COMPETITION TRIBUNAL PRACTICE DIRECTION NO 2
CONFIDENTIAL INFORMATION
1. This Practice Direction sets out the practice relating to confidential information in proceedings in the Competition Tribunal.
General
2. Whether particular information is to be regarded as confidential and to be accorded confidential treatment is a matter for the Tribunal to decide in the circumstances of the individual case.
3. Parties should use their best efforts to agree as to whether documents or parts of documents are to be given confidential treatment, including whether specific information is to be disclosed only to certain individuals within a party or among its representatives. Where appropriate, suitable confidentiality undertakings may be used to limit any further disclosure by the recipients of the information in question.
4. A request made to the Tribunal for confidential treatment of any information should specify the persons or classes of persons against whom confidentiality is asserted, in particular whether the information concerned is sought to be withheld from every other party, or from some only of the parties, or only from the public.
5. Confidential treatment is only to be accorded to information that genuinely requires to be protected. In general, confidentiality cannot be claimed for the entire or whole sections of a document as it is normally possible to protect confidential information with limited redactions. Redaction of documents should be no more extensive than is necessary and justified.
6. Where redaction may properly be made, it should be made in the following manner:
(1) The layout of the page that contains the redaction should not be altered, so that it is possible to tell where and how much material has been redacted on that page.
(2) The pagination and paragraph or line numbering, if any, of the relevant document should not be altered.
(3) As far as possible an indication of the nature of the information redacted should be provided – for example “[prices excised]”, “[figures of profit margin redacted]”.
For sample redacted pages, see Annex 1 to this Practice Direction.
7. Where an order granting or refusing confidential treatment has been made but subsequently stayed, the party who has obtained the stay must notify the Registry immediately so that the relevant file will be handled accordingly.
Inspection of case file
8. The general position regarding access to a case file in the Tribunal is as follows:
(1) All originating processes filed in the Tribunal are open to inspection by the public upon payment of a fee.
(2) Other documents in the file are not open to inspection by the public without leave of the Tribunal. Generally, the Tribunal will afford the relevant party or parties who filed the documents in the first place an opportunity of making representations before granting leave for inspection.
(3) Parties to the proceedings may inspect all documents in the file with leave of the Tribunal. Leave to inspect will generally be granted to a party except for documents or parts of documents that are confidential as against that party.
9. A party seeking leave to inspect should first identify the document to be inspected by reference to their folio number in the index of documents filed kept at the Registry.
10. Any party who wishes to inspect the case file but who was not a party to the proceedings at their commencement must annex, with his request to inspect, a copy of:
(1) the order by which that party became a party to the proceedings; and
(2) the order, if any, specifying that party’s right of access to documents in the file.
Originating process
11. An originating document filed in the Tribunal is open to inspection by the public upon payment of a fee. Where a party wishes to keep confidential any information in such a document, he should:
(1) file in the Tribunal the full, unredacted version of the originating document with the words “Confidential Treatment Claimed” prominently marked at the top left corner on the first page and contained in an envelope marked “Confidential Treatment Claimed”;
(2) file in the Tribunal in addition a redacted non-confidential version of the originating document, which is open to inspection by the public;
(3) apply to the Tribunal in writing before or at the time of filing, specifying the information for which confidential treatment is requested and providing full justification.
For samples showing how to mark an originating document, see Annex 2 to this Practice Direction.
12. The Tribunal will as soon as practicable dispose of the application in writing or give directions for its further conduct.
13. Notwithstanding any request for confidential treatment, unless the Tribunal otherwise directs, the Registrar will in applicable cases cause to be published a notice of the case based on the summary provided in accordance with paragraph 40 of Competition Tribunal Practice Direction No 1. An applicant must therefore take care that the summary provided does not contain confidential information.
Claiming confidentiality in documents to be filed and served after the commencement of proceedings
14. Where a party wishes to claim as against other parties confidential treatment for documents to be filed and served by him, different procedures apply depending on whether all the relevant parties consent to the request for confidentiality.
15. The procedure for applications without consent is set out in paragraphs 16-21 below. The procedure for applications by consent is set out in paragraphs 22-25below.
Procedure for application without consent
16. In the absence of agreement between the relevant parties, the party requesting confidential treatment should:
(1) serve a version of the document on the other relevant parties with the information for which confidentiality is claimed redacted;
(2) file the confidential version of the document in the Tribunal with the words “Confidential Treatment Claimed” prominently marked at the top left corner on the first page. Immediately below these words should be printed the following draft endorsement in blank:
“Redactions (partly) allowed / disallowed by Order of [ ] dated [ ]”
This version should legibly identify the parts redacted in the redacted version as follows:
- Where the redacted parts consist of printed words, they should be bracketed, printed in bold and italic, and highlighted in yellow.
- Where they do not consist of printed words, they should be bracketed and highlighted in yellow.
- A note should be inserted in the right margin opposite each redaction to identify the party against whom confidentiality is sought; e.g. “confidential against Intervener”.
For sample pages of such a version, see Annex 3 to this Practice Direction;
(3) file a summons with a supporting affidavit providing specific justification for the claim for confidentiality in respect of each relevant part of the document. The affidavit should exhibit an extract of the redacted version of the document concerned. This extract should consist of the title page(s) of the document, the redacted page(s), and the backsheet (if any). Where the redacted page is an exhibit, the exhibit sheet should also be included in the extract.
17. The Tribunal will give directions for the expeditious disposal of the application, which may be dealt with by written submissions alone or at a short hearing.
18. Where the request for confidential treatment is granted in whole or in part, the applicant should:
(1) compile a final redacted version of the document accordingly with the words endorsed on the first page:
“Redacted by the Order of [Judge] dated [date]: Redacted Version for [Party]”.
