Confidentiality Club

English legal term analogous to a US Protective Order.  Common law legal systems follow a principle that justice should be public. However, this causes problems where personal and private information might need to be disclosed and discussed in the course of proceedings, or alternately commercially sensitive information and commercial or trade secrets.  In particular, under normal practice documents are exchanged between party counsel, court hearings are open to the public and the public can obtain copies of pleadings and other documents filed in the course of proceedings.

The Civil Procedure Rules of the courts of England & Wales contain a number of provisions that allow the judge discretion to require parts of the proceedings to be kept confidential to a set of people, usually legal counsel – who are members of the so-called “confidentiality club.”  Thus under CPR 39.2 a court can direct that hearings be held in private, i.e., with only members of the club present on an array of grounds including the disclosure of confidential information.  Under CPR 31.22, subject to certain exceptions, a document produced in discovery can only be used for purposes of the case for which it was produced. Finally, while under CPR 5.4(C)(1) members of the public may obtain copies of pleadings in a case, CPR 5.4(C)(4) provides that a party can request the court to restrict that access in various ways, including:

  • ordering that a non-party may not obtain a copy of a statement of case;
  • restricting the class or classes of people who may obtain a copy of a statement of case;
  • ordering that classes of persons or the public only receive redacted (i.e., edited by deletion) versions of pleadings;
  • or any other order it thinks necessary.

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