Confidentiality Clubs - A Departure From Open Justice?

Litigation is usually an open, public process. It is a core tenet that justice must not only be done but it must be seen to be done. The Civil Procedure Rules allow for non-parties to access pleadings, judgments and orders from the court file in most circumstances. Hearings are usually open to the general public to attend. Within the litigation process, parties are required to disclose all their relevant documents regardless of how confidential they are.

However, the court is increasingly being asked to deviate from the norm and in doing so it must undertake a balancing exercise, weighing up unfettered access to a party's documents withrisks that arise from such access. Those risks may relate to damage to commercial rights (such as trade secrets) or risks to the life, limb or property of third parties.

This latter issue came before the High Court in The Libyan Investment Authority v Société Générale SA and others [2015] EWHC 550 (QB), [2015] All ER (D) 69 (Apr). In this case, due to the "perilous and lawless situation in war-torn Libya", the Court imposed a "confidentiality club" on the LIA, putting strict limits on who could be given the names of certain individuals involved on the basis that not doing so would expose them to an immediate risk of loss of life or limb. This also required the use of "secure communications systems" where the individuals were anonymised, leading to them being known as the Alphabet Individuals. The confidentiality club applied to "confidential information and material" which could only be seen by named "relevant persons", including solicitors, counsel, forensic accountants and IT and data management teams, who had given an undertaking to the Court to preserve the confidentiality in it.

Although shortly after the trial window commenced the proceedings were settled against the First to Fourth Defendants and were discontinued against the Fifth to Seventh Defendants, the Fifth Defendant had been successful in maintaining the existence of the confidentiality club such that it would have continued to operate throughout the entirety of the trial. This required careful consideration in advance of the practicalities necessary to maintain the integrity of the confidentiality club...