Society Of Lloyd's v Sir William Otho Jaffray & Ors

Confidentiality orders may be made to permit documents to be used on an appeal while protecting legal privilege and commercially sensitive information. The court must ensure that the orders do not disadvantage any party in presenting the appeal. A liberty to apply provision is appropriate where the practical effect of the orders may only become clear during the hearing. Objections concerning discovery should ordinarily be pursued through the applicable discovery procedures and are not a basis for resisting a confidentiality order where discovery is not itself before the court. Costs will not necessarily be ordered against litigants in person who reasonably raise concerns about the orders.

LMCS and Equitas applied to intervene in the Court of Appeal proceedings and sought orders protecting the confidentiality of documents that might be used in an appeal concerning Lloyd's litigation. Similar confidentiality orders had been made below by Cresswell J, generally with the parties’ consent.

Sir William Jaffray and Mr Carter opposed the orders, raising concerns about disadvantage and alleged deficiencies in discovery. Mr Butler raised a drafting concern. The court also dealt with requests for a transcript and other matters not properly before it. The central issue was whether confidentiality orders should be made, and on what terms.

1. Application granted. The fifth draft confidentiality order was made, subject to additions concerning liberty to apply and transcripts.
2. The purpose of the orders was to enable documents to be used between the parties on the appeal while preserving, so far as possible, legal privilege and the confidentiality of claims statistics and claims information held by Equitas. The court considered it important both to protect those interests and to ensure that the appellants were not disadvantaged.
3. A liberty to apply provision was required. If the orders caused practical disadvantage during the appeal, the court could reconsider their terms. Equitas was to have an opportunity to address any proposal that would alter the position on which it had agreed to provide the information.
4. Complaints about discovery did not justify resisting the orders. Discovery takes place before or during trial and is governed by established procedures, including applications and appeals concerning discovery. Further discovery was not the subject of the application before the court.
5. A term relating to transcripts, which had appeared in the orders below, was to be incorporated into the order. The court declined to order Lloyd’s to fund an additional transcript of the hearing.
6. No order for costs was made against Sir William Jaffray or Mr Carter. Their concerns, as litigants in person, were understandable and an order for costs against them would be inappropriate.

• Court of Appeal (Civil Division): considered an interlocutory application arising in an appeal from orders made by Cresswell J in the Queen’s Bench Division, Commercial Court.
• Queen’s Bench Division (Commercial Court): Cresswell J had made confidentiality orders, including an order in June 2000 concerning information supplied by Equitas.
• Court of Appeal: an earlier attempt by Sir William Jaffray to appeal the June 2000 order had been refused permission by the Master of the Rolls; no citation for that decision was stated.