LC-2023-000734 - [2025] UKUT 00058 (LC)

Vodafone’s case was that the various contribution agreements and master services agreements entered into between Vodafone and CTIL were confidential documents, containing information of competitive, business and/or commercial sensitivity.

As part of the directions for disclosure in the Directions Order, the Deputy Chamber President ordered Vodafone to file a witness statement from a senior officer or employee explaining the relationship between Vodafone and CTIL with respect to the Vodafone Site, supported by documents which were sufficient to give the Tribunal a clear understanding of that relationship. In response to this direction Vodafone provided a first witness statement of Clare Daniels, Lead Counsel of Vodafone, dated 8^th March 2024. In that witness statement Ms Daniels disclosed the existence of the contribution agreements and exhibited a redacted version of the 2021 Contribution Agreement, together with two tables showing differences between the 2021 Contribution Agreement and the 2012 Contribution Agreement. The redactions, which were said by Ms Daniels to be justified on the grounds of non-relevance, confidentiality and competitive, business and/or commercial sensitivity were very extensive, blanking out the bulk of the 2021 Contribution Agreement. In the same witness statement Ms Daniels also disclosed the existence of a master services agreement, but did not exhibit this unspecified master services agreement. In taking this stance Ms Daniels asserted that the nature of the relationship between Vodafone and CTIL, in relation to the Vodafone Site, “being one of agency”, was governed by the 2021 Contribution Agreement. Ms Daniels also relied on the same grounds of alleged non-relevance, confidentiality and business and commercial sensitivity as she had relied upon in relation to the 2021 Contribution Agreement.

The categories of documents which were to be disclosed were set out in paragraph 7 of the Directions Order. On the service of Ms Daniels’ witness statement, Vodafone made an application in the Termination Proceedings, on 8^th March 2024, for a direction confirming that it was not required, by paragraph 7 of the Directions Order, to disclose documents other than those exhibited to Ms Daniels’ witness statement. Perhaps not surprisingly, this attempt to pre-empt the disclosure process was firmly rejected by the Deputy Chamber President who, by an order made on 15^th March 2024, dismissed the application without a hearing. As the Deputy Chamber President pointed out, it was not for the Tribunal pre-emptively to rule on the adequacy of Vodafone’s disclosure, and there was no reason to think that the production of Ms Daniels’ witness statement entitled Vodafone to a dispensation from the requirement to comply with paragraph 7 of the Directions Order.

For its part, Icon was not satisfied with the level of disclosure provided by Ms Daniels’ witness statement, and issued an application in the Termination Proceedings for an order that unless Vodafone made full disclosure of its agreements with CTIL, its case should be struck out.

It is not necessary to go further into the detail of the dispute over disclosure, or its procedural history. What is relevant for present purposes is that the application for an unless order and the dispute over disclosure were dealt with by an order of the Deputy Chamber President, made on 5^th June 2024, the terms of which were agreed between the parties. By this consent order (“the First Confidentiality Order”) a confidentiality ring was established. The effect of the First Confidentiality Order was that disclosure of Confidential Information (as defined) by Vodafone was made only to the Relevant Advisers (as defined).

The definitions and terms of the First Confidentiality Order are somewhat complex. For present purposes what is relevant is that the First Confidentiality Order provided for the contribution agreements and the master services agreements to be disclosed to the Relevant Advisers, subject to the redaction of certain figures and percentages (defined as Pricing Information) and certain other permitted redactions, subject to undertakings by the Relevant Advisers to maintain the confidentiality of the agreements. The Relevant Advisers comprised identified solicitors within Eversheds Sutherland (International) LLP (the Respondents’ solicitors) and counsel on the Respondents’ side. The Relevant Advisers included Mr Watkin. The Relevant Advisers did not include, as we understand the position, any members of the legal team within Eversheds Sutherland (International) LLP acting for the Respondents in these proceedings. To complicate matters further, there was an inner confidential ring, established for the purposes of allowing the Respondents’ solicitors who were Relevant Advisers to police redactions made by Vodafone which were not redactions of Pricing Information. There was also an outer confidential ring, which included all the Relevant Advisers; that is to say the specified solicitors and counsel.

A further confidentiality order, the terms of which were also agreed by the parties, was made by Mrs Martin on 31^st October 2024. By this second consent order (“the Second Confidentiality Order”) the outer confidentiality ring was extended to include Mr Clark, as counsel for the Respondents. The Second Confidentiality Order also contained detailed directions for the conduct of the Trial, in order to maintain the confidentiality of the Confidential Information.

The practical effects of the directions in the Second Confidentiality Order were, in summary, as follows:

As the Trial progressed, and the issues (both legal and evidential) became clearer, we began to entertain some doubt as to whether the confidentiality arrangements, which constituted a substantial inroad into the principle of open justice, were strictly justified or necessary. We concluded however, so far as the Trial was concerned, that it would not have been appropriate or sensible to raise, on our own initiative, the question of whether the confidentiality arrangements should be disrupted. We reached this conclusion principally for the following reasons. First, the confidentiality arrangements were the product of agreement between the parties. Second, we were not asked by either party to amend or terminate the confidentiality arrangements, so far as the Trial itself was concerned. Third, although there was complaint made by the Respondents’ counsel that the confidentiality arrangements were to the material prejudice of the Respondents, this was not our view. The confidentiality arrangements did not, in our view, generate a material unfairness in the Trial or material prejudice to the Respondents, particularly given that the cross examination and submissions in the relevant parts of the Trial were left in the capable hands of Mr Watkin and Mr Clark. Fourth, raising the question of amendment or termination of the confidentiality arrangements, on our own initiative, would have disrupted the progress of the Trial, not least because it would have required us to give the parties an opportunity to make submissions on the question of whether confidentiality should be maintained.

The same does not apply to this decision. We have not regarded it as necessary, in our references to the Contribution Agreements and the 2012 MSA in this decision, to make any redactions or to keep any part of this decision private. In our view the parts of the Contribution Agreements and the 2012 MSA to which we make reference and which we analyse in this decision do not require or justify any confidentiality restrictions. In the event, and on circulation of the draft version of this decision for corrections, the parties have not sought any confidentiality restrictions in relation to the content of this decision. We have also given directions in relation to the circulation of the draft version of this decision. Those directions include a direction, which now has effect, that the First and Second Confidentiality Orders, as referred to above, do not apply to this decision.