Access All Areas? When The 'Interests Of Justice' May Permit A Non-Party Access To Arbitration Documents

The extent to which a non-party may obtain access to documents on the court file, and what those documents comprise, has been the subject of recent judicial scrutiny, notably the Court of Appeal's ruling in Cape Intermediate Holdings Limited v Dring.

In The Chartered Institute of Arbitrators v B and others, the High Court was required to consider this question in the context of documents connected with arbitral proceedings and the extent to which it may encroach on the inherent confidentiality attached to such proceedings.

Facts

In a contractual dispute between C and D, D applied to the Chartered Institute of Arbitrators (CIArb) for the appointment of an arbitrator. C queried the extent of the professional relationship between the appointed arbitrator and D. It wrote to the arbitrator asking him to recuse himself and then issued an application pursuant to section 24(1)(a) of the Arbitration Act 1996 for his removal (the section 24 application). The application was successful, with the High Court finding that there was the real possibility of apparent bias.

Following a complaint from a third party, the Professional Conduct Committee of the CIArb determined that disciplinary charges should be brought against the arbitrator.

CIArb's application

In the context of these disciplinary charges, the CIArb sought an order under CPR 5.4C(2) to obtain copies of the following documents from the court records in the section 24 application:

Statements of case. Witness statements, including exhibits. Written submissions and skeleton arguments. Statements of case

This first category was uncontroversial. CPR 5.4C says that a non-party may obtain a copy of a statement of case (albeit not any documents filed with or attached to it, absent court permission).

With regard to the latter two categories, the court determined that each fell within the inherent jurisdiction of the court to permit a non-party access.

Witness statements, including exhibits

The court drew upon the Court of Appeal's definition of "records of the court" in Dring, namely that:

"The 'records of the court'... may include witness statements and exhibits filed in relation to an application notice..." and "... the court should now be regarded as having inherent jurisdiction to allow non-parties access to documents read or treated as read in open court..."

The court concluded (albeit not without some doubt) that "records of the court" encompassed the witness statements and exhibits filed in the...