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31 May 2019

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 section 24 application or, if it was wrong on this, that the documents were ones which had been read out or read by the judge in open court.

Written submissions and skeleton arguments

Again, the court drew upon Dring, where the Court of Appeal stated that:

“There is inherent jurisdiction to allow non-parties inspection of: ... (iii) Skeleton arguments/written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are deployed.”

Applying this broad principle, the court held that this category of documents was also a matter of the court’s discretion.

Balancing act

The court noted that access to documents in the latter two categories is not “of right” to a non-party. The court’s permission is required and the court must determine whether it is appropriate to exercise its discretion.

The CIArb sought to argue that the documents were sought for a legitimate purpose which was in the public interest. This was the fact that the Royal Charter of the CIArb has as its objective to act in the public interest to promote and facilitate worldwide the determination of disputes by arbitration. This includes supervising and monitoring the performance of members and exercising disciplinary control over them.

The court was satisfied that this constituted a legitimate purpose. However, this had to be balanced against the confidentiality inherent in arbitration. In Glidepath BV v Thompson, the court held that:

“It is important that the courts do not allow vague principles of open justice to cause them to pay mere lip service to the confidentiality of arbitration proceedings, while permitting inroads into that regime, unless it is really necessary to give access in the interests of justice.”

The issue for the court was therefore whether the present case fell within this “interests of justice” exception. The court concluded that it did: there was a general public interest in maintaining the quality and standards of arbitrators (and that such standards were enforced); this extended beyond the interests of the parties in a particular case to the wider section of the public who choose to refer their disputes to arbitration.

Added to this were the following factors:

  • It seemed impossible for the CIArb to pursue charges unless the documents were made available.
  • The documents were “largely already in the public domain” as a consequence of the open hearing for the section 24 application.
  • Any harm to D appeared minimal to the extent that the documents related to confidential matters in the underlying arbitration, since the disciplinary tribunal could maintain confidentiality of the details by sitting in private.

The court did, however, refuse access to the skeleton arguments. This was on the basis that the disciplinary proceedings were not based on the findings of the court in the section 24 application, nor the arguments before the court there. Consequently, it was not in the interests of justice to give access to the skeleton arguments.

Comment

Clearly there must be a strong public interest to persuade the court, but parties involved in arbitration should be aware that there will be circumstances where a non-party may be permitted access to documents disclosed in the arbitration, notwithstanding the obligation of confidentiality that generally applies. That said, the decision should not give parties undue concern: as noted above, the contents of the documents for which permission was granted were already largely in the public domain.


This blog was first published on the Practical Law Dispute Resolution blog.

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