Newcastle United Football Company Ltd v Football Association Premier League Ltd & Ors

A judgment following a private hearing of an arbitration claim should be published where this can be done without disclosing significant confidential information, whether by anonymisation or redaction. The court must balance the public interest in publication, including maintaining appropriate standards of fairness in arbitration, against the parties’ expectation of arbitral confidentiality. Positive detriment need not be proved, but confidentiality cannot prevail where the relevant information is already substantially in the public domain and publication would add no significant confidential material. The evaluation is fact-sensitive. The principles applicable to publication after a completed arbitration may apply equally to an application under s.24 of the Arbitration Act 1996.

The claimant sought publication of the substantive judgment in an arbitration-related dispute in unredacted and unanonymised form. The first defendant sought non-publication or, alternatively, postponement until the arbitration concluded, with substantial redaction and anonymisation. The court had heard the underlying claim in private. The central issue was whether publication would disclose significant confidential information and whether the parties’ expectation of arbitral privacy outweighed the public interest in publishing a judgment concerning an application under s.24 of the Arbitration Act 1996.

1. Publication principle. The court applied the principles in City of Moscow v Bankers Trust Co [2004] EWCA Civ 314; [2005] QB 207. The considerations governing a private hearing and those governing publication of the resulting judgment are distinct. A reasoned judgment occupies a different position from the arbitration itself.
2. A judgment should be published where that can be achieved without disclosing significant confidential information, including through suitable anonymisation or redaction. The desirability of publication is especially strong where the judgment concerns legal or procedural guidance, including applications under ss.68 and 24 of the Arbitration Act 1996, because of the public interest in maintaining appropriate standards of fairness in arbitration.
3. A party seeking continued privacy need not prove positive detriment beyond reliance on the undermining of its expectation that the arbitration and its subject matter would remain confidential. That expectation must nevertheless be balanced against the factors favouring publication, primarily by reference to the interests of the parties to the litigation.
4. Symbion Power LLC v Venco Imtiaz Construction Company [2017] EWHC 348 (TCC) was not authority for the broad proposition that an expectation of privacy disappears whenever the existence and issues of an arbitration enter the public domain. Whether confidentiality has been lost is fact-sensitive.
5. In the present case, the relevant participants and the substance of the dispute were already substantially public. The judgment added no significant confidential information. The public interest in publication therefore outweighed the residual expectation of confidentiality. The judgment was directed to be published without redaction or anonymisation. Costs were reserved for determination on paper.