Firm B was a firm of solicitors that had acted for Party B in an arbitration between A and Party B. Firm B was then instructed to act for C in an arbitration between C and D. A and D were related entities. The issues in the two arbitrations were similar.

A applied for an injunction against Firm B, seeking to prohibit Firm B from acting for C in the arbitration against D.

Decision: Application dismissed.

Held: (1) There is an implied duty of confidentiality that applies in English arbitration, though the uncertainty as to whether the duty is an implied term of the arbitration agreement or part of the lex arbitri was not resolved.

(2) The obligation extends to documents generated and used in the arbitration, such as witness statements and expert reports. However, documents which came into existence independently of the arbitration—or the fact of a dispute and the issues therein—were not rendered confidential merely because there was then an arbitration process.

(3) The obligation is subject to exceptions, and it is strongly arguable that the purpose of eliciting similar fact evidence was one such exception.

(4) The injunction was not granted on the facts because there was no arguable complaint that the duty was breached. Any prima facie breach was of limited significance and had not disadvantaged D. There was no realistic prospect of future breach, particularly where Firm B had explained that lawyers who acted in the first arbitration should not be permitted to act in the second, that the firm’s file on the second arbitration had been “cleansed” of confidential material relating to the first reference, and that there would be information barriers within the firm to limit access to information about the first arbitration.

Comment: Recent years have seen an increasing sensitivity around the repeat appointment of arbitrators by certain litigating parties or their lawyers. However, the ability of lawyers to act in similar arbitrations has not been so scrutinised. The outcome here was a practical one, with the judge recognising that too stringent an approach would