I went to hear Sir Vivian Ramsey speak last week at the Worshipful Company of Arbitrators‘ Annual Master’s Lecture. His talk was called “Open secrets: the concept of confidentiality in dispute resolution”. He focused on the concepts of privacy and confidentiality in arbitration, mediation and the courts, and only mentioned adjudication briefly.
Sir Vivian’s talk got me thinking about whether there is a duty of confidentiality in adjudication and, if there is, where does it come from?
There are duties of privacy and confidentiality in arbitration
If you attended the lecture, you will recall that Sir Vivian discussed the development of the duties of privacy and confidentiality in arbitration and how, if the parties think it is necessary, they can apply to the court to exclude members of the public from any proceedings related to their arbitration. By making that type of order the courts are, in effect, honouring the privacy and confidentiality of the arbitration.
If all the parties, experts and adjudicators who are involved in adjudication believe the process is private and confidential, where do they get that idea from? Is it simply that they apply the duty of confidentiality in arbitration (that they may be more familiar with) to adjudication, without considering whether that duty actually applies?
Sir Vivian also mentioned that there haven’t been any applications before the TCC (at least that he was aware of), where one of the parties was seeking to have adjudication proceedings held in private. He suggested that he wasn’t expecting any following his talk either!
That seems surprising, if the parties think the process is private and confidential. Why haven’t parties sought to keep a private dispute resolution process out of the public eye, when it has come to enforcement or other applications? Certainly, there have been a number of judgments over the years where I bet the adjudicator wished the parties had kept the case out of the public eye!
…and I wonder what a party’s chances of success would be, and what arguments they would run to try and persuade a TCC judge to hold a private enforcement or other adjudication related hearing?
Back to the duty of confidentiality in adjudication
After the talk, I took a look at the Construction Act 1996 to see if it mentions confidentiality. It doesn’t. I also went through Part I of the Scheme for Construction Contracts 1998. That doesn’t refer to the process being confidential either, although it does allow a party to request that information or documents that it discloses as part of the adjudication process remain confidential and are not disclosed to “any other person”, unless it is necessary as part of the adjudication (paragraph 18).
I read paragraph 18 as meaning a party must expressly request that specific material is treated as confidential, rather than anything else. I may start looking more closely at the submissions I receive from now on, to see if there is an assertion of confidentiality from the parties.
As the Scheme only has one specific reference to confidentiality, that suggests to me that any statutory adjudication, or adjudication based on the Scheme, will not be subject to a statutory duty of privacy or confidentiality. Unless it can be said that there is a common law duty, analogous to the duty in arbitration, it suggests there isn’t a duty at all.
I also looked at the TeCSA adjudication rules. In contrast to the Act and the Scheme, the TeCSA rules contain a confidentiality clause (paragraph 35):
“The Adjudication and all matters arising… are and will be kept confidential by the Parties except… as necessary to implement or enforce any decision of the Adjudicator or as may be required for the purpose of any subsequent proceedings.”
This is a contractual duty of confidentiality and something that I suspect parties are more used to seeing in mediation agreements. It certainly isn’t the sort of wording that appears in the adjudication clause of the JCT standard forms of contract.
I wonder whether, given the “great and the good” of the construction world were present to hear Sir Vivian speak, there will be some concerned individuals out there, wondering whether details of their adjudication will suddenly be made public. If they are made public, how will a party stop it, or stop it from happening again? Will we now see an increase in confidentiality agreements in adjudication?