Halliburton Energy Services Inc v Smith International (North Sea) Inc & Ors

A party seeking to widen a confidentiality club must show that each proposed additional person would make a significant contribution to the fair conduct of the English proceedings. General benefits to international litigation, logistical convenience, seniority, or avoiding embarrassment are insufficient. The application must be supported by evidence; the required contribution is not presumed to be obvious. The relevant inquiry concerns the conduct of the English proceedings. The possibility that parties may advance inconsistent cases in foreign proceedings does not, without more, justify disclosure of confidential material in England.

The claimant and defendants were engaged in patent litigation concerning drill bits and related software in England, the United States and Italy. The defendants had provided a confidential product and process description subject to a confidentiality club. The claimant applied to add two American lawyers and two Italian lawyers to the club, contending that their involvement would assist the conduct of the international litigation and avoid inconsistent positions in different jurisdictions.

The claimant narrowed its application before the hearing. The issue was whether the evidence justified adding the four named individuals to the confidentiality club for the purposes of the English proceedings.

1. The application was dismissed. The claimant had not established that any of the four proposed individuals should be admitted to the confidentiality club.
2. A party seeking to add persons to a confidentiality club must show why their admission would make a significant contribution to the fair conduct of the English proceedings. It is insufficient to show only that wider access would make international litigation more efficient or enable legal teams in different jurisdictions to communicate more readily.
3. The necessary contribution must be supported by evidence. The court rejected the submission that the benefit of adding the proposed individuals was obvious without evidence.
4. The evidence did not establish that the proposed American lawyers could make a material contribution to the English proceedings. Their involvement in the United States litigation, familiarity with the technology, and seniority were not enough. Convenience or possible embarrassment within the American legal team did not justify disclosure.
5. The evidence concerning the Italian lawyers was weaker. The Italian proceedings were at an earlier stage, and there was no evidence that their admission would assist the English proceedings. A general fear that inconsistent positions might be taken abroad was insufficient. The relevant consideration was what was put before the English courts, not the possibility of different cases being advanced elsewhere.