P v Q & Ors

Disclosure in support of an application under section 24 of the Arbitration Act 1996 is subject to a real prospect of success and strict necessity for the fair disposal of the application. The court must also consider the overriding objective, efficient and speedy finality, minimum court intervention, party autonomy and any institutional decision already made.

Disclosure from arbitrators will be ordered only in the rarest cases, if ever. Confidential documents forming part of the adjudicatory process, including communications about how decisions are made, are protected. The court will normally give effect to the parties’ agreement that arbitral deliberations remain confidential.

The claimant sought disclosure from the second and third defendants, who were co-arbitrators, in support of an application to remove them for misconduct under section 24(1)(d)(i) of the Arbitration Act 1996. The proposed disclosure concerned communications, drafts and other documents relating to three interlocutory decisions in an LCIA arbitration.

An LCIA challenge had already rejected substantially the same allegations of improper delegation and inadequate participation. The claimant also sought an adjournment of the removal application pending a United States discovery application. The issues were the applicable merits threshold, the relevance and necessity test, the court’s discretion, and whether the hearing should be delayed.

1. Disclosure application dismissed. The claimant had to show that the section 24 application had a real prospect of success. Its merits could be considered briefly in the exercise of discretion, but no heightened merits threshold was required merely because confidential deliberations were sought.
2. The documents also had to be strictly necessary for the fair disposal of the application. Applications to remove arbitrators are interlocutory and procedural. The court therefore applied the principles governing interlocutory disclosure, together with the arbitral principles of efficient and speedy finality and minimum court intervention under sections 1(a), 1(c), 33(1)(b) and 40(1) of the Arbitration Act 1996.
3. Disclosure would normally be inappropriate in an arbitration claim under Part 8 and Part 62 of the Civil Procedure Rules 1998. The court should be reluctant to order disclosure where an arbitral institution empowered to address the issue had already declined to do so. Party autonomy under section 1(b), and the policy reflected in section 24(2), reinforced that approach.
4. Applying Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, arbitrators were in the same position as judges. The immunity covered documents created for the adjudicatory process, including communications about the process by which decisions were made. No proper distinction could be drawn between the substance of deliberations and the procedural steps by which they occurred.
5. Article 30.2 of the applicable LCIA Rules did not remove the court’s jurisdiction, since it was subject to the applicable law of the seat. However, the court should ordinarily give effect to the parties’ agreement that deliberations remain confidential. The documents sought were not strictly necessary, and their production would expose confidential deliberations. The application was therefore dismissed.
6. The request to adjourn the removal application was also refused. Delay pending the United States discovery application would be illogical and contrary to efficient and speedy finality, particularly given the imminent substantive arbitration hearing.