CAN YOU KEEP A SECRET? CONFIDENTIALITY CONSIDERATIONS IN COMMERCIAL DISPUTES
Confidentiality is, and always has been, a critical aspect of commercial dispute resolution. A failure to understand or manage confidentiality issues effectively can have drastic consequences for a party’s prospects of success. Rules of confidentiality also differ depending on the forum of adjudication. This article highlights key confidentiality issues parties should consider when determining how to settle commercial disputes.
Civil litigation – maintaining confidentiality in public proceedings?
The English court system has many advantages. Good examples include a respect for the rule of law, clear rules on procedural fairness, and a conscientiousness about reducing the time and costs involved in litigation. However, the confidentiality advantages of litigation are usually limited to litigation privilege, and certain procedural rules limiting the collateral use of disclosed information. Litigants should therefore prepare for their disputes to largely be resolved in open court.
In England, litigants can withhold privileged communications when providing documents to the other side. Confidentiality is key to a communication remaining privileged. If it loses confidentiality (for instance by being published widely) then the privilege is lost for good.
What of the remaining factual information that litigants must disclose to an opponent or the court? Some of this might be commercially sensitive. The Civil Procedure Rules (CPRs) offer limited protection. CPR 31.22 provides that disclosed documents may only be used for the purposes of the proceedings at hand. This extends to information derived from the disclosed documents.
Oct-Dec 2021 issue
Slaughter and May