CDE v NOP 2021 EWCA Civ 1908 - 14 December 2021
This appeal is concerned with the tension between open justice and arbitral confidentiality.
It is not possible in this judgment to say much about the facts of the case or anything about the identity of the parties.
The defendants in this action proceeding in the Commercial Court are accused of having orchestrated a fraud. The allegations against them have received some publicity.
Those same allegations were the subject of an arbitration against companies who are said to have some connection with the defendants. Arbitrators were appointed who held a hearing, heard witnesses including individuals who are defendants in this action and produced a lengthy award.
Although we have not seen the award itself, the claimants say and the defendants do not deny that the arbitrators found that the claimants' allegations were well-founded and that the defendants had given false evidence.
Now the question arises whether the arbitrators' award is binding on the defendants in this action. The claimants say that it is, because there is privity between the individual defendants in this case and the companies who were parties to the arbitration. Even if there is no such privity, the claimants say that it would be an abuse of process for the defendants to insist on litigating the same issues all over again. The defendants say on the other hand that the award is not binding on them: there is no privity and it is not an abuse of process for them to defend themselves in this action against the allegations made against them. They say that if the award is not binding on them, it will not be admissible at all as evidence against them in this action in accordance with the rule in Hollington v Hewthorn  1 KB 587, considered more recently in Rogers v Hoyle  EWCA Civ 257,  QB 265 and Ward v Savill  EWCA Civ 1378. Who is right about this is due to be determined at a hearing in February 2022 at which the claimants will apply for summary judgment. I will refer to this as "the privity application", without distinguishing between the privity arguments and the arguments about abuse of process.
Finally, Mr Rabinowitz was no doubt right to observe that the claimants do not come before this court as the disinterested champions of open justice. Rather, they wish the award to become public in order to serve their own private interests in their dispute with the defendants. That, however, is beside the point. The principle of open justice exists in the public interest in order to ensure the proper administration of justice regardless of the wishes or motives of the parties.