English Commercial High Court: Duty of Confidentiality In Arbitral Proceedings vs. Non-Party’s Legitimate Interest to Obtain Court Records of Such Proceedings

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In The Chartered Institute of Arbitrators v B & Ors [2019] EWHC 460 (Comm) the English Commercial High Court considered the issue of whether and how to exercise its discretion to grant permission for copies of the records of the arbitral proceedings to a non-party claiming a legitimate interest in disclosure of such documents. While allowing the access to such documents to the non-party, the Court discussed the landmark cases of Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 795 and Glidepath BV v Thompson [2005] EWHC 818 (Comm). Detailed case analysis given below:

Factual Matrix

C & D underwent arbitration and latter applied to The Chartered Institute of Arbitrators (CIArb) for appointment of an arbitrator. As a sequitur, CIArb appointed an arbitrator, B. Later C filed an application under Section 24(1)(a) of the English Arbitration Act, 1996 for the removal of B on the grounds that circumstances gave rise to justifiable doubts as to his impartiality. On this application, the Court ruled that their existed real possibility of apparent bias on the part of B. Following this ruling, B resigned. However, CIArb held disciplinary proceedings against B following a complaint from a third party and filed an application under the CPR 5.4C (2) before the English Commercial High Court to obtain certain documents which were part of the proceedings filed by C under Section 24(1)(a) of the English Arbitration Act. This application was decided by the Court in the present proceedings.

Applicable Legal Principles

Section 24(1)(a) of the English Arbitration Act

24 Power of court to remove arbitrator

(1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the following grounds—

(a) that circumstances exist that give rise to justifiable doubts as to his impartiality;

CPR 5.4C provides that:

“(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of

(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;

(b) a judgment or order given or made in public (whether made at a hearing or without a hearing), subject to paragraph (1B).

(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.

(3) A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if –

(d) judgment has been entered in the claim.

CPR 5.4D states:

(1) A person wishing to obtain a copy of a document under rule 5.4B or rule 5.4C must pay any prescribed fee and –

(a) if the court’s permission is required, file an application notice in accordance with Part 23; or

(b) …

(2) An application for an order under rule 5.4C(4) or for permission to obtain a copy of a document under rule 5.4B or rule 5.4C (except an application for permission under rule 5.4C(6)) may be made without notice, but the court may direct notice to be given to any person who would be affected by its decision.

Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 795

The state of law on the issue is set out by the English Court of Appeal in Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 795. The case concerned an application by a pressure group involved in lobbying and promoting asbestos knowledge and safety, for access to all documents used or disclosed in the trial of claims relating to damages for mesothelioma victims.  Having carried out a comprehensive review of the authorities on inherent jurisdiction, Hamblen LJ, with whom the other members of the Court agreed, summarised the position at [112] as follows:

(1) There is no inherent jurisdiction to allow non-parties inspection of:

(i) trial bundles;

(ii) documents which have referred to in skeleton arguments/written submissions, witness statements, experts’ reports or in open court simply on the basis that they have been so referred to.

(2) There is inherent jurisdiction to allow non-parties inspection of:

(i) Witness statements of witnesses, including experts, whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 32.13.

(ii) Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read outside court, or which it is clear or stated that the judge has read.

(iii) Skeleton arguments/written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are deployed.

(iv) Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.

Glidepath BV v Thompson [2005] EWHC 818 (Comm)

This case involved an application by a non-party for copies of documents of a court record and the stay of court proceedings pursuant to Section 9 of the English Arbitration Act, 1996 and the applicant was not a party to the arbitration agreement.

The applicant wished to have access to the particulars of claim, notices of application, for the freezing injunctions, as well as the respective orders. He also, sought access to all other applications, made before the respective proceedings, which had been stayed, and to any witness statements that had been filed before the Court, as he claimed that the documents would assist him in his claim in an employment tribunal. The defendants, resisted the application and argued that all the classes of documents covered under the application were confidential to the parties to the arbitration and the claimants had wrongly resorted to the courts, instead of referring the disputes to arbitration and accordingly as regards a non party the court should protect the confidentiality of the arbitral procedure by declining to permit any of the documents disclosed. The applicant argued that the court should not decline to permit access on the grounds of confidentiality. The confidentiality which would otherwise attach to the documents had they been ordered in the course of an arbitration, had to yield to the public interest in access to them, in so far as they had been engendered prior to the stay of proceedings.

