing.
8. Remedies and injunctive relief
Acknowledge that damages may be inadequate and entitlement to seek injunctive relief without posting security.
9. No licence, no warranty
Disclosure grants no IP licence beyond the Purpose. Information is “as is”.
10. Governing law and jurisdiction
“Governed by the laws of England and Wales. Exclusive jurisdiction of the courts of England and Wales.” Non-negotiable for UK matters.
11. Boilerplate
Entire agreement, no assignment without consent, severance, no waiver, counterparts, notices, Contracts (Rights of Third Parties) exclusion.
Common Mistakes That Make NDAs Unenforceable
- Definition too vague. “All information exchanged” is a shrug, not a definition.
- Term unreasonably long. 10-year restraint on information with 12-month commercial life will be read down.
- No permitted use clause. Without it, the recipient can use the information for anything provided they keep it secret.
- Missing exceptions. Omitting public-domain or independently-developed carve-outs makes it look oppressive.
- No Permitted Recipients clause. Enforcement against individual leakers becomes hard.
- Wrong execution. Signed without authority; company name wrong; no date.
- Missing governing law. Invitation to a jurisdictional fight.
NDAs and the Law — What They Cannot Do
Protected disclosures — whistleblowing
Section 43J of the Employment Rights Act 1996 renders void any contractual term preventing a protected disclosure. An NDA cannot silence a whistleblower acting in the public interest.
Criminal conduct
An NDA cannot conceal criminal activity, obstruct justice, or prevent reports to police or regulators.
Sexual harassment, discrimination, and the SRA Warning Notice
The SRA Warning Notice is explicit: NDAs must not prevent anyone from reporting misconduct to police, regulators, or healthcare professionals. Carve-outs for protected disclosures, regulatory reporting, medical support, and reporting to police must be clear on the face of the agreement. Equality Act 2010 and Victims and Prisoners Act 2024 reinforce this.
Information already public
Cannot re-secret something already in the public domain.
Unreasonable restraint of trade
Trade secrets are protectable; general know-how is not.
How to Get It Signed Properly
Simple contract. Signed by someone with authority for each party. Electronic signatures valid under the Electronic Communications Act 2000. DocuSign, Adobe Sign accepted.
Deed. For the 12-year limitation period (rather than 6), execute as a deed. For a company: two directors, or director plus company secretary, or single director with witness. Label: “Executed as a deed.”
Sequence. Send the signed NDA BEFORE any confidential information passes. Once the cat is out of the bag, the NDA has nothing to protect.
Enforcement — What to Do When Breached
- Preserve evidence. Screenshots, emails, metadata, witness accounts. Log who saw what and when.
- Send a letter before action. See our commercial LBA guide.
- Consider urgent injunctive relief. American Cyanamid test: serious issue to be tried, damages inadequate, balance of convenience favours applicant.
- Quantify loss. Negotiating-damages basis, lost profits, or account of profits.
- Data protection overlay. If personal data, UK GDPR and DPA 2018 apply. Consider an ICO complaint.
The Rules That Apply
- Contract law (common law) — offer, acceptance, consideration, intention, certainty.
- Contracts (Rights of Third Parties) Act 1999 — usually excluded.
- PIDA 1998 / ERA 1996 s.43J — whistleblower protection.
- Equality Act 2010 — prevents NDAs suppressing discrimination claims.
- Victims and Prisoners Act 2024 — victims can seek support and report to authorities.
- UK GDPR and DPA 2018 — where personal data is involved.
- Civil Procedure Rules — Part 25 (interim remedies), Part 7 (claims).
- Limitation Act 1980 — 6 years simple contract; 12 years deed.
- SRA Warning Notice on NDAs — persuasive benchmark.
How Chris Can Help
An NDA is simple to describe and surprisingly easy to get wrong. Most templates online are 30 years old, never updated for the SRA Warning Notice, missing modern carve-outs, drafted for wrong jurisdictions. Chris drafts your NDA from scratch to your facts, with the clauses the English court expects.
Tell Chris who the parties are, what information you are sharing, what Purpose you want to restrict it to, one-way or mutual, term, simple contract or deed. Upload drafts, term sheets, related documents. Chris returns a bespoke NDA with signature page and execution notes.
Don’t know exactly which clause you need? Tell Chris what you are trying to protect — upload anything you already have, describe your situation — Chris drafts the NDA, the wider contract package, or the letter before action if one has already leaked. Whatever your case requires. £30 → Litigator.
Complex confidentiality? Multi-party JV, M&A data room, cross-border, post-employment dispute? Hybrid gives you concierge drafting with qualified reviewer sign-off.
7-day money-back guarantee. Not happy with the draft before you sign and send? We refund. We are miracle-makers, not miracle-workers — if the underlying merits are weak, no drafting saves a bad case.
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Frequently Asked Questions
Are NDAs legally binding in the UK?
Yes. An NDA is an ordinary contract under English law. Provided the usual contractual requirements are met, it binds the parties and is enforceable through damages, injunctions, and equitable remedies.
How long should an NDA last?
Match the commercial life of the information. 3–5 years for general commercial. Trade secrets may justify indefinite. Unreasonably long terms risk being read down.
Can an NDA stop someone reporting a crime or whistleblowing?
No. Section 43J ERA 1996 voids any term preventing protected disclosure. NDAs cannot silence whistleblowing or conceal criminal conduct.
One-way or mutual?
One-way if only one party discloses. Mutual if both do. Signing the wrong form leaves you bound with no reciprocal protection.
Simple contract or deed?
Simple contract for most NDAs. Deed for 12-year limitation or where consideration is uncertain. Deed requires strict formalities.
Are electronic signatures valid?
Yes. Valid for simple contracts and, with proper attestation, for deeds. DocuSign, Adobe Sign accepted.
What if my NDA is breached?
Damages, injunction, delivery-up or destruction, account of profits. Move quickly. Preserve evidence, send a letter before action, consider urgent High Court application.
Can I use a free NDA template?
You can — but most are outdated, US-jurisdiction, missing SRA carve-outs, silent on UK execution. A bespoke English-law NDA with Chris costs £30.
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