![HT-2025-000129 - [2025] EWHC 1654 (TCC)](https://backend.juristeca.com/files/emisores/logo_yJUntHA.png){kind=logo}
The Authorities
The Authorities
I have been referred to a number of authorities.
In SRCL Limited v The National Health Service Commissioning Board (also known as NHS England) [2018] EWHC 1985 (TCC), Fraser J. referred to the decision of Hamblen J. in Libyan Investment Authority v Societé Générale SA and others [2015] EWHC 550 (Comm) where at paragraph [34] the learned judge said:
The imposition of a confidentiality club and, if so, its terms, generally involves a balancing exercise. Factors relevant to the exercise of the court's discretion are likely to include:
The court's assessment of the degree and severity of the identified risk and the threat posed by the inclusion or exclusion of particular individuals within the confidentiality club - see, for example, InterDigital Technology Corporation v Nokia [2008] EWHC 969 at [18] and [19].
The inherent desirability of including at least one duly appointed representative of each party within a confidentiality club - see, for example, Warner-Lambert v Glaxo Laboratories [1975] RPC 354 at 359 to 361.
The importance of the confidential information to the issues in the case - see Roussel UCLAF v ICI at [54] and IPCom GmbH v HTC Europe [2013] EWHC 52 (Pat) at [20].
The nature of the confidential information and whether it needs to be considered by people with access to technical or expert knowledge - see IPCom GmbH v HTC Europe at [18].
Practical considerations, such as the degree of disruption that will be caused if only part of a legal team is entitled to review, discuss and act upon the confidential information - see Roussel UCLAF v ICI at [54] and InterDigital Technology Corporation v Nokia at [7].
Fraser J. then commented at paragraph [71]:
To the factors relevant to the court's discretion at [34] I would add the following:
In procurement litigation, the confidential information of other parties (namely the other bidders) will usually be held by the contracting authority. Although it will not invariably be relevant to the claim by the dissatisfied bidder, it will often be relevant. No order for disclosure should be made in respect of such third party confidential information without giving that other third party the right to make representations to the court.
As part of considering the balancing exercise necessary, there are a range of options or special measures available to the court which will both preserve the confidentiality of the information, and be consistent with the dissatisfied bidder's rights and the administration of justice. These issues can usually be sensibly resolved by consent.
However, if consent is not possible, the court will then rule on any opposed application in this respect, particularly in relation to the identity of personnel who need to see the confidential information and may wish to give evidence in respect of it. It is not a solution to an objection by a contracting authority (or another bidder) to assume that a party's solicitor acting in the litigation should and can be called to give primary evidence of fact in that party's favour.
For my present purposes, paragraph [34(2)] of Hamblen J.’s judgment is to be noted.
In Anan Kasei Co. Ltd and others v Neo Chemicals & Oxides (Europe) Ltd and another [2020] EWHC 2503 (Pat), Marcus Smith J. said at paragraphs [9] and [10]:
Exclusion of a party to the proceedings from a confidentiality ring obviously requires particularly clear and cogent justification. Thus, in TQ Delta v. Zyxel, Henry Carr J stated:
In my judgment, the authorities discussed above establish that it is exceptional to limit access to documents in the case to external eyes only, so that no representative from the party which is subject to the restriction can see and understand those documents. An external eyes tier does not require justification for the restriction by reference to individual documents. It enables one party to decide to exclude all representatives of the opposite party from access to any document that it chooses, and places the onus on the party seeking access to apply to court to obtain it. That approach, in my judgment, is wrong in principle…
…
An external, eyes only, tier enables a blanket exclusion of access by one of the parties to the relevant parts of key documents. This is incompatible with the right to a fair hearing under Article 6 of the European Convention on Human Rights, and with the principles of natural justice. It is incompatible with the obligations of lawyers to their clients. The principles on which solicitors are obliged to act on behalf of clients instructing them require the sharing of all relevant information of which they are aware."
Similarly, Roth J stated in Infederation v. Google:
"…In my view, the important points to emerge from the authorities are that: (i) such arrangements [that is, confidentiality rings excluding a client, party to the proceedings] are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness. Any dispute over admission of an individual to the ring must be determined on the particular circumstances of the case."
Later, at paragraph [16], he said:
It seems to me that where a party contends that a particular person should be allowed into the confidentiality ring, the court should be slow to second guess that contention. It is, after all, a basic right of every party to conduct litigation as he, she or it sees fit. That does not mean a party can, by bare assertion, dictate the terms of a confidentiality ring: there will always court scrutiny, and the touchstone for that scrutiny is fairness.
Mr Coppel KC suggested that this decision is no longer good law, but the Court of Appeal decision to which I now turn is against him on this point.
In OnePlus Technology (Shenzhen) Co. Ltd and others v Mitsubishi Electric Corporation and another [2020] EWCA Civ 1562, Floyd L.J. said:
TQ Delta concerned a confidentiality regime in a FRAND case. Henry Carr J declined to establish an external eyes only confidentiality regime. At [21], Henry Carr J said:
"In my judgment, the authorities discussed above establish that it is exceptional to limit access to documents in the case to external eyes only, so that no representative from the party which is subject to the restriction can see and understand those documents. An external eyes tier does not require justification for the restriction by reference to individual documents. It enables one party to decide to exclude all representatives of the opposite party from access to any document that it chooses, and places the onus on the party seeking access to apply to court to obtain it. That approach, in my judgment, is wrong in principle."
