Ace Bermuda Insurance Ltd v Ford Motor Company

• Jurisdiction: Bermuda
• Judgment Date: 06 January 2016
• Date: 06 January 2016
• Docket Number: Civil Jurisdiction 2015 No 291
• Court: Supreme Court (Bermuda)

[2016] Bda LR 1

In The Supreme Court of Bermuda

Civil Jurisdiction 2015 No 291

Between:

Ace Bermuda Insurance Ltd

Plaintiff

and

Ford Motor Company

Defendant

Mr A Potts for the Plaintiff

Mr N Turner for the Defendant

The following cases were referred to in the judgment:

Attorney General v Leveller Magazine LtdELR [1979] AC 440

Independent Publishing Co Ltd v AG of Trinidad and TobagoELR [2005] 1 AC 190

Hodgson v Imperial Tobacco LtdWLR [1998] 1 WLR 1056

Forbes v SmithUNK [1998] 1 All ER 973

Economic Dept of the City of Moscow v Bankers Trust CoELR [2005] QB 207

AEGIS Ltd v European ReWLR [2003] 1 WLR 1041

Dolling-Baker v MerrettWLR [1990] 1 WLR 1205

Ali Shipping Corpn v Shipyard TrogirWLR [1999] 1 WLR 314

ABC Insurance Co v XYZ Insurance CoBDLR [2006] Bda LR 8

Home Office v HarmanELR [1983] AC 280

Open justice — Application for proceedings to be conducted in camera with sealed file — Anonymised judgment — Confidential material — Arbitration

RULING of Hellman J

Relief sought

1. By summons dated 21^st September 2015 the Plaintiff seeks an order that:

• i. the originating summons in these proceedings and a summons issued by the Defendant on 25^th August 2015 be conducted in camera and the Court file sealed; and

• ii. any judgment or ruling be published in anonymised form on grounds of confidentiality.

Background

2. The Plaintiff is an exempted insurance company incorporated in Bermuda. The Defendant is a motor vehicle manufacturer headquartered in the United States.

3. By an originating summons dated 14^th July 2015 the Plaintiff seeks:

• i. a permanent injunction restraining the Defendant from litigating against the Plaintiff in the United States in relation to an insurance policy which the Plaintiff issued to the Defendant. It is alleged that such litigation would breach a valid and binding Bermuda arbitration agreement between the parties which is contained in the policy (‘an anti-suit injunction’); and

• ii. a permanent injunction restraining the Defendant from seeking injunctive relief restraining the Plaintiff from pursuing or enforcing the said Bermuda arbitration agreement (‘an anti-anti-suit injunction’).

4. By two ex parte summonses dated 10^th July 2015 the Plaintiff sought:

• i. leave to issue and serve on the Defendant the originating summons out of the jurisdiction; and

• ii. interim anti-suit and anti-anti-suit injunctions.

5. On 13^th July 2015 the Court granted the Plaintiff the ex parte relief sought.

6. On 7^th August 2015, with leave of the Court, the Defendant entered a conditional appearance. On 25^th August 2015 the Defendant issued a summons for an order that the originating summons and ex parte injunctions be set aside on the ground that they had not been duly served.

Confidential material

7. The Plaintiff alleges that material filed by the Defendant includes confidential details of a previous arbitration including the settlement agreement. The paragraphs to which I was referred dealing with this point in the affidavits filed by both parties are identified in a confidential appendix to this ruling (‘the Confidential Appendix’). The Plaintiff has also drawn my attention to a confidentiality agreement relating to that arbitration, signed by both parties, which provided:

‘ACE and Ford agree that all awards and rulings issued or made in the Arbitration are and shall remain strictly confidential, and shall instruct their advisers to maintain such confidentiality.’

8. The Plaintiff further alleges that the correspondence which it has exhibited in support of its ex parte application for injunctive relief included details of the current dispute between the parties which, they both appear to agree, should be arbitrated. The exchange of correspondence mentioned in the Confidential Appendix is of particular relevance to the Plaintiff's concerns.

9. For ease of reference I shall refer to the aforesaid material for which the Plaintiff claims confidentiality as ‘the confidential material’.

10. The Defendant, in its affidavit evidence, asserted that the Plaintiff, by exhibiting a particular letter from the above-mentioned exchange of correspondence to an affidavit filed in support of its ex parte application, has waived any right to claim that either the previous arbitration or the parties' current dispute are confidential.

Discussion

11. This application involves a clash of the competing principles that on the one hand courts generally sit in public and give public judgments — what is often referred to as ‘open justice’— and that on the other arbitration proceedings are generally private and confidential. The present proceedings are not of course an arbitration, but they involve reference to a previous arbitration and to an ongoing dispute which the parties have agreed to arbitrate.

Open justice

12. Under the Constitution of Bermuda, the presumption is that all civil proceedings in court, including the announcement of the court's decision, shall be held in public. However, in certain circumstances the court can exclude persons other than the parties and their legal representatives. Such hearings are described as being held ‘in camera’.

13. Section 6 of the Constitution, which is headed ‘Provisions to secure protection of law’, provides in material part:

‘(9) All proceedings instituted in any court for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public.

(10) Nothing in subsection (9) of this section shall prevent the court from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court—

(a) may be empowered by law so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings …’

14. As to the announcement of the decision of the court, the principle of open justice entails that nothing should be done to discourage the publication to a wider public of fair and accurate reports of proceedings that have taken place in court.See Attorney General v Leveller Magazine LtdELR[1979] AC 440 HL per Lord Diplock at 450 B. The court has, incidentally, no common law power to order that the publication of a report of proceedings conducted in open court be postponed. See Independent Publishing Co Ltd v AG of Trinidad and TobagoELR[2005] 1 AC 190per Lord Brown, giving the judgment of the Board, at paras 20 and 67.

15. Thus a Practice Direction on Publication of Judgments and Rulings given in Chambers dated 15^th May 2006 (Circular No 7 of 2006), issued by Ground CJ, stated in material part:

‘2. Subject to the following provisions of this practice direction, copies of Judgments and Rulings given in Chambers may go in the books of considered Judgments maintained in the Supreme Court, and accurate texts of such Judgments...