Factual and Procedural Background
The Chartered Institute of Arbitrators ("the applicant") initiated disciplinary proceedings against the first respondent, Defendant B, who was a fellow of the Institute. The charges relate to B's conduct in connection with his appointment as an arbitrator in a dispute between parties Company C and Company D. In early 2013, Company D requested the appointment of an arbitrator from the applicant, which resulted in B's appointment.
Subsequently, Company C, through its solicitors, requested information about the professional relationship between B and Company D, following concerns arising from a related case where a representative of Company D was found to have potentially excluded certain adjudicators improperly. An arbitral hearing was convened by B in April 2015 to determine the tribunal’s constitution and potential conflicts of interest, after which B issued a ruling confirming the tribunal was properly constituted and that he had no conflict.
Further correspondence led to Company C applying under section 24(1)(a) of the Arbitration Act 1996 for B's removal as arbitrator on grounds of apparent bias. A hearing in February 2016 resulted in a judgment by Judge Hamblen that justified removal due to real possibility of apparent bias. Following this, B resigned. Despite this, the applicant’s Professional Conduct Committee proceeded with disciplinary charges against B, based on conduct during the arbitration process, including failure to disclose conflicts and inappropriate behavior at the hearing.
The applicant filed two applications in June 2018: the first seeking access to certain court documents related to the section 24 application, and the second seeking declarations regarding the use of those documents and related information in the disciplinary proceedings. The respondent B opposed aspects of these applications, particularly the second, including costs orders. Company C consented to disclosure and use of the documents, while Company D did not consent but did not oppose the court application.
Legal Issues Presented
- Whether the applicant, as a non-party, is entitled to obtain copies of certain documents from court records under CPR 5.4C(2), including statements of case, witness statements, exhibits, written submissions, and skeleton arguments.
- Whether the court should grant declarations permitting the applicant and Defendant B to refer to and rely on those documents and related circumstances in disciplinary proceedings despite confidentiality obligations.
- Whether the court has jurisdiction to grant declaratory relief under these circumstances given the absence of a specific CPR rule allowing declarations by non-parties.
- Whether the public interest justifies overriding the confidentiality obligations inherent in arbitration proceedings for the purposes of the disciplinary proceedings.
- Whether the court should exercise discretion to permit access to and use of the documents balancing open justice, confidentiality, and the interests of the parties involved.
Arguments of the Parties
Applicant's Arguments
- The Chartered Institute of Arbitrators asserted a legitimate and public interest in accessing documents necessary to pursue disciplinary charges against Defendant B, who is a member of the profession it regulates.
- It was argued that the documents sought are either court records or have been read in open court, engaging the principle of open justice, and therefore access should be granted.
- The applicant relied on the inherent jurisdiction of the court and the principles in Cape Intermediate Holdings Ltd v Dring to support disclosure.
- The applicant contended that the public interest in maintaining standards and integrity of arbitrators outweighs confidentiality concerns.
- It was submitted that the disciplinary proceedings cannot fairly proceed without access to the hearing transcript and related documents.
- The applicant sought declarations confirming the right to refer to and rely on the disclosed documents in the disciplinary context.
Defendant B's Arguments
- Defendant B opposed the application for costs related to the second application.
- B did not respond to the first application for documents in his witness statement but was represented by counsel at the hearing, who addressed general principles.
- B maintained the general obligation of confidentiality in arbitration proceedings as a basis for resisting disclosure beyond what is strictly necessary.
- Counsel for B argued that the route under the Arbitration Act for removal of an arbitrator suffices and does not justify waiving confidentiality for broader disclosure.
