Disclosure In The Public Interest

Introduction

Disclosure of documents in a court action can be fraught with arguments. It is an important step, as the purpose of disclosure is to make available evidence, which either supports or undermines the respective parties' cases.

A recent decision in the case of Gray Construction Limited v Harley Haddow LLP considered the issue of confidential documents, in the context of an arbitration settlement.

Facts

Gray Construction Limited ("Gray") was suing Harley Haddow LLP ("Harley Haddow") for damages, for alleged breach of contract and negligence - quantified on the basis of sums which Gray spent in an arbitration with the NHBC, about defective house foundations at a development in Dunfermline. The arbitration between Gray and the NHBC was settled by Gray's payment to NHBC of £110,000. Gray sought recovery of that sum plus one half of the arbiter's charges and other fees and expenses.

Harley Haddow applied for recovery of the documents relating to the arbitration, in order to understand the legal and factual basis of NHBC's claim against Gray, the circumstances surrounding settlement, and the reasonableness of the settlement.

Gray argued that these documents were confidential and were not needed by Harley Haddow in order to defend the court action. Gray had offered to produce an affidavit from the solicitor who acted for it in the arbitration with the NHBC to provide all information which Harley Haddow would reasonably require, in order to understand NHBC's claim and the circumstances surrounding settlement.

It was conceded that the documents sought by Harley Haddow did not contain sensitive commercial data. Nonetheless, it was accepted, given that arbitrations are private, that the documents were confidential. The question to be decided was...