The Open Court Principle v. Confidentiality In Private Dispute Resolution: The Court Of Appeal Of England And Wales Weighs In

• Published date: 04 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Civil Law
• Law Firm: McCarthy Tétrault LLP
• Author: The International Arbitration Blog and Kyle McMillan

Overview

The England and Wales Court of Appeal recently handed down a decision addressing the competing principles of open justice and arbitral confidentiality.

Background

CDE v NOP ([2021] EWCA Civ 1908) ("CDE") concerns a dispute which is the subject of both a court action, and an arbitration involving companies said to be related to the defendants in the court action. Very few details of the actual dispute are set out in the Court of Appeal's reasons, though it is known to involve allegations of fraud, and to already have some public notoriety.

Although the court action remains ongoing, the arbitration has concluded, and an award has been granted. Whether the arbitral award is binding on the defendants, as a matter of privity, is a contested issue that will be argued in a forthcoming hearing (the "Privity Application"). In the meantime, the claimants (appellants) have sought to have the award made public as part of the Privity Application. The defendants (respondents) oppose that measure.

Naturally, the award is relevant evidence in the Privity Application, resulting in a question of whether, or to what extent, those proceedings should be held in private.

The Issue on Appeal

The actual issue on appeal was somewhat narrower: The presiding judge in a case management conference, itself held in private, ordered that the contents of the award not be disclosed in any hearings in the proceedings not being held in private, that correspondence relating to the award be treated as private and not made available to any non-party (with a few exceptions), filings referring to the award be treated as private, and that the parties names be anonymized. This effectively put the onus on the claimants to seek a determination from the Court as to whether the Privity Application may be heard in public. The Court of Appeal considered whether the case management judge had erred in (a) holding the case management conference in private and (b) issuing the orders that kept the award private until the Court ordered otherwise.

Analysis of the Court of Appeal

The Court of Appeal held that although the case management judge was correct to hold that conference in private, the same analysis may not be suitable for the Privity Application, which will be left for the judge hearing that application on the facts as they exist at that time.

The decision relied on Civil Procedure Rule 39.2 of the Civil Procedure Rules, which begins with a presumption that hearings are to be open to the...