In Sportradar AG and Another v Football DataCo Limited and Others (the Proceedings), the Competition Appeal Tribunal (the Tribunal) held that a non-party is not automatically entitled to access documents merely because they were referred to in open court. This judgment provides useful clarification regarding the circumstances in which the Tribunal will order disclosure of pleadings, submissions, witness statements and expert reports to non-parties.

Background

Altenar Technologies Limited (Altenar), a non-party to the Proceedings, applied for disclosure of non-confidential versions of Sportradar’s claim form, defence, reply, skeleton argument and a witness statement (together, the Requested Documents). Each Requested Document had been referred to in open court in the trial of the Proceedings, before they had been stayed following settlement.

Altenar’s application was made pursuant to paragraph 9.66 of the Tribunal’s Guide to Proceedings 2015 (the Guide), which provides that “[w]here a pleading, skeleton argument, witness statement or expert report is referred to or quoted in open court, the party who produced that document or for whom that document was produced, should be prepared to make a non-confidential version of that document available to a non-party upon request”. If the party refuses to provide the document to the non-party, the non-party may apply to the Tribunal. Following settlement, Altenar’s solicitors approached Sportradar’s solicitors and requested non-confidential versions of the Requested Documents, on the basis that Altenar intended to submit a competition law complaint to the UK Competition and Markets Authority and the Isle of Man Communications and Utilities Regulation Authority arising from Sportradar’s alleged abuses of a dominant position. Sportradar refused to provide the Requested Documents. Following Sportradar’s refusal, Altenar made its application, which Sportradar resisted. 

Decision

Referring to previous judicial decisions, the Tribunal noted that there are two main purposes of the open justice principle: (i) to enable public scrutiny of the way in which the courts decide cases so as to provide public accountability and secure public confidence; and (ii) to enable the public to understand how the justice system operates. However, the Tribunal stated that a non-party does not have a right of access to documents referred to in open court. Rather, “[a] person seeking access to documents under the open justice principle must explain: (i) why he/she seeks access; and (ii) how granting him/her access would advance the open justice principle”. Whether a departure from the open justice principle is justified will depend on the facts of the specific case and the court or tribunal must carry out a balancing exercise, taking into account any countervailing factors and proportionality issues. The Tribunal considered that “where there is a live issue as to whether the open justice principle is engaged at all … the correct approach is that in principle the purpose of the application and whether or not open justice would be served in making the order are highly material if not central to any application, even if, in certain types of situations, the presumption is that production will serve open justice in the absence of countervailing factors”. The Tribunal recognised that this represented a “refinement of approach to that indicated in earlier rulings of the Tribunal”.

The Tribunal noted that paragraph 9.66 is “designed to promote the principles of open justice” and is “confined to certain categories of documents which are often central to any substantive hearings or trials in the Tribunal”. By the nature of these documents, any request to receive non-confidential versions will generally engage the principles of open justice. Furthermore, paragraph 9.66 “states that parties should be ready to produce these categories of documents referred to at a hearing held in public, it does not provide an obligation to do so”. The non-party may apply to the Tribunal if a party is not prepared to provide copies per its request. When an application is made, the Tribunal has discretion over whether to order disclosure. It may consider and balance a number of factors, such as whether the provision of the documents may advance or not advance the open justice principle.

The Tribunal ordered Sportradar to provide Altenar with non-confidential versions of its skeleton argument and pleadings as they were “central to understanding what was before the Tribunal at trial, the issues in play, the parties’ positions on those issues, and to follow what happened at trial”.However, the Tribunal was not satisfied that open justice required the witness statement to be produced. The reference to the witness statement during the trial was limited (it was referenced by Sportradar in a single line of the transcript and by bundle tab number only) and the witness was not called to provide evidence at trial before the case settled. The Tribunal found that producing this document was not necessary to understand what happened at trial or to follow the hearing. If this document was relevant and production necessary in any of the proceedings brought by Altenar, it would have the opportunity to seek the document in those proceedings.

Key takeaways

The Tribunal’s ruling provides useful guidance as to the application of paragraph 9.66 of the Guide. The mere fact that a document was referred to in open court does not automatically entitle a non-party to access the document. Rather, the overarching question is whether access is necessary for the non-party to understand the proceedings, which would further open justice. This suggests that the Tribunal is open to adopting a practical approach to the principles of open justice in competition litigation. 

However, for skeleton arguments, statements of case, expert reports and witness statements (where witnesses have been called), there is a strong presumption that producing these documents serves open justice, given they are (generally regarded as) central to understanding hearings and trials. Parties to proceedings should continue to be aware that they may need to provide non-confidential versions of such documents to non-parties, including in the event of settlement.