If someone has broken an NDA you relied on, you have legal rights — but exercising them effectively requires knowing which remedy applies, how to build your evidence, and whether the breach is worth the cost of pursuing. This guide walks through the process under English law.
NDASafe is a document preparation service, not a law firm. Our templates are legally reviewed against applicable UK law at the point of release, but every situation is different. Where significant value, unusual risk or a cross-border element is involved, take independent legal advice before you sign.
Step 1: confirm you actually have a breach
Not every unwanted disclosure is an enforceable breach. Before taking action, work through three questions:
First, is the NDA validly signed and still in force? An agreement that was never signed by the other side, or whose term has expired, creates no current obligations.
Second, does the information they disclosed fall within the NDA's definition of confidential information? Most NDAs exclude information that was already in the public domain, already known to the recipient, or independently developed. Check whether any exclusion applies.
Third, is the disclosure one the agreement actually prohibits? NDAs typically permit disclosure to professional advisers (lawyers, accountants) on equivalent terms, and to employees who need to know. Permitted disclosures are not breaches.
The remedies available to you
| Remedy | What it does | When it applies |
|---|---|---|
| Injunction (interim) | Court order stopping ongoing or imminent disclosure | When disclosure is continuing or about to happen; must act quickly |
| Injunction (final) | Permanent prohibition on disclosure or use | Granted after a full trial; prevents future breaches |
| Damages | Compensates you for financial loss caused by the breach | When you can quantify lost business, diminished value or costs |
| Account of profits | Forces recipient to pay over any profit made from the breach | When their gain is clearer than your loss |
| Return / destruction order | Requires return or destruction of confidential information | Typically sought alongside an injunction |
Gathering and preserving evidence
Evidence is the foundation of any enforcement action. Collect it as soon as you become aware of the breach — delay can mean content disappears.
- The signed NDA — the agreement itself, with both signatures. If it was signed electronically, include the audit trail from the e-signature platform.
- Proof of what was shared and when — emails, data-room logs, meeting minutes or file-transfer records showing what confidential information the other party received.
- Evidence of the breach — screenshots with timestamps of any public posts, published materials, investor decks or product releases that reproduce your confidential information; messages in which the breach is admitted.
- Witness statements — accounts from anyone who saw the disclosure or received the information from the other party.
- Financial records — evidence of lost revenue, a lost deal, diminished competitive position, or costs you incurred because of the breach.
Cease-and-desist: the first formal step
A cease-and-desist letter is often the first formal step. It puts the other party on notice, identifies the breach specifically, demands they stop and return or destroy any copies, and preserves your right to seek further relief. Even if you ultimately go to court, a letter shows you gave them the opportunity to remedy the situation first.
The letter should be factual and measured, not threatening. Disproportionate or inaccurate demands can undermine your credibility and, in extreme cases, be characterised as harassment.
Injunctions: stopping an ongoing breach quickly
If confidential information is being actively disclosed — published on a website, circulated to competitors, used to tender for your clients — an interim injunction from the High Court can stop it fast. An application without notice to the other side (a without-notice injunction) is available in genuine emergencies.
To obtain an interim injunction, you must satisfy the American Cyanamid test: there is a serious question to be tried, damages would not be an adequate remedy, and the balance of convenience favours the order. You will need to give the court an undertaking in damages — promising to pay the other side's losses if the injunction later turns out to have been wrongly granted.
Speed matters. Delay in applying for an injunction is treated by courts as evidence that the situation is not truly urgent, which weakens the application.
Damages and account of profits
Damages for breach of an NDA are compensatory: the aim is to put you in the position you would have been in but for the breach. You must prove the loss and its causal link to the breach — for example, a signed customer contract that the counterparty walked away from after learning your pricing, or a product launch brought forward by a competitor who learned your roadmap.
Where proving your own loss is difficult but the other party has clearly profited — say, a competitor who won business using information they obtained from you — you can elect instead for an account of profits, requiring them to pay over what they made.
Employee NDA breaches
Breaches by employees or ex-employees can also engage the implied duty of good faith during employment, and post-termination confidentiality obligations that survive the end of the contract. The Trade Secrets (Enforcement, etc.) Regulations 2018 provide additional remedies for misuse of trade secrets, including interim measures, seizure orders and corrective measures such as recall or destruction of infringing goods.
When is enforcement worth pursuing?
Litigation is expensive and uncertain. Before issuing proceedings, ask honestly whether the expected outcome (compensation + costs recovered, or an injunction) justifies the cost, management distraction and risk of an adverse finding.
Enforcement tends to be most worthwhile when: the disclosed information had clear commercial value that is now compromised; the breach is ongoing and can be stopped by an injunction; the other party is a substantial entity with assets; or a deterrent signal is needed for a wider audience.
For minor or highly speculative harm, a formal letter followed by a negotiated settlement — perhaps including a confidential financial payment and a revised or reaffirmed agreement — is often a faster, cheaper and more certain outcome than a trial.
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