- B challenged the court’s jurisdiction to grant declarations under CPR 5.4 and questioned the appropriateness of the form of application.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 795 |
Defined "records of the court" under CPR 5.4C(2) and set principles for non-party access to court documents balancing open justice and confidentiality. |
Applied as the leading authority governing access to documents by non-parties, guiding the court's discretion in granting permission to the applicant. |
| Ali Shipping Corporation v Shipyard Trogir [1999] 1 WLR 314 (CA) |
Established the principle of confidentiality in arbitration proceedings and exceptions allowing court-ordered disclosure in the interests of justice. |
Used to confirm the general confidentiality of arbitration and that exceptions require necessity for protecting legal rights or interests of justice. |
| Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184 |
Confirmed the obligation of confidentiality in arbitration and recognized public interest as a possible exception. |
Supported the court’s recognition of public interest in allowing disclosure for disciplinary proceedings despite confidentiality. |
| Glidepath BV v Thompson [2005] EWHC 818 (Comm) |
Considered non-party access to arbitration-related documents under CPR 5.4 in the context of freezing injunction and confidentiality exceptions. |
Guided the court in balancing confidentiality with interests of justice and confirmed that non-parties generally cannot obtain arbitration materials without exception. |
| Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387 |
Defined modern principles governing the court’s jurisdiction to grant declaratory relief and relevant considerations. |
Applied to confirm the court’s power to grant declarations in the absence of a subsisting cause of action and the need for a real dispute. |
| The "Styliani Z" [2016] 1 Lloyd’s Law Rep 395 |
Considered CPR 3.10 and the court’s power to remedy procedural errors in the form of originating process. |
Supported the court’s discretion to treat the applicant’s application for declaration as properly made despite procedural form issues. |
| Symbion Power LLC v Venco Imtiaz Construction Company [2017] EWHC 348 (TCC) |
Discussed the balance between public interest in publication of judgments and confidentiality in arbitration. |
Informed the court’s decision on anonymisation and publication, favoring public interest in publication over confidentiality concerns. |
| City of Moscow v Bankers Trust Co [2004] 1 CLC 1099 |
Considered the scope of confidentiality in arbitration and circumstances where public hearings and publication may be appropriate. |
Referenced to illustrate that confidentiality is not absolute and public interest may override in certain arbitration-related proceedings. |
| Home Office v Harman [1983] 1 AC 280 |
Emphasized the importance of public knowledge of evidence and arguments in the administration of justice. |
Quoted to support the principle that public access to written submissions/skeleton arguments may be necessary for open justice. |
Court's Reasoning and Analysis
The court began by identifying the scope of CPR 5.4C and the principles set out in Cape Intermediate Holdings Ltd v Dring regarding non-party access to court records. It distinguished between documents that a non-party is entitled to as of right (e.g., statements of case) and those requiring court permission (e.g., witness statements, exhibits, skeleton arguments).
The court found that the hearing transcript, certain witness statements, exhibits, and related correspondence were either filed court records or documents read or treated as read in open court, thus falling within the court’s inherent jurisdiction for disclosure to non-parties. It applied the balancing exercise mandated by Dring, weighing the principle of open justice and the applicant’s legitimate public interest against confidentiality concerns.
The applicant’s role as a professional body with disciplinary authority over members, including Defendant B, was held to confer a legitimate and public interest in accessing the documents to ensure enforcement of professional standards. The court acknowledged the general confidentiality of arbitration but considered that the public interest in maintaining high standards of arbitrators and the quasi-judicial nature of arbitration justified disclosure in this context.
The court recognized that the documents sought had already been substantially made public through the hearing and judgment of Hamblen J, and that any harm to Company D’s confidentiality interests would be minimal. It therefore exercised its discretion to permit access to the hearing transcript, relevant witness statements, exhibits, and correspondence, but refused access to skeleton arguments, as these were not necessary for the disciplinary proceedings.
Regarding the second application for declarations, the court confirmed its jurisdiction under section 19 of the Senior Courts Act 1981 to grant declaratory relief, notwithstanding the absence of a specific CPR rule for non-parties. It found a real and present dispute existed concerning the legal rights related to confidentiality and disclosure of arbitration documents.
The court granted a limited declaration permitting the applicant and Defendant B to refer to and rely on the disclosed documents in the disciplinary proceedings, overriding the confidentiality obligations based on public interest. However, it refused to extend the declaration to circumstances of B’s nomination and appointment in other arbitrations involving other parties not before the court, as those parties had not been notified and might raise confidentiality concerns.
Finally, the court addressed publication and anonymisation, concluding that the public interest in publication of judgments concerning arbitrations outweighed confidentiality concerns, and that further anonymisation beyond that already applied was unnecessary.
Holding and Implications
The court GRANTED the first application for access to specified documents from the Section 24 Application court records, including hearing transcripts, witness statements, exhibits, and correspondence, but DENIED access to skeleton arguments.
The court GRANTED a limited declaration that the applicant and Defendant B may refer to and rely upon the disclosed documents in the disciplinary proceedings notwithstanding the usual confidentiality obligations of arbitration, on the basis of public interest.
The court DENIED the declaration insofar as it sought to permit reference to the circumstances of Defendant B’s nomination and appointment as arbitrator in other arbitrations involving parties not before the court, due to lack of notice and potential confidentiality concerns.
The decision facilitates the applicant’s ability to conduct disciplinary proceedings effectively, supporting enforcement of professional standards among arbitrators. No new precedent was established beyond the application of existing principles balancing open justice, public interest, and arbitration confidentiality. The ruling underscores the court’s discretion to override confidentiality in arbitration where justified by public interest and procedural fairness.