The Court of Appeal has upheld a High Court decision in Goode Concrete V CRH PLC & Ors  IEHC 534 in relation to the concept and permissibility of "Confidentiality Rings" in Irish Law.
A confidentiality ring is where certain individuals are granted permission to view documents that are otherwise confidential. Both the documents, and the information obtained therefrom, remain confidential. This concept is founded in Recital 18 of the Damages Directive (Directive 2014/104/EU).
In Goode, the plaintiff made a discovery request on the assertion that the defendant companies were colluding to lower the market price of a commodity in order to drive the plaintiff company from the market. It made various requests for discovery, many of which were rejected and were deemed to be "fishing" for commercially sensitive information, with the Court noting the disproportionate breadth of the requests. However, a discovery order was granted in respect of certain categories of documents, subject to a confidentiality ring, with restrictions on the director of the plaintiff company from viewing the material.
The Court was mindful of balancing two important opposing factors – the difficulty of asserting anti-competitive behaviour without access to the opposing party's private documents, versus granting a discovery request to a claim that may be without any factual basis at that point. The Confidentiality Ring is the Court's answer to this issue.
The crux of the Confidentiality Ring is that;
- Those permitted to obtain and view the documents do not disclose the content of any material to anyone outside the ring but fulfil the objective of enlightening the court and providing an enhanced factual basis for a claim
This provides a welcome and encouraging resolution to concerns that parties to a dispute may have about the security of their private papers. The Court of Appeal in this case stressed that it would like to avoid a situation where a party is forced to hand over its documents to a competitor who, having been granted access, cannot find any illegality to support its claim but obtains commercially sensitive data that allows it to achieve an increased market share ahead of its competitor. As well as this, if the Court believes that any individual has a vested interest in having sight of his/her competitor's documentation, he or she may be excluded from viewing that documentation, providing further security to clients who feel that their information is threatened.