The Chartered Institute of Arbitrators v BCD
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Moulder |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] EWHC 460 (Comm) |
| Docket Number | Case No: CL-2015-000555 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 07 March 2019 |
[2019] EWHC 460 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
THE HONOURABLE Mrs Justice Moulder
Case No: CL-2015-000555
Mr J Potts (instructed by the Applicant) for the Applicant
Ms K Gough (instructed by Browne Jacobson LLP) for Respondent B
Hearing dates: 18 February 2019
APPROVED JUDGMENT
This is the judgment on the applications dated 4 June 2018 and 15 June 2018 by the applicant, The Chartered Institute of Arbitrators, for an order under CPR 5.4C(2) to obtain copies of certain documents and for declarations concerning the use of those documents (and related documents) in disciplinary proceedings pending between the applicant and the first respondent, B.
Background
The background to this matter is that B was a fellow of The Chartered Institute of Arbitrators and the applicant has laid disciplinary charges against B in respect of his conduct relating to his appointment in an arbitration.
In January 2013 D applied to the Chartered Institute of Arbitrators for the appointment of an arbitrator after a dispute arose on a contract between C and D. On 4 February 2013 The Chartered Institute of Arbitrators confirmed the appointment of B.
By letter of 18 February 2015 C, through its solicitors, Stephenson Harwood, raised requests for information concerning the nature and extent of the professional relationship between B and D. This followed a judgment of Ramsey J in Eurocom Ltd v Siemens plc [2014] EWHC 3710 (TCC). In that case D had applied to the Royal Institution of Chartered Surveyors for the appointment of an adjudicator, one of whom was B, and a representative of D stated that other named candidates were unable to act. The judge found that there was a strong prima facie case that this representative deliberately or recklessly answered the question as to whether there were conflicts of interest so as to exclude adjudicators who he did not want to be appointed.
D responded to that letter on 27 February 2015. Stephenson Harwood then posed further questions by letter of 11 March 2015 and wrote to B requesting related information.
Further correspondence ensued between the various parties and B called an arbitral hearing to determine whether the arbitral tribunal was “properly constituted”. The hearing took place on 17 April 2015 and following that hearing B issued a ruling confirming that the tribunal was properly constituted and that he had no conflict of interest.
Further correspondence was exchanged in May and June 2015 culminating in Stephenson Harwood writing on 8 July 2015 to B asking him to recuse himself.
An application was brought by C pursuant to section 24(1)(a) of the Arbitration Act 1996 (the “Section 24 Application”) for the removal of B as the arbitrator on the grounds that circumstances gave rise to justifiable doubts as to his impartiality.
A hearing was held on 8 February 2016 and Hamblen J concluded in his judgment of 17 February 2016 [2016] EWHC 240 (Comm) that the grounds for removal were made out in that they raised the real possibility of apparent bias.
Following that judgment B resigned as arbitrator. However the Professional Conduct Committee of The Chartered Institute of Arbitrators determined, following a complaint from a third party, that disciplinary charges should be laid against B and referred to a disciplinary tribunal.
There are six charges made against B. In summary they are as follows:
i) that he failed to disclose interests likely to affect his independence or impartiality; reliance is placed on the transcript of the hearing on 17 April 2015.
ii) that he wrongfully signed and submitted the acceptance of nomination form.
iii) that he failed to make disclosure on the acceptance of nomination form of any involvement with either party to the dispute; reliance is placed on the transcript of the hearing of 17 April 2015.
iv) that he called a meeting which was carried on inappropriately and of his own motion; reliance is placed on the transcript of the hearing.
v) that he questioned counsel during the hearing on 17 April 2015 in an aggressive and/or a hostile manner; reliance is placed on the transcript of the hearing.
vi) to the extent that any of the disciplinary charges referred to above are found proven, it is alleged that B is guilty of misconduct having acted in a manner which is injurious to the good name of the Institute and acted in a manner which fell below the standards expected of a competent practitioner in the field of private dispute resolution.
Applications
By its application of 4 June 2018 (the “First Application”) The Chartered Institute of Arbitrators seeks:
i) an order under CPR5.4 C(2) to obtain copies of the following documents from the court records in the proceedings in the Section 24 Application:
a) statements of case;
b) witness statements, including exhibits;
c) written submissions and skeleton arguments (together the “Documents”);
ii) alternatively, an order that C supply the Documents to the Chartered Institute of Arbitrators.
In so far as the application sought “disclosed documents” on the court file, that was abandoned in oral submissions and I do not propose to consider that category of documents.
By its application of 15 June 2018 (the “Second Application”), the applicant seeks declarations that:
i) the Chartered Institute of Arbitrators and B are entitled in the context of the disciplinary proceedings to refer to and/or rely on:
a) the Documents and
b) the circumstances of B's nomination and appointment as arbitrator in matters concerning D;
ii) use of such documents is in the public interest.
The applications are supported by a witness statement of Thomas Cadman dated 15 June 2018 and a second witness statement dated 11 February 2019. Mr Cadman is the Director of Governance and Legal Services at The Chartered Institute of Arbitrators.
B has filed a witness statement dated 8 February 2019 in response to the application dated 15 June 2018 noting in particular that by that application The Chartered Institute of Arbitrators seeks an order that B pay the costs of that application. B does not respond by that witness statement to the First Application for documents. B was represented by counsel at the hearing of the applications; counsel for B attended on the basis of the serious nature of the Second Application and the application for costs. The court did not hear submissions on the application for costs at the hearing but counsel for B did address the court on the general principles arising out of the applications.
In his second witness statement Mr Cadman referred to a waiver by Stephenson Harwood on behalf of C by letter dated 28 June 2018. In that letter Stephenson Harwood acknowledged to The Chartered Institute of Arbitrators that the transcript of the hearing in April 2015 was exhibited to the first witness statement of Mr Thwaite filed in support of the Section 24 Application. Stephenson Harwood also confirmed that the hearing of the Section 24 Application was held in open court and that Hamblen J was taken to various parts of the transcript during the hearing and lengthy oral submissions were made by all parties in relation to the transcript. Stephenson Harwood also noted that the transcript was quoted at length in the judgment.
In their second letter of 28 June 2018, Stephenson Harwood confirmed that their client consented to The Chartered Institute of Arbitrators and B being able to refer to and/or rely on the documents filed in the Section 24 Application and to The Chartered Institute of Arbitrators obtaining copies of the documents from the records of the court insofar as they are held on the court file. They further consented to The Chartered Institute of Arbitrators and B being able to refer to and/or rely on the circumstances of B's nomination and appointment as arbitrator in that case in the context of the regulatory proceedings. Stephenson Harwood said that they were unable to provide the documents without the permission of the other party, D, but that they would not oppose any application to the court.
Mr Cadman's evidence is that he sought to contact D but D has become part of another company following a sale and demerger process and he was informed that that company was not able to assist The Chartered Institute of Arbitrators.
The First Application
Relevant Law
CPR 5.4C provides that:
(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing), subject to paragraph (1B).
…
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.
(3) A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if –
…
(d) judgment has been entered in the claim.
CPR 5.4D states:
(1) A person wishing to obtain a copy of a document under rule 5.4B or rule 5.4C must pay any prescribed fee and –
(a) if the court's permission is required, file an application notice in accordance with Part 23; or
(b) …
(2) An application for an order under rule 5.4C(4) or for permission to obtain a copy of a document under rule 5.4B or rule 5.4C (except an application for permission under rule 5.4C(6)) may be made without notice, but the court may direct notice to be given to...
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