Confidentiality Ring Orders (“CROs”) are an increasingly prevalent feature of complex modern commercial litigation. The judgment of Cockerill J in the “Dieselgate” case of Cavallari (the Group Litigation Order involving claims against Mercedes Benz companies) is likely to be an important contribution to the proper use of CROs.
Mercedes Benz had placed a large number of regulatory decisions (whose binding effect it had also accepted or pleaded) and materials relating to the same (such as Annexes or other documents incorporated by reference) into a confidentiality ring on a blanket basis. None of the documents were redacted in any way. The Claimants applied for such documents to be de-designated as confidential (and so moved over to simple CPR 31.22 protection) on the basis that any confidentiality was long lost due to the passage of time, regulatory change and the likely nugatory commercial interest in old engineering solutions that were either unlawful or of questionable legality, no utility or in truth now part of common knowledge. De-designation of the German regulator’s decisions findings (and their annexes) to the effect that Mercedes had used “prohibited defeat devices” (i.e. ones incapable of justification) was sought on the basis of the iniquity principle.
Cockerill J agreed, de-designating all bar one of more than a 1,000 documents placed into the CRO (with the sole exception being a document in which Mercedes was permitted to try again on a more focused basis). Her judgment reiterated the guiding principles on CROs and in particular the lodestone of open justice.
First, the judgment is an important application of the iniquity principle to regulatory findings contained in a regulatory decision that was under appeal (the cross-over to competition decisions, especially object infringement decisions such as cartels being an obvious potential development) and an endorsement of the idea that confidentiality in such decisions will be waived by active reliance upon them (here by the Defendants’ plea that the decisions in question bound the Court).
Second, it identifies the responsibilities of parties seeking to designate material as confidential given the demands of open justice (particularly in relation to subject matter of obvious public interest), setting out: (a) the rules of thumb, in particular on ephemerality of confidential material and the “5 year rule”, and redaction; (b) the need for concrete and precise evidence of confidentiality/harm to substantiate claims (rather than vague omnibus claims); and (c) the need for such evidence to be directed at particular, redactable passages rather than whole documents or classes of document. The judgment is thus likely to get regular consideration in the CAT, Commercial Court, the IP and commercial employment context and beyond in due course.