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Non-Party Allowed Access to Court Documents for use in Arbitration

In a potential controversial decision, the Commercial Court has granted a third party the right to access copies of documents disclosed in High Court litigation to remove an arbitrator, despite the usual confidentiality of arbitration proceedings.

In The Chartered Institute of Arbitrators v B & Ors[1], the Commercial Court has granted the Chartered Institute of Arbitrators (CIArb) an order under CPR5.4C(2) to obtain copies of certain documents for use in disciplinary proceedings against an arbitrator, B.

By way of brief background, there was a contractual dispute between C and D, D applied to the CIArb for the appointment of an arbitrator and the CIArb appointed B. Shortly after B’s appointment, C requested information concerning the nature and extent of the professional relationship between B and D. The judgment of Ramsey J in Eurocom Ltd v Siemens plc[2] found that a representative of D had deliberately, or recklessly, answered a question as to whether there were conflicts of interest for B to act in an adjudication. In this case, D had applied to the Royal Institute of Surveyors for the appointment of an adjudicator, one of whom was B. Ramsey J found that D’s representative answered the question in relation to conflicts of interest so as to exclude adjudicators who he did not want to be appointed.

Following correspondence on the issue, B called an arbitral hearing to determine whether or not the tribunal was “properly constituted”. The hearing took place and B ruled that the tribunal was properly constituted and he had no conflict of interest. C applied to the Court under s.24(1)(a) of the Arbitration Act 1996 for the removal of B on the grounds that circumstances gave rise to justifiable doubts as to B’s impartiality. A hearing was held and the Court concluded that there were grounds for removal and there was a real possibility of apparent bias (the Section 24 Application). B then resigned as arbitrator and the CIArb determined that disciplinary proceedings should be commenced against B.

The CIArb sought an order under CPR5.4C(2) for copies of:

  • Statements of case;
  • Witness statements excluding exhibits; and
  • Written submissions and skeleton arguments from the Section 24 Application (the Documents).

In exercising its discretion, the approach of the Court, as stated in Dring[3], was that “the Court has to balance the non-party’s reasons for seeking copies of the documents against the party to the proceedings’ private interest in preserving their confidentiality”.

Mrs Justice Moulder decided that the CIArb had a legitimate interest in seeking copies of the Documents and that the interest was a public interest. However the Court must balance that legitimate interest against the inherent confidentiality of arbitration proceedings. One exception to this is where the disclosure of such material is in the interests of justice. Moulder J considered that there was a general public interest in maintaining the quality and standards of arbitrators which extends beyond the interests of the parties in a particular case. Moulder J called arbitration a “quasi-judicial process for the resolution of disputes and in [her] view the interests of justice lie in supporting the integrity of this alternative dispute resolution mechanism.”

Partially granting the application, Moulder J gave access to most of the Documents but declined to give access to the skeleton arguments on the basis that the disciplinary proceedings were not based on the findings of, and arguments advanced before, Hamblen J. Therefore it was not necessary in the interests of justice to give access to the skeleton arguments.

[1] [2019] EWHC 460 (Comm)

[2] [2014] EWHC 3710 (TCC)

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

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