Emmott v Michael Wilson & Partners Ltd

English arbitration is private. The law implies an obligation that parties will not disclose or use documents prepared, produced or deployed in the arbitration for another purpose. The obligation extends beyond inherently or commercially confidential material.

Its content and limits depend on the context and the nature of the material. Disclosure may be permissible by consent, by an order or leave of the court, where reasonably necessary to protect an arbitrating party’s legitimate interests, or where the interests of justice require it. The interests of justice extend to preventing a foreign court from being misled. Any permitted disclosure should be confined to what is reasonably necessary, with redaction where appropriate.

MWP commenced a London arbitration against Mr Emmott concerning alleged breaches of contractual, fiduciary and other duties. It also pursued related proceedings against other parties in New South Wales and the British Virgin Islands. Allegations of fraud against Mr Emmott remained material to those foreign proceedings after claims of fraud and conspiracy had been removed from the arbitration pleading.

Flaux J authorised limited disclosure in the foreign proceedings of the amended arbitration pleading, Mr Emmott’s defence and a skeleton argument. He considered disclosure necessary to prevent the foreign courts from being misled. MWP appealed, disputing the court’s jurisdiction and the applicability of any exception to arbitral confidentiality. It also argued that the appeal remained live despite the documents already having been disclosed.

The central issues were the scope of the implied obligations of privacy and confidentiality in English arbitration, the circumstances permitting disclosure, and the court’s authority to determine that dispute.

1. Appeal dismissed unanimously. The disclosure authorised by Flaux J was justified in the unusual circumstances. The documents could be used in the New South Wales and British Virgin Islands proceedings to the limited extent ordered.

2. English arbitration is a private process. The law implies an obligation that both parties will not disclose or use for another purpose documents prepared for and used in the arbitration, documents disclosed or produced during it, transcripts or notes of evidence, the award, or evidence given by a witness. The obligation arises from the nature of arbitration and is implied by law. It is not confined to material possessing inherent or commercial confidentiality: per Lawrence Collins LJ at [79]–[84], [103]–[107].

3. The obligation is not absolute. Its content depends on context and the nature and provenance of the document. The principal recognised cases permitting disclosure are consent; an order or leave of the court, which does not confer a general discretion to lift confidentiality; reasonable necessity to protect an arbitrating party’s legitimate interests; and the interests of justice. A wider public-interest qualification may also exist, but Lawrence Collins LJ and Carnwath LJ left its boundaries open: [85]–[107], [134].

4. The court had jurisdiction to determine the application, which was the mirror image of an application to restrain disclosure by injunction. MWP had not sought a stay in favour of the tribunal. The Evidence (Proceedings in Other Jurisdictions) Act 1975 did not provide the exclusive route because the arbitration pleadings and skeleton argument were not evidence in the relevant sense: [108]–[110], [122]. Thomas LJ considered that, during a pending arbitration, a dispute between the parties about the scope of their contractual confidentiality obligations should ordinarily be determined by the tribunal. Lawrence Collins LJ and Carnwath LJ expressed no concluded view on that wider issue: [119]–[124], [134].

5. The interests of justice required disclosure. MWP had represented that the foreign proceedings and arbitration rested on the same underlying contentions and had sought parity between them, yet allegations of fraud remained abroad after being removed from the arbitration pleading. Without the arbitration material, the foreign courts risked receiving a misleading account. The interests of justice were not confined to England: [111]–[112].

6. Thomas LJ, with whose case-specific reasoning Carnwath LJ substantially agreed, also held that disclosure was reasonably necessary to protect Mr Emmott’s legitimate interests and was reasonably required in the public interest. Permission extended only to material necessary for those purposes. Redaction preserved the privacy of the remainder: [132]–[134]. Publication of the judgments was permitted: [113].

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The limited disclosure authorised below was upheld: [2008] EWCA Civ 184.
2. High Court, Commercial Court: Flaux J made orders dated 23 November and 4 December 2007 permitting specified documents generated in the London arbitration to be disclosed for use in proceedings in New South Wales and the British Virgin Islands. No citation for those orders is stated.