The Court of Appeal has applied the guidance from Halliburton in a recent judgment in Manchester City Football Club Ltd v The Football Association Premier League Ltd & Others[2]. The judgment gives us a helpful insight into the way Halliburton is likely to be interpreted in future judgments.

Background

Manchester City Football Club Ltd (the “Club”) appealed against an order directing publication of a High Court judgment resulting from arbitral proceedings between it and the Football Association Premier League Ltd (“PL”).

The relationship between the PL and the member clubs is governed by the articles of association and the Rules of the PL (the “Rules”).

In December 2018, the PL commenced a disciplinary investigation into the Club after allegations about the Club appeared in various European media reports which disclosed details of confidential documents obtained from a hack of the Club’s email servers. During the course of its investigation, the PL requested information and documents from the Club (including copies of various documents identified in those media reports) under Rule W.1. The Club objected to disclosure of that material.

The allegations in the media reports led to the Union of European Football Associations (“UEFA”) commencing a formal investigation into the Club over alleged breaches of UEFA’s financial fair play (“FFP”) regulations. That investigation initially led to the Club being banned from UEFA’s European club competitions for two years as well as being fined, but the ban was overturned and the fine reduced by a tribunal in the Court of Arbitration for Sport (“CAS”) in July 2020[3].

On 21 August 2019, the PL issued a disciplinary complaint against the Club under Section W seeking disclosure of certain documents and information. A Commission was appointed pursuant to Rule W.21, but its composition and the disciplinary system were challenged by the Club as not sufficiently independent or impartial. Although the PL proposed an ad hoc procedure for the appointment of a new Commission, the Club objected.

The PL then commenced an arbitration against the Club under Section X of the Rules seeking:

• a declaration and/or determination that the Club was obliged to provide the PL with requested documents and information; and
• an order for specific performance of the Club’s contractual obligation to deliver up documents and information which were being withheld.

Under Rule X.8 then in force, the PL provided a list of people who were on a panel from which arbitrators were to be appointed (the “Panel”). The Club appointed John Machell QC from the Panel and the PL Daniel Alexander QC, and, in accordance with the Rules, the two arbitrators then appointed a chairman, Philip Havers QC.

The Club challenged the jurisdiction of the arbitrators, submitting to the tribunal that, on a proper construction of the Rules, the PL had no power to institute a Section X arbitration in respect of its information claim. Accordingly it was submitted that the tribunal lacked substantive jurisdiction and the arbitration could not proceed. It was also submitted that the tribunal did not have the appearance of impartiality.

The arbitration tribunal rejected the Club’s challenge to its jurisdiction and impartiality and held that it had substantive jurisdiction to hear the PL’s claim and that it did not lack the appearance of impartiality.

The Club then issued an application by an Arbitration Claim in the Commercial Court contending that:

1. the tribunal lacked jurisdiction because, on the true construction of the Rules, the PL did not have the power to institute the arbitration under Section X (the “Section 67 Challenge”);
2. the tribunal was tainted with apparent bias due to the process for appointment and reappointment to the Panel from which arbitrators could be appointed to tribunals for arbitrations instituted under Section X (the “Section 68 Challenge”); and
3. the arbitrators should accordingly be removed under section 24 of the Arbitration Act.

The hearing of the Club’s application before Moulder J was in private pursuant to CPR 62.10. In her judgment the judge dismissed the application:

1. In relation to the Section 67 Challenge, she concluded that the language of Rule X.2 which permitted “all disputes” to be referred to arbitration is not limited by Section W of the Rules (which concern the powers of the PL to deal with suspected or alleged breaches of the Rules).
2. In relation to the Section 68 Challenge she concluded that applying the decision of the Supreme Court in Halliburton, the matters relied on by the Club (the remuneration of the arbitrators from being on the Panel, the process by which they were appointed to the Panel under the Rules and the control by the PL over reappointment, so the arbitrators lacked security of tenure) did not satisfy the test, namely, that a fair minded and informed observer would conclude that there was a real possibility that the arbitrators were biased.
3. Accordingly the section 24 application was also dismissed.

