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In The Chartered Institute of Arbitrators v B, C and D [2019] EWHC 460 (Comm) the English Commercial Court allowed, in part, a non-party to access documents that were used in Commercial Court proceedings in support of an arbitration to remove an arbitrator, despite arbitration proceedings in England ordinarily giving rise to confidentiality obligations.
B was a fellow of the Chartered Institute of Arbitrators (“CIArb”). In a dispute between C and D, the CIArb appointed B as arbitrator. A potential conflict of interest arose between B and D but B, at an arbitral hearing on 17 April 2015, confirmed his position. Subsequently, C successfully applied, under Section 24(1)(a) of the Arbitration Act 1996 (the “Section 24 Application”), for the removal of B as arbitrator. Following a third-party complaint, the CIArb commenced disciplinary proceedings against B in respect of his conduct relating to his appointment in the arbitration between C and D (the “Disciplinary Proceedings”).
The Commercial Court was asked to consider two applications in support of the Disciplinary Proceedings:
(i) the CIArb and B were entitled, in the Disciplinary Proceedings, to refer to and/or rely on: (a) the Documents; and (b) the circumstances of B’s nomination and appointment as arbitrator in matters concerning D; and
(ii) use of such documents is in the public interest (the “Second Application”).
The decision
Moulder J granted the applications in part.
The Commercial Court concluded that the CIArb were entitled, in the context of the Disciplinary Proceedings, to copies of the statements of case as of right under CPR 5.4 C(1). However, the remaining categories of documents could only be obtained if they were considered “records of the court”, in which case it was a matter of discretion for the Commercial Court under CPR 5.4 C(2). In the alternative, if the documents were not considered “records of the court”, then the documents must have been read out and/or read by the judge in open court, in which case they also fell within the court’s inherent jurisdiction. In exercising such discretion, the principle of open justice must be engaged, the applicant must have a “legitimate interest” in inspecting the documents, and that interest can be said to be a public interest (Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 1795).
Moulder J concluded that the witness statements (including exhibits) and the written submissions should be accessible in the interests of justice, notwithstanding the obligation of confidentiality which would otherwise apply to arbitral proceedings, by reason of public interest. It was determined that there was a public interest in maintaining the quality of standards of arbitrators that extended beyond the individual parties’ interests to the wider public who choose to refer their disputes to arbitral proceedings. However, the disciplinary proceedings were not based on the judge’s findings in the Section 24 Application, nor the arguments raised before him. On that basis, access to the skeleton arguments was denied.
Further, the Commercial Court granted the declaration that the CIArb and B were entitled, in the Disciplinary Proceedings, to refer to and/or rely on the documents for which access existed or had been granted under CPR 5.4 C, by reason of public interest. However, the application for a declaration in relation to the circumstances of B’s nomination and appointment, insofar as it extended to arbitration proceedings other than as between C and D, was refused.
In response to a request from counsel to anonymise certain references in the judgment, Moulder J held that the fact that the references in the judgment could lead to the identification of B were not sufficient to outweigh the public interest in the publication of the judgments.
This judgment demonstrates the balance which needs to be achieved between a non-party’s legitimate interest in seeking copies of documents used in court proceedings and the duty of confidentiality in arbitral proceedings. It was accepted that there is an implied obligation arising out of the nature of arbitration itself not to disclose or use for any other purposes documents prepared for, used or disclosed during an arbitration. However, in holding that the CIArb should be granted access to most of the documents requested, the judgment highlights that the public interest is regarded as a sufficiently important consideration to justify an exception to arbitral confidentiality in certain circumstances.
Hannah Lilley would like to thank Georgina King for her assistance in preparing this article.