A recent judgment (The Chartered Institute of Arbitrators v B and Others [2019] EWHC (Comm)) highlights an exception to the general principle of confidentiality in arbitration proceedings, when it is "in the interests of justice" to permit access to documents on the court file.

The High Court permitted the Chartered Institute of Arbitrators (an arbitrator membership body with supervisory and disciplinary capacity), a non-party, access to documents from arbitration proceedings, for use in disciplinary proceedings against an arbitrator.

Key findings

A key element of the arbitration process is confidentiality. It is why many parties favour this form of dispute resolution. But parties should be aware that:

• the court may allow third parties access to documents in an arbitration;
• a significant public interest may, in certain circumstances, override the duty of confidentiality in arbitral proceedings; and
• access to arbitral documents may be ordered for use in other proceedings.

Facts 

The Chartered Institute of Arbitrators (the Institute) appointed an arbitrator (the Arbitrator) for a contractual dispute between two parties (Party A and Party B), at the request of Party A. Party B requested that the Arbitrator recuse himself due to the close nature of the relationship between the Arbitrator and Party A. 

Subsequently, an application under section 24(1)(a) of the Arbitration Act 1996 was brought by Party B (Section 24 Application) and it was decided that, as there was a real possibility of apparent bias, the removal of the Arbitrator was appropriate.

Separate to these proceedings, a complaint from a third party was received against the same Arbitrator (e.g. in relation to failure to disclose interests likely to affect his independence or impartiality and adopting aggressive / hostile conduct). The Institute accordingly commenced disciplinary action against the Arbitrator. To enable it to do so, the Institute made two applications under the Civil Procedure Rules:

• it sought copies of documents relating to the Section 24 Application (statements of case, witness statements, written submissions and skeleton arguments); and
• It requested declarations that it could rely on such documents as it was "in the public interest".

Judgment 

The Court took into account the provisions of CPR 5.4C (access to court documents). It also examined whether non-parties could have access to documents not forming part of the Court records.

Non-parties have an express right to statements of case, according to CPR 5.4C. 

However, non-party access to witness statements, exhibits, skeleton arguments and submissions could only be permitted under the Court's discretion, and only so long as they were considered to be on the Court record. 

In the alternative if, say, witness statements could not be considered as records of the Court, they could only be obtained by a non-party under the inherent jurisdiction of the Court and then only if they had been read by the judge or read out in open Court.

In considering whether to use its discretion, and following the approach taken in a recent Court of Appeal decision, (Cape Intermediate Holdings Ltd v Dring), [2018] EWCA Civ 1795 (which was confirmed by the Supreme Court at the end of July, after this CIA v B decision), the Court must strike a balance between preserving confidentiality and the reasons for which the non-party sought to obtain the documents, considering:

• whether the documents are sought in furtherance of the interests of open justice;
• whether there is a legitimate interest on the part of the party seeking the documents;
• the parties' reasons for seeking to preserve confidentiality; and
• any harm that might be caused should the Court permit non-party access to the documents.

The Court found that the disciplinary charges against the Arbitrator would be barred unless the documents were made available to the Institute. Access to the documents was therefore necessary in the interests of justice.

In relation to the Institute's ability to rely on the documents, the Court found that it had jurisdiction to make the declaration that the Institute could rely on the documents under the broad power set out in CPR 3.10. The Court found that it furthered the Overriding Objective in the Civil Procedure Rules to make such a declaration.

Impact 

This decision shows the willingness of the Court to exercise its jurisdiction to permit a non-party access to otherwise private documents, balancing the preservation of confidentiality against the interests of justice. Although the facts of this case were very unusual, it is worth being aware that confidentiality is not absolute for documents in arbitral proceedings.

Georgina Mercer