CDE v NOP

CDE v NOP

The judge was right to hold the case management conference in private to protect the confidentiality of the arbitral award at that stage, but erred in not limiting privacy to only those parts of the hearing involving confidential information. The judge was also right to make orders preserving confidentiality pending the privity application, but the order should clarify that the starting point for the privity application is a public hearing, with the onus on the party seeking privacy to justify it under CPR 39.2.

Parties
Appellant: CDE; Respondent: NOP
Jurisdiction
England and Wales
Judgment Date
14 December 2021
Procedural Posture
Civil Appeal / Appeal From High Court (case Management Conference and Related Orders)
Outcome
Appeal dismissed save for variation of paragraph 2 of the High Court order
Legal Topics
Open Justice, Arbitral Confidentiality, Case Management, Summary Judgment, Issue Estoppel, Abuse of Process
Civil Procedure Arbitration Law Open Justice Arbitral Confidentiality Case Management Summary Judgment Issue Estoppel Abuse of Process

Case Brief

Summary, issues, holding and outcome

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Parties

CDE

Appellant

NOP

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (case Management Conference and Related Orders)

Legal Issues

  1. 1 Whether the case management conference and related applications should be heard in public or private in light of arbitral confidentiality and the principle of open justice
  2. 2 Whether the judge erred in holding the CMC in private and in making orders to preserve confidentiality of the arbitral award
  3. 3 Whether the privity application should be heard in public or private

Ratio Decidendi

The judge was right to hold the case management conference in private to protect the confidentiality of the arbitral award at that stage, but erred in not limiting privacy to only those parts of the hearing involving confidential information. The judge was also right to make orders preserving confidentiality pending the privity application, but the order should clarify that the starting point for the privity application is a public hearing, with the onus on the party seeking privacy to justify it under CPR 39.2.

Court Disposition

Appeal dismissed save for variation of paragraph 2 of the High Court order

Orders

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