Publishing arbitration court judgments

Arbitration is often referred to as a private and confidential dispute resolution procedure. The confidential nature of arbitration may, however, be compromised if the parties make an arbitration claim to the Commercial Court, which may order that it be heard either in public or in private (CPR 62.10(1)). The court may also consider whether the publication of any judgment or order should be restricted or not. In the recent decision of Manchester City Football Club Ltd v The Football Association Premier League Ltd & Others [2021] EWCA Civ 1110, the Court of Appeal considered the circumstances in which judgments of the court on applications challenging the tribunal for lack of jurisdiction and serious irregularity should be published or should remain private.

City of Moscow guidelines

Mrs Justice Moulder at first instance in Manchester City Football Club summarised the principles in the leading case of City of Moscow v Bankers Trust [2004] EWCA Civ 314 as follows:

i. Whatever the starting point or actual position during a hearing (whether it is held in private or not), it is not determinative of the correct approach to publication of the judgment;

ii. Even though the hearing may have been in private, the court should, when preparing and giving judgment, bear in mind that any judgment should be given in public, where this can be done without disclosing significant confidential information. The public interest in ensuring appropriate standards of fairness in the conduct of arbitrations militates in favour of a public judgment in respect of judgments given on applications under section 68 (serious irregularities) of the Arbitration Act 1996;

iii. The factors militating in favour of publicity have to be weighed together with the desirability of preserving the confidentiality of the original arbitration; and

iv. A party inviting the court to protect confidential information about a dispute must not necessarily prove positive detriment, beyond the undermining of its expectation that the subject matter would be confidential.

Facts

The Union of European Football Associations (UEFA) and the Premier League (PL) began disciplinary investigations into Manchester City (MC) in respect of alleged breaches of the financial fair play rules. Although the PL made a public announcement that an investigation was being conducted, both it and MC agreed that the investigation process was confidential.

Pursuant to the information-gathering powers under the Premier League Rules (PLR), the PL requested various information and documents from MC which MC refused to provide which led to the PL commencing arbitral proceedings against MC. MC challenged the jurisdiction of the arbitral tribunal on the grounds that it lacked substantive jurisdiction and that it did not have the appearance of impartiality. MC also issued an arbitration claim in the Commercial Court under the Arbitration Act 1996. The tribunal rejected MC’s arguments, concluding that it did have the necessary jurisdiction, and ordered MC to produce the information and documents requested by the PL. That order was then stayed pending the outcome of the challenge in the Commercial Court.

First instance

The hearing was held in private pursuant to CPR 62.10. Moulder J dismissed the application and held that the PLR permitted ‘all disputes’ to be referred to arbitration. She further held that, applying the Supreme Court’s decision in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48, the allegations of bias did not satisfy the test that a fair-minded and informed observer would conclude that there was a real possibility that the arbitrators were biased (the ‘Merits Judgment’).

Both parties opposed publication of the Merits Judgment. However, applying the guidance in City of Moscow, Moulder J rejected the parties’ submissions. She noted that the first piece of confidential information identified by MC was the existence of a dispute concerning the PL’s request for documents and information but that this could not be considered as ‘significant confidential information’ because (i) the existence of the investigation was already in the public domain because of the PL’s initial public announcement; and (ii) the Merits Judgment did not contain any significant details relating to the disclosure dispute – it did not state the nature of the documents and information requested or the significance of those documents and information. The confidential nature of the arbitration had to be weighed against the public interest in ensuring appropriate standards of fairness in the conduct of arbitration (the ‘Publication Judgment’).

Appeal

Giving the leading judgment, chancellor of the High Court Sir Julian Flaux (with whom both the master of the rolls and Males LJ agreed) dismissed the appeal and held that Moulder J had made the correct evaluative assessment in ordering that the Merits Judgment and the Publication Judgment should be published. The chancellor held:

• Publication would not lead to disclosure of significant information. Only the dispute’s existence and the arbitration would be disclosed which were already in the public domain and that the substance of the underlying disclosure dispute would not be disclosed.
• There was a ‘legitimate public interest in how disputes between the Premier League and member clubs are resolved and, in particular, in the allegations of structural bias made by the club which appears to have led to a change in the rules’.
• Although both parties objected to publication of the judgments, the parties’ wishes warranted careful scrutiny.
• In so far as the Merits Judgment confirmed the entitlement of the PL to claim specific performance against member clubs, it was in the public interest and significant.
• Finally, MC’s argument that publication of the judgments would cause it prejudice or detriment should be treated with ‘considerable scepticism’ and the potential damage to MC’s relations with commercial partners was ‘unconvincing’ given the fact that any commercial partner would conduct due diligence and learn of the investigation.

Commentary

Although the decision concerns sports arbitration (also see the recent decision in Newcastle United Football Company Limited v The Football Association Premier League Limited and others [2021] EWHC 450 (Comm)), it has general application. It provides a helpful illustration of the courts’ approach when determining whether a judgment should be published and demonstrates the inherent tensions that exist between the parties’ desire for their dispute to remain confidential and the principle of open justice in court proceedings. In reaching its decision, the court will not, however, publish its judgment without carefully analysing the facts and the nature of the confidential information and balancing this against the public interest of publication.

Masood Ahmed is an associate professor at the University of Leicester and member of the Civil Procedure Rule Committee