CL-2022-000456 - [2025] EWHC 1614 (Comm)

The proceedings were commenced by Eurochem NW2 in August 2022. Eurochem AG was added as Second Claimant in January 2025.

It is not necessary to describe the issues in any detail, but they include issues about the views of the relevant national authorities that are responsible for dealing with EU sanctions in a number of countries, including France, the Netherlands and Italy. They also involve exchanges between the parties and the regulators, as well as other events in the EU and in Russia.

It took a long time for the Claimants to provide disclosure. When they did, a large number of documents were significantly redacted, on the basis that some parts of them were irrelevant and confidential; and some documents initially were not produced at all, on the same basis. Such documents included exchanges between Eurochem NW2 and the Italian national authority, the Comitato di Sicurezza Finanziera (“CSF”). These documents responded to issue for disclosure no. 6, which was specifically concerned with exchanges with the CSF; I refer to them for convenience as “the IFD6 documents”.

At a hearing on 5 December 2024, Dias J concluded that the IFD6 documents were relevant. However, the Claimants maintained their position on confidentiality. In the course of the hearing, Dias J asked what the basis was of the assertion of confidentiality. She was told that this was twofold:

At that hearing, counsel for ING (who effectively led the argument on this point on behalf of the Defendants) objected that these were nebulous objections being set out for the first time.

However, Dias J needed to resolve as many issues on disclosure as she practically could; and it was not possible for her to resolve the contested issues as to the confidentiality of the documents in question. Her pragmatic solution was to order that the IFD6 documents be disclosed, but “such disclosure to be provided by way of confidentiality club, the terms of which are to be agreed between the parties with liberty to apply in the event that agreement cannot be reached…”

It transpired that agreement could not be reached as to the terms. They were finally resolved at a further hearing before Dias J, on 18 March 2025. The order recording the relevant terms included the following recital:

“AND UPON the First to Fifth Defendants and Third Party being content for those documents to be disclosed by way of confidentiality club as an interim measure pending disclosure and review of those documents…”

Although the confidentiality club was initially established solely relation to the IFD6 documents, a number of further documents and categories of documents have been added to it subsequently, pursuant to further orders which have not, however, altered the terms of those two orders made by Dias J. Some documents appear to have been added to the confidentiality club by the Claimants spontaneously.

Importantly, none of these documents was added to the confidentiality club because of a ruling, either way, that they were or were not confidential. They were added on an interim basis, it being left open to any party to put confidentiality in issue at a later stage, if so desired. This reflected the practice endorsed by the Court of Appeal in Interdigital v OnePlus [2023] EWCA Civ 166 at [28]:

“The authorities make clear that a staged approach is appropriate… . Imposing a wider form of order at an early stage is plainly sensible… it is more straightforward to relax confidentiality restrictions over the course of proceedings…”