I agree that an external eyes only tier is exceptional. I also agree that it is wrong to place the onus on the receiving party to establish that a document is non-confidential. I do not agree, however, that an approach where prima facie highly confidential documents are first disclosed on an external eyes only basis is wrong in principle. The authorities establish that staged or progressive disclosure of confidential information is permissible. Indeed, later in his judgment, Henry Carr J said this at [23(iv)]:
"external eyes only access to individual documents of peripheral relevance, whose disclosure would be damaging, may be justified in specific cases…".
It appears that what concerned Henry Carr J was "the exclusion of access by one of the parties to the relevant parts of key documents" (see [24]). I agree that that should not be the result of the establishment of an external eyes only tier.
It is worth pondering an alternative approach under which all documents which a party contended should be AEO should be individually examined by the court before they are so designated. Under such an approach the first step would inevitably have to be that some limited form of disclosure be afforded to the opposing party. The court would then have to decide on the basis of submissions and evidence from each side whether the document justified AEO or required more liberal disclosure. There is no difference in substance between that approach, and the approach where the disclosing party can initially designate documents AEO, subject to the receiving party's ability to challenge the designation, provided that the disclosing party does not unfairly seek to take advantage of the opportunity. To the extent that Henry Carr J was outlawing the approach adopted in this case, I respectfully disagree. There was in any event, as I have said, no appeal from Mann J's order.
In Infederation Roth J added the observation (see [41]) that confidentiality rings were sometimes established in competition cases to prevent leakage in both directions of confidential information. Sharing of pricing information can of course contravene competition law, and the court ought not to facilitate it by means of the disclosure process unless it is impossible not to do so. His review of the authorities concluded at [42]:
"In my view, the important points to emerge from the authorities are that: (i) such arrangements are exceptional; (ii) they must be limited to the narrowest extent possible; and (iii) they require careful scrutiny by the court to ensure that there is no resulting unfairness. Any dispute over admission of an individual to the ring must be determined on the particular circumstances of the case."
Anan Kasei was a further case in which a senior executive of the receiving party was admitted to the confidentiality club against suitable undertakings as to misuse. Marcus Smith J took account of the fact that the receiving party was a qualified lawyer.
Drawing all this together, I would identify the following non-exhaustive list of points of importance from the authorities:
In managing the disclosure of highly confidential information in intellectual property litigation, the court must balance the interests of the receiving party in having the fullest possible access to relevant documents against the interests of the disclosing party, or third parties, in the preservation of their confidential commercial and technical information: Warner Lambert at page 356; Roussel at page 49.
An arrangement under which an officer or employee of the receiving party gains no access at all to documents of importance at trial will be exceptionally rare, if indeed it can happen at all: Warner Lambert at page 360: Al Rawi at [64].
There is no universal form of order suitable for use in every case, or even at every stage of the same case: Warner Lambert at page 358; Al-Rawi at [64]; IPCom 1 at [31(ii)].
The court must be alert to the fact that restricting disclosure to external eyes only at any stage is exceptional: Roussel at [49]; Infederation at [42].
If an external eyes only tier is created for initial disclosure, the court should remember that the onus remains on the disclosing party throughout to justify that designation for the documents so designated: TQ Delta at [21] and [23];
Different types of information may require different degrees of protection, according to their value and potential for misuse. The protection to be afforded to a secret process may be greater than the protection to be afforded to commercial licences where the potential for misuse is less obvious: compare Warner Lambert and IPCom 1; see IPCom 2 at [47].
Difficulties of policing misuse are also relevant: Warner Lambert at 360; Roussel at pages 51-2.
The extent to which a party may be expected to contribute to the case based on a document is relevant: Warner Lambert at page 360.
The role which the documents will play in the action is also a material consideration: Roussel at page 49; IPCom 1 at [31(ii)];
The structure and organisation of the receiving party is a factor which feeds into the way the confidential information has to be handled: IPCom 1 at [33].
To this I would add that the court must be alert to the misuse of the opportunity to designate documents as confidential. It remains the case that parties should not designate such material as AEO, even initially, unless they have satisfied themselves that there are solid grounds for establishing that restricting them in that way is necessary to protect their confidential content.
Paragraphs [39(iv)] and [39(v)] are important for the decision which I have to make. I note that a distinction can be drawn between initial disclosure and later stages of the proceedings (paragraphs [39(iii)] and [39(v)]) but I also note the expression “at any stage” in paragraph [39(iv)].
Finally, I was referred to the decision of Trower J. in JSC Commercial Bank Privatbank v IGOR Valeryevich Kolomoisky and others [2021] EWHC 1910 (Ch) in which he reviewed the authorities and applied the guidance given by the Court of Appeal in OnePlus Technology.