Newcastle United Football Company Ltd v The Football Association Premier League Ltd
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 05 March 2021 |
| Neutral Citation | [2021] EWHC 450 (Comm) |
| Docket Number | Case No: LM-2020-000206 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 05 March 2021 |
[2021] EWHC 450 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (QBD)
IN PRIVATE
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: LM-2020-000206
Ms Shaheed Fatima QC, Mr Nick de Marco QC and Mr Tom Richards (instructed by Dentons UK and Middle East LLP for the Claimant
Mr Adam Lewis QC and Mr Jason Pobjoy (instructed by Bird & Bird LLP) for the First Defendant
The Second Defendant in Person (Written Submissions only)
The Third and Fourth Defendants did not appear and were not represented.
Hearing date: 24 February 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
HH Judge Pelling QC:
Introduction
The issue that I now have to determine concerns the degree to which if at all the substantive judgment in these proceedings should be published un-anonymised and unredacted (the claimant's preferred position) or not published at all or at any rate not published until after publication of the Final award in the pending arbitration between the claimant (“NUFC”) and the first defendant (“PLL”) (“the index reference”), as is PLL's preferred outcome. Both parties' fallback positions involve some redaction but NUFC maintains there should in any event be no anonymisation whereas PLL maintains that if the objective of redaction is to be achieved then anonymisation is also necessary. So far as that is concerned, PLL is content to adopt the anonymisation I set out in the draft judgment that I circulated prior to the last hearing with the additional anonymisation to “J” of the English Football League (“EFL”) to which the 2017 Advice was provided jointly with PLL. Both parties are content that if I direct anonymisation and redaction, I should create a confidential appendix consisting of the whole of the substantive judgment in its unredacted and un-anonymised form rather than the specific parts removed from the published version. This is obviously sensible.
NUFC's Submissions
NUFC submits that the whole of the judgment should be published in an unredacted and un-anonymised form. In support of that submission, Ms Shaheed Fatima QC submits on behalf of NUFC that this follows as a matter of established general principle, which she argues is to be found in two recent authorities, which apply earlier authorities to broadly similar effect. Her broad submission is that the substantive judgment does not contain significant confidential information and so should be published without either redaction or anonymisation.
PLL's Submissions
PLL submits that the judgment ought not to be published or at any rate consideration as to whether it should be published should be postponed until after the arbitration has been concluded because:
i) Even with very significant redaction and anonymisation, there remains a real risk that an informed member of the public and/or the press would know precisely who the parties are, and what this judgment concerns;
ii) The risk referred to in (i) is heightened by the fact that there is limited material in the public domain that would make the linking of the judgment to the dispute and the parties to it much easier than would otherwise be the case;
iii) Once the judgment is identified as being concerned with the dispute, that will result in much more material entering the public domain than would otherwise be the case; and
iv) There is no countervailing public interest that justifies publication because:
a) No new point of law or practice arises or is considered in the judgment;
b) The extent of the redaction that would be necessary to eliminate all reference to “ significant confidential material” that is not already in the public domain would be such as to render the judgment incomprehensible and thus destroy any value that might be obtained from the judgment as an example of the application of established principle to particular facts; and
c) NUFC has not demonstrated any legitimate reason for wanting the judgment to be published.
In relation to (iii) above it is worth highlighting at this stage that the result for which PLL contends would only occur if there was within the judgment “ significant confidential material” (as to which see paragraph 8(ii) below) that is not already in the public domain.
Applicable principles
The principal authority on which Ms Fatima QC relies is City of Moscow v. Bankers Trust Co [2004] EWCA Civ 314; [2005] QB 207, which was an appeal from a refusal by a Commercial Court Judge to permit publication of a judgment in an arbitration claim. The Court of Appeal permitted the publication of a summary of the judgment by Lawtel which did not disclose any sensitive or confidential information but otherwise upheld the decision of the judge. The Court of Appeal judgment sets out the principles that apply both to deciding whether an arbitration claim hearing should be heard in private and whether the resulting judgment should be published other than to the parties. I referred to that judgment in my substantive judgment when deciding that the hearing should take place in private.
Before turning to the points of principle set out in City of Moscow v. Bankers Trust Co (ibid.), it is important to remember that that case was concerned with an arbitration claim brought under s.68 of the Arbitration Act 1996 after publication of the arbitral award to which that case related. In this case, the arbitral proceedings have not got further than the appointment of a panel. That is a material distinction relied on by PLL because it submits that makes the issues of confidentiality that arise more sensitive than may be the position after completion of the arbitral process. In my judgment, whilst the distinction is a valid one to bear in mind, whether it is material in any particular case will itself be fact sensitive and will depend on what is said to be the significant confidential information that would emerge from the publication of the judgment in an un-anonymised and unredacted form.
Two other preliminary points need to be mentioned at this stage. Firstly, NUFC relies on the fact that the substantive first instance judgment in City of Moscow v. Bankers Trust Co (ibid.) contained “ … material of a highly sensitive nature both politically and commercially …” – see paragraph 9 of Mance LJ's judgment. It maintains that that elevates that case into a different category of sensitivity from this case. I return to that point later in this judgment. I reject however any implicit suggestion that it is only where such material is to be found in a judgment that publication other than to the parties will be refused.
Finally, whilst City of Moscow v. Bankers Trust Co (ibid.) contains a comprehensive summary of the general principles leading to court proceedings generally taking place in public, it is not necessary that I refer to them further in this judgment. I have summarised the law in this area as it relates to arbitration claims in paragraph 16–18 of my substantive judgment and I do not understand either party to contend that my summary of the applicable general principles is wrong. I don't intend to repeat the same summary. I incorporate it by reference into this judgment and apply it as necessary below. That said, this judgment is concerned with the publication of a judgment rather than the conduct of a hearing and in that context it is necessary at this stage to note two points emphasised in the Vice-Chancellor's judgment in that case – first that a greater need for imposing a requirement for confidentiality must be shown before it is decided not to publish a judgment – see paragraph 56 – and secondly that the weight of the onus resting on the party seeking to keep from the public the judge's reasons for the order he has made is a heavy one – see paragraph 57.
With these preliminaries put to one side, the following general principles are set out principally in the judgment of Mance LJ in relation to the publication of judgments following a private hearing of an arbitration claim. In summary:
i) The starting point in relation to a hearing, although relevant to determining what should be done in respect of a judgment, is not determinative and there is a clear distinction to be maintained between the considerations governing a hearing and those governing the resulting judgment or order – see City of Moscow v. Bankers Trust Co (ibid.) per Mance LJ at paragraph 37 — because a reasoned judgment following a hearing in private of an arbitration claim stands at a different point in the spectrum to the hearing itself (as to which see (iv) below) and so raises different considerations – see City of Moscow v. Bankers Trust Co (ibid.) per Mance LJ at paragraph 43 and the Vice Chancellor's judgment at paragraphs 56–57;
ii) The judgment should be given in public where this can be done without disclosing significant confidential information or can be done so by suitable anonymisation and/or redaction — see City of Moscow v. Bankers Trust Co (ibid.) per Mance LJ at paragraph 39 and 40;
iii) The desirability of a public judgment is particularly present where a judgment involves points of law or practice which may offer future guidance to lawyers or practitioners or where the judgment concerns a claim under s.68 of the Arbitration Act 1996 because of the public interest engaged in such cases of maintaining appropriate standards of fairness in the...
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