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Disclosure of Confidential Information from Arbitration

The Court of Session Outer House has held that the public interest in the administration of justice “can override the obligation of confidentiality”.

Gray Construction Limited [GC], a firm of builders, raised an action for damages and breach of contract against Harley Haddow LLP [HH], a firm of Consulting Engineers, in relation to money they spent in an arbitration with the National House Building Council [NHBC] relating to defective house foundations in a development in Dunfermline.

In their pleadings, GC referred to the settlement of an arbitration and the level at which it was settled. HH sought recovery of documents relating to this and a court order for their recovery was granted. GC argued that the documents were confidential, lodged the documents with the Court in a confidential envelope and asked the Court to rule on their confidentiality.

In general terms, the Court will not normally allow documents to be recovered which are considered to be confidential. However, in this case the Court held that it has a discretion to grant an order for the production of documents covered by confidentiality in certain circumstances. In this case, it was held that “it was reasonably necessary” to allow the recovery of these documents and that “it would not be consistent with a fair disposal of the action” for other evidence to be lead instead.

If you would like more information on this matter, please contact Lewis McDonald.

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