Michael Wilson v. Emmott [2008] EWCA Civ 184
The Court of Appeal has recently given an important judgment clarifying the question of confidentiality in national and international arbitrations.
As a matter of English legal principle, arbitration is a private process and typically the courts will place the parties’ wish for confidentiality above the public interest consideration that disputes should be determined publicly. The dispute in Michael Wilson v. Emmott arose in, what the Court described as, “unusual circumstances”.
Mr. Wilson, an English solicitor, had asked Mr. Emmott to join his company, Michael Wilson & Partners Limited (“MWP”), a firm providing legal services in
MWP claimed that Mr. Emmott had been directing business from his former company in breach of contract and in breach of trust. Arbitration in
During the course of the
Mr. Emmott applied to the English court for an order permitting him to disclose the Amended London Arbitration Submissions and the skeleton argument before the arbitrators in the court hearings in
In dismissing the appeal the Court re-affirmed that there was an implied obligation on both parties to an arbitration not to disclose or use for any other purpose any document prepared for and used in an arbitration (including transcripts, notes of evidence and the award) without the consent of the other party or an order of the court.
However, the Court of Appeal also confirmed that there are limits to the privacy of arbitration proceedings and, whilst those limits were still in the process of development, the principal cases in which disclosure would be permitted included the following:-
1. Where the parties have expressly or impliedly consented to disclosure;
2. Where disclosure is reasonably necessary for the protection of the legitimate interests of an arbitrating party;
3. Where the interests of justice require disclosure; and,
4. (Perhaps) where the public interest requires disclosure.
The Court of Appeal found in the instant case that as the submissions were produced for the purpose of arbitration, making use of them outside the arbitration would amount to a breach of the obligation to keep the arbitration private. However, disclosure was necessary to protect Mr. Emmott’s legitimate private interests and was also in the interests of justice as there was a danger that the overseas courts might be misled. It was not necessary though for the entirety of the submissions to be produced and therefore some of the documents were rightly redacted to enable use of what was necessary, while preserving the privacy of the arbitration in relation to the remainder of the documents.
The Court declined to explore the extent to which the “public interest” could require disclosure (even when disclosure was not required for the protection of a party’s legitimate interests or was in the interests of justice) and so whilst this criterion appears to exist it remains unclear when it will apply.