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.