The Chartered Institute of Arbitrators v B & Ors

A non-party seeking documents from court records must establish a legitimate interest and obtain permission where required. The court balances that interest against confidentiality, giving substantial weight to open justice and the interests of justice. Arbitration confidentiality may be overridden where access is reasonably necessary to protect or establish legal rights or where the public interest requires it. Documents used in an effective public hearing, particularly documents read or treated as read by the judge, may be released. Declaratory relief may be granted where there is a real and present dispute, all affected interests have been properly represented, and the declaration is an effective means of resolving the issue.

The Chartered Institute of Arbitrators sought access to statements of case, witness statements, exhibits, correspondence, a transcript and skeleton arguments filed in earlier arbitration-removal proceedings involving B. It also sought declarations permitting use of those materials, and the circumstances of B’s nomination and appointment, in disciplinary proceedings against B.

The applications engaged court-record access, the inherent jurisdiction, open justice, arbitral confidentiality and the court’s jurisdiction to grant declarations. The central issues were whether access was necessary in the interests of justice, whether confidentiality should yield to the public interest, and whether declarations could properly be made on a procedural application.

1. First Application allowed in part. The applicant was entitled to obtain the statements of case. Permission was granted for the witness statements, exhibits, transcript, RICS form and specified correspondence which had been filed in, or read or treated as read during, the public Section 24 proceedings. Access to the skeleton arguments and disclosed documents was refused.
2. Following Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 795, documents filed in Part 8 proceedings may fall within the records of the court, but access under CPR 5.4C(2) remains discretionary. The inherent jurisdiction also extends to documents read out in open court, documents the judge was invited to read, documents specifically identified for reading outside court, and documents which the judge clearly read.
3. The discretion requires a balance between the applicant’s reasons and the parties’ interest in confidentiality. Relevant factors include the engagement of open justice, the legitimacy and public or private nature of the applicant’s interest, the reasons for confidentiality, and the harm caused by access. The Institute had a legitimate public interest in maintaining professional standards and disciplinary control over arbitrators. The documents were necessary to pursue the disciplinary charges and had largely entered the public domain.
4. Arbitral confidentiality is implied by the nature of arbitration, but disclosure may be permitted where reasonably necessary to protect or establish legal rights or in the interests of justice. The public interest in maintaining the integrity of arbitration justified access to the specified documents. Any necessary confidentiality could be preserved by the disciplinary tribunal sitting privately.
5. Second Application allowed in part. The court had jurisdiction to grant declarations under section 19 of the Senior Courts Act 1981. The procedural defect in bringing the declaration application under Part 23 was remedied under CPR 3.10 because the respondent understood the issue, refusal would cause further cost and delay, and no new evidence or submissions would be required.
6. A limited declaration was made permitting the parties to refer to and rely on the documents ordered to be disclosed, notwithstanding confidentiality, because disclosure was in the public interest. The requested declaration concerning the wider circumstances of B’s nomination and appointment was refused because other affected parties had not been notified and all sides of the argument had not been heard.

First-instance decision. The judgment states that Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 795 was under appeal to the Supreme Court, but proceeds on the basis of the Court of Appeal’s statement of the law.