You've signed an NDA. Someone breaks it. Now what? This is the moment when an NDA either protects you or becomes worthless. The remedies available—and how easily you can actually enforce them—determine whether the NDA is real insurance or just paper.
The two main remedies: damages and injunctions
When an NDA is breached, you have two types of remedy available under UK law. First, damages—compensation for the loss you've suffered. Second, an injunction—a court order forcing the person to stop the breach and not do it again. These work very differently.
Damages are about money. You prove the loss and get paid. But damages are slow (litigation takes months or years) and they only compensate you for past harm. If your trade secret is already out there, money won't un-ring the bell.
An injunction is the real power of an NDA. It's a court order that says: "Stop disclosing. Don't do it again. If you do, you're in contempt of court and you could go to prison." That gets attention.
Getting an injunction: the legal test
Under UK law, to get an injunction you must meet the test set out in American Cyanamid v Ethicon (1975), which remains the leading case. There are three main hurdles:
Is there a serious issue to be tried? You must show there's a genuine question about whether the NDA has been breached and whether it's valid. This is a fairly low bar. You don't need to prove breach beyond doubt; you just need to show there's a real case.
Would damages be an adequate remedy? This is the critical question for confidential information. If the breach is already done and the information is public, damages might be your only remedy. But if the breach is ongoing or threatened, and monetary loss can't fully compensate you, then damages are inadequate. The court is more likely to grant an injunction.
Where does the balance of convenience lie? The court weighs the harm to you if the injunction is refused (information spreads, competitive advantage lost) against the harm to the defendant if the injunction is granted (they can't use the information). If you're likely to win at trial and the damage is irreversible, the balance favours you.
Interim injunctions: speed matters
You don't wait for trial. If someone is about to breach or is actively breaching, you can apply for an interim (temporary) injunction within days or hours. This is where NDAs prove their worth.
A company learns of a planned disclosure of confidential information. They apply for an interim injunction. Within 48 hours, a judge issues an order freezing the disclosure. By the time the case goes to trial (maybe 6 months later), the moment has passed—the breach is prevented.
The catch: you need to move fast and you need to be able to prove the breach is happening or about to happen. If you sit on the breach for weeks, then run to court, a judge will ask: "Why didn't you come to us sooner?" Delay weakens your case.
Damages: what you can recover
If an injunction isn't available or doesn't work, you can sue for damages. But what do you actually recover? This is where it gets tricky.
In principle, you can recover the financial loss caused by the breach. If a competitor learned your pricing and undercut you, costing you £50,000 in lost sales, you should be able to claim that. If a customer list was disclosed and customers were poached, you can claim the value of those lost relationships.
But proving loss is hard. You need to show: (1) the breach happened, (2) the disclosure reached the third party, (3) the third party actually used the information, and (4) this caused your quantifiable loss. Each step is a hurdle. Courts are sceptical of speculative damages.
Additionally, you have a duty to mitigate—to take reasonable steps to reduce your loss. If you learned of a breach and did nothing, you can't claim full damages for losses you could have prevented.
When are NDAs hard to enforce?
Several things make enforcement difficult:
Proving the breach happened: You need evidence. Emails, documents, witness statements. If the breach is subtle or concealed, proving it can be expensive and time-consuming.
Proving the information was confidential: If the information was semi-public, or if you didn't take reasonable steps to keep it secret, the NDA might fail. The court asks: did you treat this as confidential? Did others know about it?
Causation issues: Even if the breach happened, did it actually cause the loss you claim? If your business failed for other reasons, you can't blame the breach.
Cost and time: Litigation is expensive. Even if you win, you might spend £50,000-£150,000 on legal fees to recover £100,000 in damages. The maths doesn't work unless the loss is substantial.
Practical steps to strengthen your case
If you think a breach might happen or has happened, here's what to do:
Document everything: Keep records showing what information is confidential, who received it, when, and under what circumstances. Dated emails and access logs help prove confidentiality.
Act quickly: If you learn of a breach, respond immediately. Send a formal letter before claim (a solicitor's letter) demanding the recipient stop the disclosure and confirm compliance. This shows the court you didn't sit idle.
Get legal advice early: Before litigation, understand your realistic prospects. A solicitor can assess whether you have a strong case and whether an injunction is available.
Consider interim relief: If a breach is imminent or ongoing, apply for an interim injunction before the damage spreads. This is the most powerful remedy available.
Practical alternatives to litigation
Full litigation is expensive and slow. Consider: mediation (a neutral third party helps you reach a settlement), negotiation (you and the other party work out a deal), or arbitration (a private arbitrator decides, faster and more confidential than court).
Many NDAs include a clause requiring mediation or arbitration before litigation. Use it. Often you can reach a resolution—payment, a retraction, or an agreement not to disclose further—without going to court.
Next steps
If you're worried about NDA enforcement or you think a breach might be occurring, get legal advice immediately. The difference between taking action on day one and day thirty can be enormous. Have your NDA reviewed to ensure it includes strong remedy clauses and clear processes for enforcement.
Need a professional assessment of your NDA and its enforceability? Upload it to QuickLegalCheck for a detailed analysis.