Court rules defendant must disclose documents from an arbitration in which the defendant was a party/pre-action protocols

English law recognises that documents which are prepared for the purpose of arbitrations and copied to the arbitrators and the other party, as well as the award itself, are protected by a duty of confidentiality. That duty can be overridden, though, by an order from the English courts (as well as in other ways). In this case, the claimant, a non-party to an arbitration, sought permission from the court for disclosure of documents and information obtained by the defendants in arbitrations in which the defendants had been involved.

The defendants raised a number of objections, including:

  1. The claimant had failed to comply with the TCC pre-action protocol because no without prejudice meeting had taken place (and hence this claim should be stayed to allow compliance with the protocol). That argument was rejected by the judge who held that the protocol did not apply to a Part 8 claim for production of documents. In any event, he said that the court is principally concerned to ensure that, as a result of the protocol stage, each party to any subsequent litigation has a clear understanding of the other side's case. Here, the defendants were fully aware and a without prejudice meeting would only have added further costs. Hence the claimant had complied with the protocol "in substance".
  2. They had no duty to provide the documents. That argument was also rejected by the judge: the defendants were the agents of the claimant and so had a duty to provide the documents, which related to the affairs of the principal.
  3. The documents were confidential to the other party to the arbitrations and they were not obliged to provide documents to their principal in breach of that confidentiality. That argument was also rejected: "It is for the defendants to show that their unequivocal obligation to provide all these documents to [the claimant] should in some way be tempered by questions of third party confidentiality. They have wholly failed to do that". Of importance here was the fact that the claimant was, on the facts of the case, likely to have to meet any shortfall to the relevant third party arising out of the defendants' impecuniosity.

Accordingly, disclosure was ordered.