DIFC Court discharges confidentiality ring that amounted to a closed material procedure

This very important decision from the DIFC Court that marks out the acceptable boundaries of confidentiality rings in commercial proceedings. This order was made on 5 March but the Court has recently handed down its written reasons for doing so.

In Abramenko & Misevich v Chuprin the DIFC Court discharged a confidentiality ring imposed at the document production stage of proceedings because the confidentiality ring would have prevented the Claimants from seeing key evidence, reading parts of skeleton arguments, and required their exclusion from parts of their own trial. At the point it was discharged the confidentiality order prevented the Claimants seeing bank statements showing dissipations of more than $28 million from alleged trust accounts.

The Court held that this was fundamentally incompatible with common law principles of open justice and the right to a fair trial.

Relying on settled authority, including Al Rawi v Security Service, McKillen v Misland, Credit Europe Bank v New Medical Centre, and Australian High Court decisions such as Zhao, the Court confirmed that DIFC law is consistent with principles across common law systems: there is no basis for a party in a civil trial being denied access to evidence relied upon against them, absent express statutory authorisation which the DIFC does not have.

The key takeaways from this decision are that:

1. Confidentiality rings are interlocutory tools and should not ordinarily persist through to trial.
2. Once evidence is material to the proceedings, fairness overrides confidentiality.
3. Excluding a party from evidence or impeding their ability to give instructions to their lawyers is almost always prohibited.
4. The party asserting confidentiality must propose a workable, proportionate alternative.

The substantive proceedings concern a dispute worth more than $1 billion over the validity and operation of a DIFC law trust established to hold very substantial assets connected with a successful international online gaming business.

Michael Walsh KC, Gregor Hogan and Henry Fahrenkamp acted for the Claimants on this application. In the main trial they also appear with Rupert Reed KC and are instructed by Matthew Showler and Helen Briant at Trowers and Hamlins.