Stonegate Farmers Limited & Ors v Michael Richard John Kent & Ors

A departure from the ordinary disclosure regime under CPR 31.22 must be justified by the circumstances of the case. Confidentiality protections should reflect the real risk of improper use, taking account of court supervision, legal representatives’ obligations, the parties’ interests and the practical operation of any proposed safeguards.

Individual defendants should not ordinarily be excluded from a confidentiality ring where their participation is necessary to understand and conduct the case, unless there are extraordinarily clear grounds for exclusion. A regime requiring all ring members to give clear undertakings may adequately balance confidentiality, defence rights and open justice.

The claimants sought additional protection for commercially sensitive financial and trading information to be disclosed in proceedings concerning alleged breaches connected with the divestment of business and assets. The information included customer, pricing and producer details. Noble Foods Group Limited accepted that some confidentiality protection was required and agreed to a proposed regime.

The dispute concerned whether the individual defendants should be excluded from the confidentiality ring because of an alleged risk that they might pass confidential material to Noble Foods. The court also determined the consequential costs orders.

1. Confidentiality regime. A departure from the default regime under CPR 31.22 required justification. The court accepted that the claimants’ commercial information required protection, but considered the present disclosure process materially different from the historical circumstances relied upon in support of the risk. Disclosure was court-supervised and conducted through solicitors on the record.
2. The relevant question was whether there was a sufficiently substantial risk of illegitimate use to justify additional restrictions. The court took account of the arguability of the serious pleaded allegations, while declining to determine their merits. The individual defendants generally lacked a personal interest in transferring information to Noble Foods, and the possible indirect interest of one defendant did not justify separate treatment.
3. The individual defendants should therefore be inside, rather than outside, the confidentiality ring. Exclusion would prevent them from seeing documents potentially relevant to their own cases and would place excessive reliance on lawyers and experts who might not appreciate the practical significance of particular material. The risk shown did not meet the high threshold required for exclusion.
4. The ring was to operate in substantially the agreed form, with an additional undertaking, expressed in clear terms, explaining to every member the importance of preserving confidentiality and the consequences of receiving the documents. The parties were to submit a draft order for review.
5. Costs. The claimants were not to recover their costs. Noble Foods was awarded its costs, capped at £100,000. The individual defendants were awarded their costs subject to detailed assessment, except that the sixth defendant’s costs were summarily assessed at £17,000; payments on account for the other individual defendants were limited to £25,000 each.