Canary Riverside Estate Management Ltd & Ors v Coates

The Claimant companies were the freeholders and long leaseholders of Canary Riverside, a residential and commercial development in Canary Wharf, London. The Defendant was statutory manager of the estate from 2016-2019, having been appointed by the First-tier Tribunal (Property Chamber) to replace a company incorporated by the Claimants for that purpose. The Intervenor, Circus Apartments Limited, was the tenant of 45 serviced apartments on the estate.

In the context of a long-running dispute regarding Canary Riverside, the Defendant was alleged to have contractually agreed in the Recitals of a First-tier Tribunal Order to provide disclosure of two categories of documents to the Claimants. In January 2019, the Claimants brought proceedings seeking specific performance; in May 2019, they applied for summary judgment.

As at December 2019, it appeared that the only outstanding issue between the Claimants and the Defendant concerned possible third-party confidentiality and privilege rights in the documents. After the hearing, the Judge ordered the Defendant to search for (though not disclose) the documents identified in the disclosure agreement, and to notify third parties with a potential interest in these materials. The Defendant found some 9000 documents, and the Intervenor objected to their disclosure to the Claimants, asserting a right of ‘class-based confidentiality’ over all of its communications to the Defendant – irrespective of the communications’ content – based on the circumstances of the Defendant’s appointment and the Intervenor’s relationship to him.

Whether the concept of class confidence existed fell to be determined by Michael Green J on 20-22 April 2021, alongside three appeals. The Intervenor appealed against a 7 August 2020 Order by HHJ Hellman establishing a ‘confidentiality club’, whereby the documents in which the Intervenor had asserted class confidence would be provided to solicitors instructed by the Claimants not conducting the litigation. The Claimants appealed against a 30 October 2020 decision by the same Judge allowing the Defendant to make certain amendments to his Defence; the Defendant appealed against the decision to disallow certain other amendments. The Claimants also appealed against HHJ Hellman’s finding that neither the allowed nor the disallowed amendments were an abuse of process.

1)    Whether the Intervenor had a claim to class confidentiality in the 9000-odd documents that the Defendant had agreed to disclose;

2)    Whether the Judge was right to have made the ‘confidentiality club’ Order;

3)    Whether the Judge was right to have allowed the Defendant to make certain amendments to his Defence;

4)    Whether the Judge was right to have refused to allow the Defendant to make certain other amendments to his Defence;

5)    Whether the Judge was right to have found that neither the allowed nor the disallowed amendments to the Defence were an abuse of process.

Michael Green J rejected the Intervenor’s claim to class confidentiality. There was no authority in which a right of class-based confidentiality had been recognised, and the Judge was not persuaded that, as a matter of law, there was any basis for “cloaking all the documents” in this case “in a blanket of confidentiality”. If the Intervenor wanted to assert a right of confidence in those documents, that would have to be based on the contents of each document, and not merely the fact that it was part of a class of correspondence between the Intervenor and the Defendant.

However, the Intervenor succeeded in its appeal against the ‘confidentiality club’ Order. It was premature for it to have been made, not least because the Intervenor’s claim to class-based confidence had not at that stage been considered. There was also still the possibility that the Intervenor might pursue a contents-based claim to confidence, and the complexities of third-party rights such as privilege and confidentiality did not require resolution until after the determination of the contractual liability of the Defendant. Michael Green J therefore set aside the Order.

Regarding the Defence amendments, Michael Green J rejected the Claimants’ appeals on the amendments permitted by HHJ Hellman, and on the dismissal of the Claimants’ abuse of process argument. He allowed the Defendant’s appeal on the amendments not permitted by HHJ Hellman, and granted the Defendant permission to make those amendments.

The latest case arising out of the long-running dispute regarding Canary Riverside. Michael Green J’s judgment identifies authorities of interest to practitioners dealing with privacy/confidence claims arising out of correspondence, as well as the concept of abuse of process.