CDE v NOP [2021] EWCA Civ 1908 (14 December 2021)

CDE v NOP [2021] EWCA Civ 1908 (14 December 2021)

The judge was entitled to hold the case management conference in private to protect the confidentiality of the arbitral award, as required by CPR 39.2(3)(c), but erred in suggesting that confidentiality should be the starting point for future hearings. The starting point remains open justice, and any derogation must be justified under CPR 39.2. The order was varied to clarify that the burden is on the party seeking privacy to apply and justify it.

Citation
[2021] EWCA Civ 1908
Parties
Claimant/appellant: CDE; Defendant/respondent: NOP
Jurisdiction
England and Wales
Judgment Date
14 December 2021
Procedural Posture
Appeal (civil) / Appeal From High Court (commercial Court) Case Management Order
Outcome
Appeal dismissed in part; paragraph 2 of the High Court order set aside and replaced; costs awarded to Respondents.
Legal Topics
Open Justice, Arbitral Confidentiality, Case Management, Summary Judgment, Issue Estoppel, Abuse of Process
Civil Procedure Arbitration Commercial Law Open Justice Arbitral Confidentiality Case Management Summary Judgment Issue Estoppel +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

CDE

Claimant/appellant

NOP

Defendant/respondent

Procedural Posture

Appeal (civil) / Appeal From High Court (commercial Court) Case Management Order

Legal Issues

  1. 1 Whether the case management conference and related applications should be held in private due to arbitral confidentiality
  2. 2 Whether the judge erred in applying CPR 39.2 and balancing open justice against confidentiality
  3. 3 Whether the privity application should be heard in public or private

Ratio Decidendi

The judge was entitled to hold the case management conference in private to protect the confidentiality of the arbitral award, as required by CPR 39.2(3)(c), but erred in suggesting that confidentiality should be the starting point for future hearings. The starting point remains open justice, and any derogation must be justified under CPR 39.2. The order was varied to clarify that the burden is on the party seeking privacy to apply and justify it.

Court Disposition

Appeal dismissed in part; paragraph 2 of the High Court order set aside and replaced; costs awarded to Respondents.

Orders

  • Paragraph 2 of the High Court order set aside and replaced: if Defendants or X Co wish the privity application to be heard in private, they must apply and the application will be determined under CPR 39.2 by the judge hearing the privity application.
  • Appellants to pay Respondents' costs of the appeal, subject to detailed assessment if not agreed.