NEWSLETTER-2019-metin

180 NEWSLETTER 2019 Summary of the Court’s Decision In relation to the first application, Justice Moulder, in his judg- ment, reviewed the rules set out and Dring 5 (although the court noted that this decision was under appeal to the Supreme Court), in order to determine which categories of documents should be granted, and how the court should exercise its discretion and grant permission. The court applied the test set out in Dring. The court considered (i) the interest of the applicant and particu- larly considered the fact that the CIArb supervises and monitors the performance of the members and exercises disciplinary control, (ii) the confidentiality of the arbitration, and (iii) the harm which may be caused by access to the documents, which it found to be minimal. The court emphasized that: “ As is clear from Dring the essential purpose of granting access to such documents is to provide open jus - tice, that is to say to facilitate maintenance of the quality of the judicial process in all its dimensions, so that the public may be satisfied that the courts are acting justly and fairly and the judges in accordance with their judicial oath. In this case the open justice principle is engaged but the documents are not being sought in the interests of open justice. Whilst on the principles cited above, the court should lean in favour of granting permission, the court has to consider the non-party’s reasons for seeking copies of the documents and assuming the applicant has a legitimate purpose, balance that against the party to the proceedings’ private interest in preserving their confidentiality. 6 ” The court considered that the CIArb had a legitimate interest in seeking access to the Documents 7 and stated that it had to weigh the interest of the CIArb against preserving confidentiality. The court also acknowledged that the documents prepared throughout the arbitration were confidential, and that there was an implied obligation (which arose out of the arbitration itself) not to disclose or use these docu- ments. 5 [2018] EWCA Civ 1795 can be accessed at: https://www.bailii.org/ew/cases/ EWCA/Civ/2018/1795.html (Access date: April, 2019). 6 Para. 37 of [2019] EWHC 460 (Comm). 7 Para. 42 of [2019] EWHC 460 (Comm).