| PRACTICE — Discovery — Commercially sensitive documents — Confidentiality ring established for disclosure in High Court proceedings — One party’s lawyers also acting in regulatory and tribunal proceedings involving same parties — Whether disclosure to be restricted to lawyers not acting in other proceedings — CPR r 31.22
Virgin Media Communications Ltd and others v British Sky Broadcasting Group plc and another [2008] EWCA Civ 612; [2008] WLR (D) 183
CA: Lord Phillips of Worth Matravers CJ, Jacob and Lloyd LJJ: 6 June 2008
It was desirable that a litigant should be free to instruct the lawyer of his choice, particularly if that lawyer were already acting for him and he wished the lawyer to continue to act in a related matter. It was hard to conceive of circumstances where the fact that documents had been disclosed to lawyers acting for a party in one set of proceedings would preclude those lawyers from acting in other proceedings between the same parties.
The Court of Appeal so held in giving reasons for its dismissal on 14 May 2008 of an appeal by the defendants, British Sky Broadcasting Group plc and British Sky Broadcasting Ltd (“Sky”), against Lewison J’s refusal in the Chancery Division on 4 April 2008 to grant an order restricting inspection of certain sensitive documents disclosed in proceedings brought by the claimants, Virgin Media Communications Ltd, Virgin Media Television Ltd and Virgin Media Ltd (“Virgin”), to lawyers who were not acting for Virgin in certain other proceedings.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that in three separate sets of proceedings Virgin was alleging that Sky was offending against fair competition rules: (1) High Court proceedings in which Virgin claimed that Sky was abusing a dominant position contrary to s 18 of the Competition Act 1998; (2) an investigation by the Office of Communications (“the Ofcom review”); and (3) Competition Appeal Tribunal (“CAT”) proceedings. Sky and Virgin had been required to disclose relevant documents in the High Court proceedings. Many of the documents were, however, of such commercial sensitivity that the parties had agreed that their disclosure would be restricted to identified external legal advisers who would give express undertakings not to disclose them or their contents to anyone, including their own clients, and only to use them for the purpose of the High Court proceedings. Those undertakings were subject to the court’s power to give permission for a document, or the information in it, to be used for a purpose other than that for which it was disclosed, in accordance with CPR r 31.22(1)(b). Sky, contending that that agreement did not go far enough, had applied for an order restricting inspection of their sensitive documents to lawyers who were not also acting for Virgin in the Ofcom review or the CAT proceedings. Not only was the order sought unusual, it was, so far as their Lordships were aware, without precedent in this jurisdiction. Its effect would be that Virgin would be prevented from continuing to use the individual lawyers of their choice in more than one set of proceedings. Their Lordships started with the proposition that it was desirable that a litigant should be free to instruct the lawyer of his choice. That was particularly true if the lawyer were already acting for the client and the client wished the lawyer to continue to act in a related matter. The duty not to make ulterior use of disclosed documents was not identical in principle to the obligation of confidentiality that existed between a solicitor and his own client. In the former case the court could give permission for the use of a disclosed document for a purpose other than the action in which it was disclosed. That was an important distinction in the context of the present case. The risk that information disclosed in the High Court proceedings would be improperly used in the CAT proceedings was fanciful. For that reason alone there was no justification for preventing the lawyers whomVirgin had instructed to represent them in both proceedings from seeing the sensitive documents that had been disclosed in the former proceedings. Sky’s application was only possible because of the special arrangements that had been made to restrict disclosure to external lawyers. Those arrangements had been made because the documents were commercially sensitive. But for that sensitivity, disclosure would have been made to the parties and their in-house lawyers. They would then necessarily have carried that knowledge with them when participating in the other sets of proceedings. There was no reason why the external lawyers should not be in the same position. There was a further point. Each set of proceedings was concerned with ensuring fair competition. That aim justified the requirement that the parties gave disclosure in the High Court proceedings. It was in the public interest that the court should have regard to the contents of the parties’ confidential documents, in so far as those were material. The same public interest would be served by the tribunals in the other sets of proceedings having regard to the information in those documents, in so far as material in those proceedings. In the unlikely event that information in the sensitive documents were to suggest that the CAT, Ofcom or the Competition Commission were proceeding on a false basis in one of the other sets of proceedings, it was desirable that the lawyers should be aware of that and in a position to apply to the High Court for permission to draw the documents in question to the attention of the relevant tribunal. In a rare case, the fact that documents had been disclosed to solicitors acting for a party in one set of proceedings might conceivably preclude those solicitors from acting for a different party in another set of proceedings. It was hard to conceive of circumstances where disclosure in one set of proceedings would preclude lawyers from acting in other proceedings between the same parties. |
