In Manchester City Football Club Ltd v Football Association Premier League Ltd and others [2021] EWCA Civ 1110, the English Court of Appeal considered whether to order the publication of a High Court judgment that rejected challenges to an arbitral award under sections 67 and 68 of the English Arbitration Act. Weighing the factors militating in favour of publicity against the desirability of preserving confidentiality, the Court of Appeal determined that here the balance fell clearly in favour of publication.

Background

The background to this matter is covered in our previous blogpost on the High Court judgment here. In this judgment, dated 17 March 2021, the High Court dismissed a challenge brought by Manchester City Football Club (MCFC) against an award made under sections 67 and 68 of the English Arbitration Act (the Merits Judgment).

The hearing of MCFC’s challenge was held in private under CPR 62.10. The High Court judge also refused MCFC permission to appeal. When she sent the draft Merits Judgment to the parties, the judge indicated that she was minded to publish it. Although both parties opposed publication, in her judgment dated 24 March 2021 (the Publication Judgment, which can be found here), the judge determined that the Merits Judgment should be published on the basis that it did not contain significant confidential information and that it was difficult to see any real prejudice from disclosure of the existence of the dispute as to production of documents and information.

MCFC appealed the Publication Judgment to the Court of Appeal.

Decision on jurisdiction

The first question for the Court of Appeal, was whether it had jurisdiction to hear the appeal in circumstances where the High Court judge had refused permission to appeal.

The Court of Appeal was clear that the effect of sections 67(4), 68(4) and 24(6) of the English Arbitration Act was that the leave of the Court was required for any appeal from a decision of the Court under those sections. This was a policy decision to limit further appeals and thereby prevent any delay in the resolution of disputes decided by arbitration. However, MCFC argued, amongst others, that an appeal against a decision to publish did not fall within those restrictions because a publication decision was not a substantive decision under those sections and would not impede the policy objective, as the arbitration could continue to take place in private.

The Court determined that as the judge’s decision to publish was an application of common law principles as set out in City of Moscow v Bankers Trust [2004] EWCA Civ 314; [2005] QB 207, it was not a decision of the Court under sections 25, 67 or 68 of the English Arbitration Act, and was not, therefore, caught by the limitation on the right of appeal. The Court was therefore satisfied that it had jurisdiction to hear the appeal under section 16 of the Senior Courts Act 1981, and that the restriction in section 18(1)(g) of that Act was not applicable. However, the Court did not make any finding in relation to the more difficult question of whether case management decisions in relation to an arbitration would be caught by the limitations in sub-section (4) of each section in circumstances where permission to appeal was refused.

Publication decision

MCFC’s arguments

MCFC argued that although the Merits Judgment did not contain any significant details of the substance of the disclosure dispute, the parties had a reasonable expectation of confidentiality being maintained. Publication of the Merits Judgment would disclose that there was a decision in the arbitration at an early stage. It was also not publicly known that MCFC had argued that there was no power to arbitrate the particular dispute under the PL rules and that there was apparent bias. Publication would also lead to extensive press comment and speculation, which could be prejudicial for MCFC, for example in its dealings with commercial partners. MCFC also argued that publication was not in the public interest because the club’s complaint was specific to its case.

MCFC relied on the fact that its appeal was supported by PL. However, that support was subject to the condition that the PL could rely on the Merits Judgment in other relevant proceedings between it and other member clubs and disclose the Merits Judgment as clear confirmation by the Commercial Court that the PL could bring specific performance proceedings against member clubs under the PL Rules.

Dismissal of the appeal

The Court of Appeal dismissed the appeal in its entirety, concluding that the balance here was clearly in favour of publication.

First, the Court of Appeal considered the judgment in the case of City of Moscow, which held that it was necessary to weigh confidentiality and any detriment to the parties from publication against the public interest in publication, particularly where the judgment raised matters of general importance. In general, the imperative of open justice would require publication where this could be done without disclosing significant confidential information.

The Court held that publication would not lead to disclosure of significant confidential information in this case. Publication would disclose the existence of the dispute and the arbitration in circumstances where it was already public knowledge that the underlying investigation by the PL was taking place, and now too the existence of the dispute and the arbitration. It was “unreal” to suggest that the challenge to the jurisdiction of the arbitrators and the unsuccessful allegation of apparent bias was “in any sense” significant confidential information.

The Court also determined that there was a legitimate public interest in: (i) how disputes between the PL and member clubs are resolved and, in particular, in the allegation of structural bias made by MCFC (which appeared to have led to a change in the rules in the appointment of arbitrators in 2020), (ii) maintaining appropriate standards of fairness in the conduct of arbitrations and (iii) there being some explanation for the delay in the present case, where the investigation was made public in March 2019 but had hardly advanced since then.

Moreover, the PL’s desire to rely on the Commercial Court’s confirmation was of great significance for the future of the PL, all member clubs and practitioners. Indeed, Lord Males expressed that the imposition of that condition was fatal to the appeal. The compromise reached, whereby the PL could rely on that judgment in the event of disputes with other clubs, was unacceptable as any potentially important precedent had to be available for all.

Finally, disclosure of the existence of the dispute as to production of documents and information could hardly give rise to any prejudice or detriment to MCFC. Ultimately, the public interest in publication outweighed any confidentiality, and there was no good reason for deferring publication.

Comment

This judgment provides useful guidance on the factors that the English Court will consider when determining whether or not to publish arbitration-related Court judgments (with or without anonymisation).

Whilst the Court of Appeal was keen to emphasise to the business community that Commercial Court judges can be trusted to ensure that genuinely confidential information is not published, the Court will nonetheless favour publication where this can be done without disclosing “significant confidential information”. Although the meaning of “significant confidential information” will need to be assessed on a case by case basis, it is of interest that here, procedural decisions regarding the appointment of arbitrators and considerations of apparent bias were not considered sufficiently significant, and that the Merits Judgment did not contain significant details of the substance of the dispute.

In this case, the Court’s decision to publish was clearly influenced by (i) the fact that the subject matter of the dispute had been widely reported by the press for some time, (ii) the public interest in disputes between the PL and member clubs, and (iii) the fact that the Merits Judgment constituted an important precedent for future disputes between the PL and member clubs.

For more information, please contact Andrew Cannon, Partner, Elizabeth Kantor, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.

Andrew Cannon
Andrew Cannon
Partner
+44 20 7466 2852
Elizabeth Kantor
Elizabeth Kantor
Professional Support Lawyer
+44 20 7466 2406