Gibraltar: Supreme Court grapples with OnePlus Principles in confidentiality ring application

On May 23, the Supreme Court of Gibraltar presided over a hearing regarding an application concerning the establishment of a confidentiality ring in a claim under the Gibraltar Competition Act 2020. The court determined that in considering the interests of both the receiving and disclosing parties, it was more appropriate to create a confidentiality ring limited to legal representatives and external experts. This would exclude the parties' lay directors and employees, striking a balance between providing the receiving party with access to relevant documents while preserving the confidentiality of the disclosing party's commercial and technical information.

The application for a confidentiality ring

Gibfibre claimed that the defendants hold a dominant position in specific markets within Gibraltar's telecommunications industry and have abused that position, going against both EU law and the Gibraltar Competition Act 2020. However, the defendants deny being dominant within those markets or engaging in any abusive behaviour.

Regarding the application for a confidentiality ring, the defendants requested a limited ring consisting only of legal representatives and external experts, excluding lay clients. They argued that allowing inspection of documents would prejudice their legitimate business interests and suggested including around 60 per cent of the documents in the ring.

On the other hand, Gibfibre argued such a confidentiality ring went against the principles of open and natural justice.

Relevant legal principles

Both parties agreed on the principles governing confidentiality ring orders, as outlined by Floyd LJ in the English Court of Appeal case of Oneplus v Mitsubishi [2020] EWCA 1562. These principles include balancing the receiving party's interest for full access to relevant documents with the interests of the disclosing party or third parties in protecting their confidential commercial and technical information. It was acknowledged that it would be extremely rare, if not impossible, for an officer or employee of the receiving party to gain no access at all to important trial documents.

The main issue before the court was that Gibtelecom and Rockolo still advocated for an ‘external eyes only’ ring but proposed a mechanism by which confidential information could be shown to individuals outside the ring with the consent of Gibtelecom or permission from the court.

Gibfibre did not propose that its lay client be included as a full member in the confidentiality ring with unrestricted access to confidential material. Instead, they suggested that specific directors or employees should be able to view such documents if a lawyer within the confidentiality ring deemed it reasonably necessary for the proceedings.

Gibfibre’s submissions
Gibfibre argued that Gibtelecom's proposal was not enough to mitigate any unfairness of an ‘external eyes only’ confidentiality ring and was an unacceptable restriction on a party's right to present its case. They also raised concerns about the defendants' plan to include about 60 per cent of the disclosed documents within the ring.

Gibfibre also contended that the progress of the litigation would be hindered by the need to obtain the defendants’ consent or the court’s permission every time they needed instructions from their lay client on a confidential document.

Additionally, they believed that explaining the reasons for disclosing documents to the lay client would involve revealing sensitive information related to case theories and litigation strategies, and infringe on privilege, leading to unfairness and infringing on privilege.

In an ex tempore judgment, Mr Justice Restano, granted the defendants' application. He held that the order sought by the defendants struck the correct balance between the parties' competing interests. Restano J noted that the case would heavily rely on expert evidence and that although lay clients might need access to certain documents, that stage had not been reached yet. He concluded that Gibfibre's need for a ‘safety valve’ regarding the disclosure of confidential material to their lay client was adequately addressed by Gibtelecom and Rockolo's proposed mechanism.

In his judgment, Restano J also warned against the misuse of a confidentiality regime.

Elliott Phillips is a partner and Paul Grant is an associate of Signature Litigation. Both were instructed to appear on behalf of GibFibre signaturelitigation.com