,

Prepared for Unknown by ICLR

The WLR Daily case summaries

[2021] WLR(D) 410

Court of Appeal

Manchester City Football Club Ltd v Football Association

Premier League Ltd and ors
[2021] EWCA Civ 1110

2021 June 30; July 20

Sir Geoffrey Vos MR, Sir Julian Flaux C, Males LJ

Court of Appeal (Civil Division)— Practice— Permission to appeal— Judge giving judgment rejecting challenge to
arbitration award — Judge subsequently deciding to publish judgment— Whether Court of Appeal having
jurisdiction to hear appeal against decision to publish judgment— Senior Courts Act 1981 (c 54), ss 16, 18(1)(g)

Arbitration— Practice— Confidentiality— Premier League instituting investigation of member club and seeking disclosure
of documents and information under League’s rules— Dismissal of club’s arbitration claim in private hearing in
Commercial Court— Judge refusing permission to appeal and mindful of publishing judgment— Whether
publication proper— Whether in public interest— Arbitration Act 1996 (c 23), ss 67, 68

The Premier League began a disciplinary investigation of one of its clubs (“the club”) following media allegations that it was
in breach of the Premier League’s rules. Although the Premier League and the club agreed to keep that investigation
confidential, a similar investigation by the Union of European Football Associations (“UEFA”) into alleged breaches by the
club of its financial fair play regulations received widespread media coverage. Pursuant to the provisions of its rules, the
Premier League began arbitration proceedings against the club, seeking disclosure of information and documents and an
order for specific performance. By an arbitration award, the arbitration tribunal held that it had substantive jurisdiction to
hear the Premier League’s claim. The club issued an application by an arbitration claim form in the Commercial Court, in
which it: (i) challenged the award on the basis that the tribunal lacked jurisdiction, pursuant to section 67 of the Arbitration
Act 1996, (ii) challenged the award on the basis of serious irregularity, pursuant to section 68 of that Act and (iii) sought the
removal of the arbitrators, pursuant to section 24 of that Act. The judge dismissed the application after a hearing in private
and refused permission to appeal. The judge decided that her judgment on the merits of the application (“the merits
judgment”) should be published, as should her judgment dealing with the question of whether that judgment should be
published (“the publication judgment”).

On the club’s appeal against that decision—

Held, appeal dismissed. (1) The judge's decision that the merits judgment and the publication judgment should be
published was an application of common law principles. It was not a decision of the court under sections 24, 67 or 68 of the
Arbitration Act 1996 and was, therefore, not caught by the limitation on the right of appeal in section 18(1)(g) of the Senior
Courts Act. In those circumstances, the Court of Appeal had jurisdiction to hear the club’s appeal under section 16 of the
1981 Act. The restriction in section 18(1)(g) of that Act was not applicable (para 40).

Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2005] QB 207, CA
applied.

(2) In all the circumstances, the judge had made the correct evaluative assessment in ordering that the merits judgment
and the publication judgment should be published, for a series of inter-linked reasons. First, publication of the merits
judgment would not lead to disclosure of significant confidential information. What would be disclosed was the existence of
the dispute and the arbitration where the League’s investigation was already public knowledge. It was unreal to suggest
that the challenge to the jurisdiction and the unsuccessful allegation of apparent bias, was in any sense significant
confidential information. The publication would not disclose any details of the substance of the underlying disclosure
dispute. Second, there was a legitimate public interest in how disputes between the League and member clubs were
resolved and especially the applicant’s allegation of structural bias which appeared to have lead to a change in the rules.
Third, the fact that the Premier League was also opposed to publication was of some weight, but should lead to the court
being careful not simply to accept the parties’ wishes without scrutiny. Fourth, in so far as the judgment confirmed the
Premier League’s entitlement to claim specific performance against member clubs, it was of public interest and
significance. Fifth, the judge was right to view the applicant’s case that publication would cause it prejudice or detriment
with considerable scepticism. Given that the public interest in publication outweighed any confidentiality, there was no good
reason for deferring publication until after the conclusion of the disciplinary process (paras 53–60, 61–66, 67).

Decision of Moulder J [2021] EWHC 711 (Comm) affirmed.

Lord Pannick QC, Paul Harris QC and David Gregory (instructed by Clifford Chance LLP) for the applicant.

Adam Lewis QC and Andrew Hunter QC (instructed by Bird & Bird LLP) for the Premier League.

ROBERT RAJARATNAM, Barrister