As noted above, the hearing itself was private. However, when Moulder J sent her draft judgment to the parties, she said that she was minded to publish it. Both parties opposed this publication. However, Moulder J concluded that it was desirable for any judgment to be made public in order to ensure public scrutiny and the transparent administration of justice, provided that that could be done without disclosing significant confidential information. Moulder J also noted that publication would not lead to disclosure of significant confidential information or result in real prejudice or significant detriment to the Club.

The Club appealed this decision to the Court of Appeal.

Decision

The appeal was heard by a panel constituted of Sir Geoffrey Vos MR, Sir Julian Flaux C and Males LJ. The Club’s appeal was unanimously dismissed.

The lead judgment was delivered by Flaux C and provides guidance on the circumstances in which judgments of the court on applications under sections 67 and 68 of the Arbitration Act should be published or should remain private – applying the principles set out by the Court of Appeal in Department of Economics, Policy and Development of the City of Moscow & Anor v Bankers Trust Co & Anor[4].

Sir Julian held the judge at first instance had made the correct evaluative assessment in ordering publication of the judgment for the following reasons:

• Confidential information: In respect of confidential information, the Court of Appeal agreed with Moulder J that publication would not lead to disclosure of significant confidential information. What would be disclosed would be the existence of the dispute and the arbitration in circumstances where it was already public knowledge that the underlying investigation by the PL was taking place and, “as the judge said, the reasonable reader of the Times article would assume that the investigation would involve the production by the Club of documents and information” (at [54] of the judgment).
• Public interest: The court did not accept that publication was not in the public interest because the Club’s complaint was specific to the Club’s case. The Court of Appeal also highlighted that Moulder J had simply applied the principles recently confirmed by the Supreme Court in Halliburton. Sir Julian continued at [55] of the judgment that:
  
  “I consider that there is a legitimate public interest in how disputes between the PL and member clubs are resolved and, in particular, in the allegation of structural bias made by the Club which appears to have led to a change in the Rules. As HHJ Pelling QC said at [21] of his judgment in the Newcastle United case,^[[5]] there is a public interest in the publication of a judgment determining an application under section 24 of the Arbitration Act (in other words a judgment dealing with an allegation of apparent bias), because there is a public interest in maintaining appropriate standards of fairness in the conduct of arbitrations. This is so even if the judges determining such applications are applying the principles confirmed by Halliburton rather than making new law.”

(Emphasis added.)

• Both parties’ opposition to publication: The fact that the PL supported the Club’s appeal so that both parties to the arbitration were opposed to publication was of some weight, but courts should be careful not simply to accept the parties’ wishes without scrutiny (at [56]).
• Prejudice: The Court of Appeal considered that the judge was right to view the Club’s case that publication would cause it prejudice or detriment with considerable scepticism. Given what is already in the public domain, disclosure of the existence of the dispute as to production of documents and information would hardly give rise to any prejudice or detriment to the Club. The suggestion that press interest and speculation might disrupt the investigation or the arbitration, where both were being conducted by experienced professionals, was “entirely fanciful” (at [59]).

Conclusion

Moulder J’s judgment and that of the Court of Appeal are of particular interest for applying the Supreme Court’s judgment in Halliburton. The judgment also reinforces the importance of making judgments which take account of the context in which arbitral appointments are made.

However, the confidentiality surrounding arbitration has to be balanced with the public interest in ensuring judgments are public wherever possible. This also reflected one of the key tensions in Halliburton – namely balancing confidentiality with other important principles.

It is clearly not the end of the road for the disputes between these parties. The Court of Appeal expressed its surprise, and said it was a “matter of legitimate public concern”, that so little progress has been made after two and a half years – during which, it may be noted, the Club has twice been crowned as Premier League champions.

In this case, the judgment was clearly guided by the fact that the dispute had already been widely reported in the media. The judgment therefore clearly turned on its facts, but the court has provided some clear statements of general principle. It is a helpful judgment and will not be the last to apply the principles from Halliburton.

[1] [2020] UKSC 48; [2020] 3 WLR 1474.

[2] [2021] EWCA Civ 1110.

[3] It has been reported that, whilst the CAS tribunal held that the most serious allegations against the Club could either not be proved or were time barred, the reduced fine was upheld on the basis that the Club had breached UEFA's regulations by failing to co-operate with the investigation.

[4] [2004] EWCA Civ 314; [2005] QB 207.

[5] Newcastle United Football Co Ltd v Football Association Premier League Ltd [2021] EWHC 450 (Comm).