Shein v Temu: Court of Appeal refuses permission to appeal confidentiality ring disclosure order

Lord Justice Zacaroli, sitting in the Court of Appeal (Civil Division), has refused Shein permission to appeal a Competition Appeal Tribunal order requiring disclosure of a list of approximately 450 suppliers into an "outer" rather than "inner" confidentiality ring. The judgement, handed down on 5 March 2026, reinforces the primacy of the balancing exercise when confidentiality tiers are in dispute and underscores how high the bar remains for interfering with case management decisions.

The underlying proceedings arise from a copyright claim brought by Shein against Temu in August 2023, to which Temu responded with a counterclaim under the Competition Act 1998. A central issue in the counterclaim concerns "supplier attestations" — documents signed by around 450 of Shein's most valuable suppliers committing them not to breach Shein's intellectual property rights. Temu sought disclosure of the list of signatories, arguing it was essential to assess the commercial impact of Shein's conduct on suppliers' activity on the Temu platform.

The confidentiality regime, established pursuant to orders of Bacon J, operates across two tiers. The inner ring is confined to external advisers alone and covers information whose disclosure to any party employee would be inappropriate. The outer ring additionally permits access by a small number of in-house lawyers who are legally qualified outside the PRC, subject to professional regulation, employed separately from commercial functions, and bound by extensive undertakings. At the case management hearing on 17 December 2025, the Tribunal ordered disclosure of the supplier list into the outer ring.

Shein advanced two grounds. First, that the Tribunal's decision was contrary to the very purpose of the inner ring and, to the extent necessary, irrational. Second, that the decision lacked adequate reasons.

On procedural fairness, Shein pointed to an error in Temu's skeleton argument suggesting the information would go only to the inner ring — a position corrected in oral submissions by Mr Holmes KC. Ms Demetriou KC argued that this deprived Shein of the opportunity to address the tier question in evidence. Zacaroli LJ was unpersuaded: Temu's solicitors' correspondence and application materials had consistently referred to outer ring disclosure, and since Shein bore the burden of justifying restriction to external eyes only, any evidence on the point should already have been filed before skeleton arguments were exchanged.

Applying the well-established test from GLAS SAS (London Branch) v European Topsoho SARL [2025] EWCA Civ 933 and the principles drawn together in Oneplus Technology v Mitsubishi [2020] EWCA Civ 1562, Zacaroli LJ reiterated that an appellate court will only interfere with a case management decision involving the exercise of a discretion where there has been an error of law, a failure to take into account relevant factors, or where the decision falls outside the generous ambit of reasonable disagreement.

On Ground 1, the court rejected the submission that the information's commercial sensitivity alone was determinative. The provisions governing the inner and outer rings cannot be read in isolation; what is required in each case is a balancing exercise. The Tribunal had carried out that exercise, concluding that the fair conduct of the proceedings required the supplier list to be seen by in-house lawyers in the outer ring. Shein's argument, as formulated, simply failed to engage with that balancing exercise.

On Ground 2, the court held that adequacy of reasons must be assessed in context. An extempore judgement delivered during a case management hearing need not be a polished, reserved product, and the extent of reasons required varies with the depth of argument presented. Here, the only substantive submission in favour of the inner ring had been that the information was commercially sensitive. The Tribunal had explained clearly why it nonetheless preferred outer ring disclosure — namely that in-house lawyers were needed to interrogate Temu's systems in the manner described in the evidence of Mr Ji. The parties could have been in no doubt as to the basis of the decision.

Zacaroli LJ also addressed a third argument that emerged during the oral hearing — that the Tribunal's conclusion lacked any evidential foundation — but declined to permit this to be advanced as it fell outside the existing grounds and, in any event, was unarguable. The Tribunal's evaluative judgement, based on Mr Ji's evidence as to what the necessary analysis would entail, was not susceptible to the challenge that it was without evidential support.

The judgement offers a clear reminder that a two-tier confidentiality ring does not operate so that the inner ring functions as a default refuge for the most sensitive material. Sensitivity is a relevant consideration, but it must be weighed against the legitimate requirements of the receiving party to conduct its case effectively. Where a party seeks to confine disclosure to external eyes only, the burden falls on it throughout to justify that designation — and that burden must be discharged in evidence, not merely in submissions at the hearing itself.

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