For an example, see Annex 4 to this Practice Direction;
(2) file in the Tribunal an extract of the redacted version, consisting of the title page(s) of the document, the redacted page(s), and the backsheet (if any). Where the redacted page is an exhibit, the exhibit sheet should also be included in the extract; and
(3) file in the Tribunal a schedule of redaction, setting out the page/paragraph number/other reference[1] (if necessary), general description of the redacted information, grounds for redaction and the parties against whom confidential treatment is sought. For a sample schedule of redaction, see Annex 5 to this Practice Direction.
19. Where the confidential treatment sought is refused in whole or in part, if the applicant is the party who files the document, he may seek leave to withdraw that document or part of the document.
20. To avoid wastage of paper and space, the Tribunal only requires an extract of the redacted version to be filed as stated above. The Tribunal will not therefore keep a complete copy of the redacted version.
21. A master set of the complete redacted version of the documents should be retained by the party providing that version, in case further copies are required to be made in future. Any party who subsequently wishes to obtain a complete copy of the redacted version should approach the party who prepared it.
Consent application
22. Where the relevant parties are in agreement, the party requesting confidentiality treatment should write to the Tribunal setting out the agreed confidentiality treatment. Where the agreed terms involve giving access to certain individuals within a party or its representatives, those individuals should be identified.
23. A confidential, unredacted version of the document should be filed in the Tribunal.
(1) This confidential version should identify which parts are redacted in the redacted version as described in paragraph 16(2) above.
(2) The confidential version should be marked appropriately at the top right corner of the first page: see paragraph 27 below, so that it will not be open to inspection with leave except by the parties referred to in the marking.
(3) This confidential version should have annexed to it a schedule of redaction, setting out the page/paragraph number/other reference[2] (if necessary), general description of the redacted information, grounds for redaction and the parties against whom confidential treatment is sought. For a sample schedule of redaction, see Annex 5 to this Practice Direction.
24. In addition, an extract of the redacted version should also be filed in the Tribunal, consisting of the title page(s) of the document, the redacted page(s), and the backsheet (if any). Where the redacted page is an exhibit, the exhibit sheet should also be included in the extract. A schedule of redaction should be filed with this version.
25. For the retention and future reproduction of the redacted version, see paragraph 21 above.
Application for confidential treatment for documents filed or to be filed by other parties
26. Where a party (including a putative party, before proceedings have been commenced against him) wishes to claim confidential treatment for documents filed or to be filed by another party, if the relevant parties are in agreement, the procedure for consent application above may be followed. In the absence of such agreement, the person seeking confidential treatment should make an application by summons as early as reasonably practicable to seek the relevant orders and directions from the Tribunal. It should be noted that a request or application for confidential treatment does not of itself operate to prevent or restrict disclosure of the documents or information by any party or by the Tribunal.
Annotation of parties with access to document
27. Every document filed in the Tribunal (except interlocutory summonses), irrespective of whether confidentiality is claimed for it or not, must be marked with an annotation at the top right corner on the first page specifying the parties who may inspect the document. Parties should ensure the documents they file are correctly annotated. The annotation is intended to guide Registry staff where a party has obtained leave to inspect those documents in the file that are privy to him. Failure to include such annotation may lead to delays in the filing of the document.
28. For example (assuming there are 3 parties: plaintiff, 1st defendant and 2nd defendant, and the document is filed by the plaintiff):
Nature of Confidentiality Claim
Marking on the document
1. None
“Version for P, D1 and D2”
(Note: the parties including the filing party should be individually specified)2. For non-confidential version of an originating document
“Version for P, D1, D2 and the public.”
3. Confidential version for Tribunal only
Example: confidentiality claim against D1 and D2
“Confidential Full Version for P”
4. Confidential version for Tribunal and one or more parties but not all
Example: confidentiality claim against D2 only
“Confidential Full Version for P and D1”
5. If Confidentiality claim under 4 above is granted, P has to serve a redacted version of the document on D2
“By Order of [Judge] dated [date]: Redacted Version for P and D2”
29. For the purposes of this annotation, a document is treated as not accessible to a party if only certain specific named individuals within that party or its representatives have been allowed access to the document.
Hearing bundles
30. Where confidentiality is asserted in relation to documents included in hearing bundles, it is incumbent upon the party who has primary responsibility for the preparation of the bundles, in consultation with the other parties, to ensure that:
(1) the appropriate version of the relevant documents are included in the parties’ bundles respectively (so that, for example, if the Tribunal has allowed confidential information to be withheld by one party from another party, the latter party’s bundles should contain a version of the relevant documents in which the confidential information is redacted);
(2)the documents in the bundles supplied for use by the Tribunal are appropriately marked (in accordance with an agreed colour-code, where appropriate) and annotated (in particular, on the pages containing the confidential information) so as to make it apparent which part of which document is confidential as against which party or parties including the public.
Procedure at hearing
31. Any party who asks that any hearing before the Tribunal take place in private should make the request in advance to the Tribunal (copied to the other parties), specifying to which part of the hearing the request applies and any particular directions sought as to who may be present, and the reasons for the request.
32. The Tribunal may either in advance of or at the hearing:
(1) direct that a hearing or part of a hearing take place in private;
(2) give directions as to the persons who may be present; and
(3) give directions prohibiting the publication, disclosure or other use of any material the Tribunal receives at a hearing, or part of a hearing, held in private.
Tribunal’s decisions and reasons
33. Any party who requests that the Tribunal exclude confidential information from any publicly available version of its judgments and decisions should make that request prominently in his submissions. The Tribunal may, if it considers appropriate to do so in all the circumstances, accede to the request.
34. This Practice Direction shall come into effect on 14 December 2015.
Dated this 29th day of October 2015.
| (Geoffrey Ma) |
|
| Chief Justice |