Anti-competitive practices - Confidential information - Disclosure - Ofcom - Satellite television

(1) British Sky Broadcasting Group Plc (2) British Sky Broadcasting Ltd v (1) Virgin Media Communications Ltd (formerly NTL Communications Ltd), (2) Virgin Media Television Ltd (formerly Flextech Television Ltd), (3) Virgin Media Ltd (formerly NTL Group Ltd): CA (Civ Div) (Lord Chief Justice Lord Phillips, Lords Justice Jacob, Lloyd): 6 June 2008

The appellant television broadcaster (B) appealed against the refusal of its application for an order restricting inspection of commercially sensitive documents in a dispute with the respondent broadcaster (V) over access to television channels.

V had brought a claim alleging that B was abusing a dominant position. Proceedings were brought in the High Court and the Competition Appeal Tribunal, and Ofcom instigated a review. V instructed the same ­solicitors to act for them in all three sets of proceedings.

Both parties were required to make disclosure of ­relevant documents in the High Court proceedings pursuant to the ­provisions of part 31 of the Civil Procedure Rules (CPR). Many of the ­documents were of such commercial sensitivity that it was agreed that ­disclosure of the sensitive documents be restricted to identified external legal advisers, who would give express undertakings not to disclose their ­contents to anyone, including their clients, and only to use them for the purpose of the High Court ­proceedings.

B later applied for an order ­restricting inspection of their sensitive documents to lawyers who were not acting for V in the Ofcom review or the tribunal proceedings. The judge refused the order on the basis that B was adequately protected by the CPR and the additional safeguard which would be imposed by the confidentiality undertakings entered into by V’s lawyers.

B submitted that the duty not to use disclosed documents for any purpose other than that for which they were disclosed was a duty of ­confidence that did not differ in ­principle from that which arose in other situations of confidentiality, and that duty could have the effect of ­precluding a solicitor from acting for a party whose interests were in conflict with those of the disclosing party.

B further contended that lawyers with knowledge of the contents of the sensitive documents would inevitably be influenced by that knowledge in advising V and acting for them in the other proceedings, to the extent that they could not properly act in those proceedings. V submitted that the lawyers with knowledge would be well aware of their duty not to use that information without the permission of the court.

Held: (1) Not only was the order sought unusual but it was, as far as the present court was aware, without precedent in the jurisdiction. Its effect would be that V could not continue to use the individual lawyers of their choice in more than one set of ­proceedings. It was desirable that a ­litigant should be free to instruct the lawyer of his choice. That was ­particularly true if the lawyer was already acting for the client and the client wished the lawyer to continue to act in a related manner.

There was a distinction between the duty of confidentiality that existed between solicitor and client and the duty that arose in respect of information obtained from an opponent in the course of litigation, Merck & Co v Interpharm [1992] 3 F.C. 774 applied. It was unlikely that V’s legal advisors would wish to make use of ­information obtained from the ­sensitive documents in the tribunal proceedings.

The risk that information disclosed in the High Court ­proceedings would be improperly used in the tribunal proceedings was ­fanciful. For that reason alone there was no justification for preventing V’s lawyers who had been instructed in the High Court and the tribunal ­proceedings from seeing the sensitive documents that had been disclosed in the former proceedings. B’s application was only possible because of the ­special arrangements that had been made to restrict disclosure to external lawyers.

Those arrangements had been made because the documents were commercially sensitive. But for that sensitivity, disclosure would have been made to the parties themselves and to their in-house lawyers. They would necessarily have carried that knowledge with them when appearing in the other proceedings. There was no reason why the external lawyers should not be in the same position.

(2) Ofcom, as regulator, was entitled to have all B’s material documents ­relevant to the issues. The judge was right to, implicitly, reject B’s contention that there was a material risk of ­misuse of B’s confidential documents if lawyers within the confidentiality ring for the High Court proceedings also acted in relation to the Ofcom review.

(3) Each set of proceedings was concerned with ensuring fair competition in relation to the supply of pay ­television. It was in the public interest that the court should have regard to the contents of the parties’ confidential material documents. The same public interest would be served by the tribunals in the other sets of proceedings having regard to the information in those documents. It was hard to conceive of circumstances where ­disclosure in one set of proceedings would preclude lawyers from acting in other proceedings between the same parties.

Appeal dismissed.