The issue before the Court was whether the Court documents were subject to rules of confidentiality, which attach to arbitral proceedings pursuant to CPR 5.4(5). It was held that the permission of the Court to a stranger to an arbitration and to proceedings, which a Section 9 of the English Arbitration Act 1996 stay had been applied for, to inspect either an application notice, under Section 9 of the English Arbitration Act 1996 and any evidence on the court file or arbitration claim forms for ancillary relief under Section 44 of the English Arbitration Act 1996 and evidence appended on the court file should not be granted unless all the parties to the arbitration consented or there was an overriding interest of justice. Further, it was stated that in case where under Section 9 of the English Arbitration Act 1996 was preceded by an application for a freezing injunction the exercise of the Court’s discretion upon an application by a stranger to the arbitration agreement or the proceedings to inspect those applications or the evidence supporting them on the court file, should similarly be exercised by reference to the principles of confidentiality attaching to arbitral proceedings.

The Court also stated that on the facts of that case the applicant failed to establish that access to the documents in question was reasonably necessary to protect or establish the legal rights which he sought to enforce in the proceedings before the employment tribunal or otherwise in the interest of justice. Accordingly, the applicant failed to bring himself within either of those threshold exceptions to the confidentiality rule.

It was also stated that following Ali Shipping Corporation v Shipyard Trogir [1999] 1 WLR 314 arbitration proceedings and materials produced in the course of them are treated as confidential to the parties and the arbitrator subject to certain exceptions such as disclosure by leave or order of the court, which may be given when and to the extent that it is reasonably necessary to protect or establish the legal rights of a party to the arbitration by a third party or otherwise in the interests of justice and that there exists no authority for the proposition that a third party could outside the ambit of disclosure by a party to an arbitration obtain an order from the court for access to materials in an arbitration to which he is not a party so as to deploy them as evidence in other proceedings in which he would be a party. (Confidentiality in International Commercial Arbitration: A Comparative Analysis of the position under English, US, German and French Law by Kyriaki Noussia page 88-89)

Judgement

The Court held:

  • that a non-party is entitled to obtain a copy of the Part 8 arbitration claim form but not any documents filed with or attached to the statement of case (CPR 5.4 C (1)). CIArb is therefore entitled to obtain copies of the statements of case but as a matter of right but with the permission of the court under CPR 5.4C(2);
  • that witness statements and exhibits in a Part 8 Claim are “records of the court” and it would appear from Dring that a non-party may be permitted access to them;
  • Since the Charter of CIArb provides (Article 5.1(6)) that it supervises and monitors the performance of members and exercises disciplinary control through “an independent and impartial system of disciplinary proceedings” with the power to suspend or expel a member, CIArb has a legitimate interest in seeking copies of the documents and that interest can be said to be a public interest;
  • that there is a general public interest in maintaining the quality of and standards of arbitrators and this extends beyond the interests of the parties (confidentiality) in a particular case to the wider section of the public who choose to refer their disputes to arbitration. Therefore, the Court held that in relation to the declaration concerning the documents, it would have to be in the public interest in order to override the confidentiality obligation. Further, the Court observed that it would be in the public interest, in relation to the documents for which a right of access exists or for which access has been granted pursuant to CPR 5.4;
  • the Court noted that as per Glidepath BV v Thompson [2005] EWHC 818 (Comm) a court may order disclosure of documents generated in an arbitration when it is reasonably necessary in the interest of justice. In view thereof, the Court concluded that the charges in the disciplinary proceedings are based on the transcript of the hearing in 2015 and correspondence. Therefore, it is impossible to pursue the charges unless the transcript and correspondence are made available to CIArb. Accordingly, the court granted access to these documents in the interest of justice. On same grounds, the witness statements and exhibits were also made available to CIArb for its assistance in the disciplinary action.
  • However, the Court noted that since disciplinary proceedings are not based on the findings of Court (wherein the Court found justifiable doubts as to the impartiality of B) and the arguments advanced before the Court therein, it is not necessary therefore in the interests of justice to give access to the skeleton arguments.

Position in Singapore

The authority of law in Glidepath BV was affirmed by Singapore High Court in AAY and others v AAZ [2011] 1 SLR 1093 wherein the Court observed that where parties did not expressly specify the private and/or confidential nature of the arbitration, the obligation of confidentiality in arbitration would apply as a default rule. This obligation was a doctrine of arbitration law developed through the common law in England and Singapore. The position in other jurisdictions (such as Australia and the United States) may differ: at [55].

In considering exceptions to the general obligation of confidentiality, courts would usually begin with the established categories in the case law such as disclosure (a) by express or implied consent, (b) by order or leave of court, (c) as reasonably necessity for the protection of the legitimate interest of an arbitration party, (d) as a requirement of the interests of justice and (e) as a requirement of public interest. In so considering the courts would take into account the context and circumstances of the case, including the nature of the documents to be disclosed, to whom disclosure was sought to be made and the purpose of disclosure: at [64].

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