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Confidentiality clubs - a departure from open justice?

Posted on 16 May 2018

Confidentiality clubs - a departure from open justice?

Litigation is usually an open, public process. It is a core tenet that justice must not only be done but it must be seen to be done. The Civil Procedure Rules allow for non-parties to access pleadings, judgments and orders from the court file in most circumstances. Hearings are usually open to the general public to attend. Within the litigation process, parties are required to disclose all their relevant documents regardless of how confidential they are.

However, the court is increasingly being asked to deviate from the norm and in doing so it must undertake a balancing exercise, weighing up unfettered access to a party's documents withrisks that arise from such access. Those risks may relate to damage to commercial rights (such as trade secrets) or risks to the life, limb or property of third parties.

This latter issue came before the High Court in The Libyan Investment Authority v Société Générale SA and others [2015] EWHC 550 (QB), [2015] All ER (D) 69 (Apr). In this case, due to the “perilous and lawless situation in war-torn Libya”, the Court imposed a “confidentiality club” on the LIA, putting strict limits on who could be given the names of certain individuals involved on the basis that not doing so would expose them to an immediate risk of loss of life or limb. This also required the use of “secure communications systems” where the individuals were anonymised, leading to them being known as the Alphabet Individuals. The confidentiality club applied to “confidential information and material” which could only be seen by named “relevant persons”, including solicitors, counsel, forensic accountants and IT and data management teams, who had given an undertaking to the Court to preserve the confidentiality in it.

Although shortly after the trial window commenced the proceedings were settled against the First to Fourth Defendants and were discontinued against the Fifth to Seventh Defendants, the Fifth Defendant had been successful in maintaining the existence of the confidentiality club such that it would have continued to operate throughout the entirety of the trial. This required careful consideration in advance of the practicalities necessary to maintain the integrity of the confidentiality club throughout the trial.

By way of example, some of these practical considerations included -

  1. the use of anonymous ciphers at trial to refer to an Alphabet Individual;
  2. identifying instances in which the court would need to sit in private;
  3. how confidential witnesses were going to give evidence at trial without compromising their anonymity (including how such witnesses were going to enter and leave the court room without revealing their identities); and
  4. how to deal with confidential documents in the electronic trial bundle.

Confidentiality clubs are not all the same but at their heart they work by limiting who can see the evidence received from another party, where and how they can see it and whether they can copy or share it with others.

Strict confidentiality clubs can even prevent the parties themselves from gaining access to other party's disclosed documents, limiting access to solicitors and counsel (and perhaps experts); although this level of lockdown almost never continues all the way to trial.

For a claimant, the confidentiality club avoids proceedings being stymied as a result of defendants asserting rights that might otherwise prevent disclosure. At the same time, for a defendant who does not choose to become embroiled in litigation, the confidentiality club provides vital protection from serious identifiable risks that may result where the ordinary rules of court would require untrammelled disclosure. Accordingly, whilst the restriction on who can see evidence within the confidentiality club may be a departure from "open" justice, it can ultimately further the interests of justice by limiting the risks of life, limb, property and otherwise which may arise from disclosure.

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