No NDA? No problem! High Court awards £2.15m damages in misuse of confidential information case based on implied duty of confidence

In the recent decision of Henderson & Jones Ltd v Salica Investments Ltd & Others [2025] EWHC 475 (Comm), the High Court reaffirmed the vital role of confidentiality in commercial relationships, particularly where sensitive information is shared in the context of potential investment. The judgment, which resulted in an award of £2.15 million in damages, highlights the courts’ firm stance on the misuse of confidential information.

Background

At the heart of the case was True View Care (TVC), a software platform developed by Mr. Gifford, designed to transform care home operations. TVC aimed to streamline task management by assigning care duties to the most suitable carers based on an intelligent matching system.

Confidential details about the software were disclosed during two meetings with investment firm Hambro Perks, led by its then-CEO Dominic Perks. Although initial discussions were positive, Hambro Perks ultimately decided not to pursue an investment. Not long afterwards, a similar product—first branded as WeCare, later known as Vida—entered the market. It was developed by DV Technologies, a subsidiary of Digital Home Visits, a company founded by Mr. Perks and Mr. Jabir, an investment adviser who had also worked with Hambro Perks.

The Claimant, Henderson & Jones Ltd (having been assigned the claim by Mr. Gifford), claimed that the unique combination of features in TVC had been disclosed during the meetings in confidence and that they were subsequently used without permission in the development of the rival software. The central issues before the Court were: (i) whether the information disclosed during the investment discussions were indeed confidential, (ii) whether the information had been imparted in circumstances importing an obligation of confidence, (iii) whether the Defendants had misused that information for their own commercial advantage, and (iv) how the resulting loss (if any) was to be quantified.

Establishing Confidentiality

The Court first considered whether the information shared had the necessary quality of confidence. Citing the well-established test in Coco v A N Clark (Engineering) Ltd, Calver J reaffirmed that confidential information must not be publicly available and must involve some degree of originality, effort, or ingenuity. In other words, it must be the result of intellectual input—not just a collection of publicly known facts.

On this point, Calver J was unequivocal that the information did have the necessary quality of confidence. He held that the TVC materials—containing detailed operational insights and technical designs— were far from generic as they embodied “valuable technical information collated and devised by Mr. Gifford using his skill, effort and time” and that the information “would assist a competitor to develop their own software containing the unique features of Mr. Gifford’s software”. Interestingly, Calver J found that whilst it was the case that “certain individual aspects of the information in the [materials] provided… might be said to be public knowledge, looked at as a whole the information was undoubtedly confidential and Mr. Perks and Mr. Jabir knew that”. He dismissed as “absurd” any suggestion that the information was not confidential because it “may have been, at least in part, publicly available if a competitor wished to expend the time, effort and money in collating it in the way that Mr. Gifford had done”. 

Duty of Confidence and Misuse

Having established that the information was confidential, the Court turned to whether it had been imparted in circumstances importing an obligation of confidence. Even in the absence of a formal non-disclosure agreement, the Court found that the nature of the meetings—commercial discussions about a potential investment—implied a duty of confidence. The parties understood that, given the private setting of the meetings, the information was being shared for a limited purpose, and not for commercial exploitation. Further, the Court accepted Mr. Gifford’s evidence that he had made Mr. Perks expressly aware that the information shared during the meetings was confidential and was solely to be used for the purposes of determining whether or not to invest in the business being pitched. 

Calver J concluded that Mr. Perks, together with Hambro Perks, had misused the information by leveraging it to develop a rival platform. He found that WeCare/Vida was “built on the TVC design”, and that Mr. Gifford had been unfairly excluded from the opportunity to benefit from his own invention. The creation of a directly competing product also reduced his chances of attracting other investment, causing commercial harm. As a result, the Defendants were found liable for breach of confidence.

Quantifying Loss

The Claimant proposed two approaches to quantifying the damage suffered: 

1. The first, described as a “business opportunity valuation”, was based on the contention that the misuse of the confidential information enabled a competitor to bring a rival product to market, thereby depriving Mr. Gifford of the opportunity to commercialise his own product; the loss was said to be the estimated value of the (now-unrealisable) TVC business opportunity. 
2. The second approach, described as a “business concept valuation”, sought to quantify the Claimant’s loss based on the principle of ‘negotiating damages’—a hypothetical sum that a willing buyer would have paid at the time of the breach to obtain a licence to use the confidential information. 

The Court found that the first approach had too many speculative elements to make it a reliable basis for calculating the loss. However, the Court rejected the Defendants’ argument that the alternative approach based on negotiating damages was an “inappropriate measure of… loss as a matter of principle”. Calver J found that the breaches had rendered Mr. Gifford’s software, TVC, commercially unviable – stating that it had “become un-investable or unmarketable by reason of [the] breaches of confidence” and had “lost its attractiveness and value in the marketplace”. In consequence, the Court held that, based on the Claimant’s expert forensic accountancy evidence, approximately £2.15 million was a fair valuation of the “business concept” of TVC and awarded that sum by way of negotiating damages.

Notably, there was no competing expert evidence adduced by the Defendants due to their failure to comply with the deadlines for exchange of reports.

Takeaways

Whilst this judgment demonstrates that a party can successfully rely on an implied duty of confidence when bringing a misuse of confidential information claim, relying solely on an implied obligation carries inherent and unnecessary risk. Judicial determination of whether an implied duty exists is not always as straightforward as seen in this case, and it is anything but predictable, depending on an analysis of fact and law by the Court and following costly and time-consuming litigation, as in this case. Therefore, it remains best practice to have a non-disclosure agreement in place before disclosing any confidential information to a third party. Not only does this provide clarity from the outset of the relationship, but it also strengthens the disclosing party’s position in the event of a dispute. 

The case also serves as an important reminder that when entering into exploratory discussions about future commercial relationships, whether for investment or collaboration, it is crucial to remain mindful of the purpose behind disclosure of any information considered to be confidential and only to disclose what is strictly necessary to achieve that purpose.

Finally, damages in misuse of confidential information cases are commonly difficult to prove and quantify, with an injunction preventing further misuse of the information often the key relief sought. In this case however the Claimant was able to build a successful and significant claim for loss based on negotiating damages supported by its expert forensic accountant.