Glidepath BV & Ors v Thompson & Ors

A non-party seeking access to documents generated in court proceedings ancillary to arbitration must overcome the confidentiality attaching to the arbitral process. Access is permitted only where all parties consent or the applicant shows that disclosure is reasonably necessary to protect or establish legal rights, or is otherwise required in the interests of justice.

Reasonable necessity requires more than evidential relevance or potential usefulness. The document must play an essential part in establishing the right or defence, so that refusal would seriously prejudice the applicant.

The applicant, a non-party, sought copies of pleadings, applications, orders and evidence held on the court file in proceedings alleging fraud arising from a joint venture. The proceedings had been stayed under section 9 of the Arbitration Act 1996 in favour of arbitration. Earlier applications for freezing injunctions and Norwich Pharmacal disclosure orders had been heard privately.

The applicant was pursuing separate Employment Tribunal proceedings concerning his employment and alleged discriminatory constructive dismissal. He sought the documents to strengthen his case and investigate disclosure. The central issue was whether a stranger to the arbitration could obtain access to court-file documents generated in proceedings ancillary to the arbitration.

1. Application refused. The applicant was a stranger to both the arbitration and the stayed proceedings. His application was governed by CPR 5.4(5) and (6), with witness statements additionally addressed by CPR 32.13.
2. Arbitration proceedings and materials produced in them are confidential, subject to exceptions. Under Ali Shipping Corporation v Shipyard Trogir [1999] 1 WLR 316, disclosure may be ordered where reasonably necessary to protect or establish a party’s legal rights, or otherwise in the interests of justice. The same principles apply to court documents generated by applications ancillary to arbitration, including a section 9 stay and section 44 relief.
3. CPR 62.10 reinforces that arbitration claims are ordinarily heard in private. The court’s supervisory jurisdiction is exercised in the public interest, but the parties’ expectations of privacy and confidentiality remain important. There is no blanket rule requiring either privacy or publication in every case; the court must exercise control in the particular circumstances.
4. The reasonable-necessity threshold is materially higher than evidential relevance or helpfulness. The applicant must show that access is essential to establishing the right or defence and that refusal would seriously prejudice him. The court should consider the nature and purpose of the proceedings, the powers and procedures of the tribunal, the issues to which the material is directed, and the practicality and expense of obtaining it.
5. The applicant failed to satisfy that threshold. The documents were sought principally to obtain potentially useful evidence and to circumvent ordinary disclosure in the Employment Tribunal proceedings. They were not essential to establishing his case. The evidence incorporated in the private applications was treated as part of those applications; even separate witness statements would not have been open to inspection because the hearings were private.

Neither the applicant’s particular interests nor the general interests of justice justified access to any of the requested documents.