Department of Economics Policy & Development of the City of Moscow v Bankers Trust Co & Anor

CPR 62.10 creates a special regime for arbitration claims. Claims concerning serious irregularity under section 68 of the Arbitration Act 1996 are ordinarily heard in private. A private hearing does not automatically make the resulting judgment confidential. The court must separately decide whether publication should be restricted. Where the arbitration and court proceedings contain highly sensitive confidential material, and no question of law or wider public interest requires publication, privacy of the judgment may be necessary in the interests of justice.

The claimant sought publication of an earlier judgment concerning unsuccessful challenges by the defendants to an arbitral award under section 68 of the Arbitration Act 1996. The challenges had been heard in private under CPR 62.10(3). The central issue was whether the judgment should itself remain private, and whether alleged disclosures had forfeited the defendants’ entitlement to confidentiality.

1. Application granted. The earlier judgment was ordered to remain private and unavailable for general publication. The result of the applications and the arbitration could be published without disclosing the judgment’s content.
2. CPR 62.10 provides a special code for arbitration claims and displaces CPR 39.2. Section 68 challenges concerning serious irregularity are ordinarily heard in private. The rule’s reference to privacy is a matter of policy and reflects the privacy and confidentiality ordinarily associated with arbitration.
3. The Scott presumption of open justice is not directly applicable to claims within the privacy provisions of rule 62.10. The court must nevertheless consider the nature of the application, any points of law or wider interest, the sensitivity of the material, the parties’ attitudes, the privacy inherent in arbitration, Article 6 of the European Convention on Human Rights and what is necessary in the interests of justice.
4. A private hearing does not automatically make the judgment confidential. Publication requires a separate assessment by reference to the judgment’s actual content. Here, the arbitration was confidential, the material was politically and commercially sensitive, and there were no issues of law or wider interest in the earlier judgment. Publication could prejudice the interests of justice by undermining arbitration confidentiality and deterring legitimate challenges.
5. The alleged disclosures did not forfeit confidentiality. Disclosure of the existence or commencement of the arbitration, its result, or the result of related litigation was permissible where there was a legitimate commercial reason. The substance of the arbitration had not been disclosed, and one party’s limited breach could not justify a breach by another.