ENGLISH COMMERCIAL COURT GRANTS PERMISSION TO THE CHARTERED INSTITUTE OF ARBITRATORS TO OBTAIN COPIES OF DOCUMENTS ON THE COURT'S RECORDS FOR DISCLIPLINARY PROCEEDINGS AGAINST AN ARBITRATOR

In The Chartered Institute of Arbitrators v B, C, D [2019] EWHC 460 (Comm), the Commercial Court granted an application made by the Chartered Institute of Arbitrators (the CIArb) under CPR 5.4C for permission to obtain copies of certain court records, to be produced in disciplinary proceedings against a CIArb member. The Court found that the public interest in ensuring CIArb members meet their professional standards outweighed the confidential nature of the arbitration, and allowed the disclosure of certain documents which were on the court's records and which had originally been produced during an arbitral hearing.

Background

A dispute had arisen between C and D and D then applied to the CIArb to appoint an arbitrator, leading to the appointment of B. C raised concerns about the arbitrator B's relationship with D and B was later removed by the Court under s.24(1)(a) Arbitration Act 1996 on the grounds that circumstances gave rise to the real possibility of apparent bias.

The Professional Conduct Committee of the CIArb commenced disciplinary proceedings against B, pursuant to a third party complaint. The charges included B's alleged failure to disclose interests likely to affect his independence or impartiality. The CIArb relied on the transcript of an arbitral hearing which B had called on 17 April 2015 to determine whether the tribunal was properly constituted. Although the CIArb obtained C's consent to obtain the documents and rely on them in the disciplinary proceedings against B, D had become part of another company following a sale and demerger and had told the CIArb that "the company was not able to assist " the CIArb.

Disclosure of documents on the court's records

CPR 5.4C(1) provides the right for a non-party to obtain from the court's records a copy of a statement of case and a judgment. However, the court's permission is required to obtain copies of other documents such as witness statements (including exhibits), written submissions and skeleton arguments (CPR 5.4C(2)).

The CIArb therefore applied to the Court to obtain:

• copies of documents from the court's records in B's removal proceedings (the First Application), which were:
  a. statements of case;
  b. witness statements; and
  c. written submissions and skeleton arguments (the Documents); together with
• a declaration from the Court;
  a. permitting the CIArb to refer and rely on the Documents and the circumstances of B's nomination and appointment as arbitrator in matters concerning D in the disciplinary proceedings, and
  b. that the use of the Documents was in the public interest (the Second Application).

The First Application

The Court applied the test from Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 795 to the exercise of its discretion to grant permission to a non-party to obtain copies of the court's records.

The Court decided that the CIArb's reasons for seeking copies of the Documents were legitimate and in the public interest, as the CIArb's role entails the supervision and monitoring of arbitrators to ensure that they do not fall below the standards expected of a competent practitioner.

The Court balanced the interest of the CIArb in obtaining the Documents against the reasons for seeking to preserve confidentiality of the underlying arbitration. The confidentiality principle in arbitration could be set aside if it was in the interests of justice to do so. The Court found that "there is a general public interest in maintaining the quality of and standards of arbitrators" which "extends beyond the interests of the parties" to the wider public who use arbitration to resolve their disputes. The Court commented that "arbitration is a quasi-judicial process for the resolution of disputes and …the interests of justice lie in supporting the integrity of this…".

The Court then considered the harm that might be caused by granting access to the Documents to the legitimate interest of the parties to the arbitration and noted that the transcript of the arbitral hearing was already largely in the public domain as the relevant transcript had been read out at the earlier court hearing. As a result, the harm to the parties in granting access to the transcript was considered to be minimal. The CIArb was also granted access to the correspondence on the basis that it did not contain details of the underlying dispute and provided context in relation to the circumstances which led to B's appointment. Access to the witness statements was also granted. However, access to the skeleton arguments was found not to be necessary in the interests of justice.

The Second Application  

The Court granted a declaration in the Second Application entitling the CIArb to rely on the documents to which access had been granted in the First Application.

The CIArb had wanted to rely on the circumstances of B's appointments in other arbitrations involving D. The declarations sought would have extended to other arbitrations involving D and third parties which had been decided by B. However, those third parties had not been notified of the application. The Second Application was therefore refused in relation to other arbitrations in which B was nominated or appointed.

Comment

The English courts generally maintain a non-interventionist approach to arbitration and will not usually order the release of documents from arbitral hearings. We do not expect this approach to change, but the decision in this case demonstrates one of a set of limited circumstances where the principle of confidentiality in arbitrations will be set aside in the interests of justice. Even then, the Court pointed out that the confidentiality of the content could be maintained by the disciplinary tribunal sitting in private to the extent necessary.

For more information, please contact Nicholas Peacock, Partner, Rebecca Warder, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.