“The only elements of such an injunction that constitute the exercise of the judiciary to compel a party to prohibit or authorize action are the stay of proceedings and the freedom to file an application. The timing of such a contract only covers billing conditions that are akin to a contract between the parties. These terms can only be applied by a later application. Only then will the Court of Justice, when it arrives, have to consider the terms of the transaction and decide on their enforceability. As such, the question arose as to whether, given the terms of the transaction agreement, the applicants could maintain a right to privileges over previously privileged communications (called “precursor notifications” in the judgment). The corresponding terms were identified by Arnold LJ. The main clause was that pre-communication planning posed considerable risks. The analysis of Master Davison and Moulder J in the first appeal procedure was that the transaction agreement was subject to disclosure in its entirety, including its schedules, the material issued to them and the e-mail specifically identified by the sender and date. “I see no basis or policy power to assess, in the initial phase, the relevance of the label that the parties have attached to their “confidential” transaction agreement. The principle of open justice is not in question. And no one has suggested, and I think it is controversial, that, in this first phase, the Court of Justice should be concerned, for another reason, with the question of whether the confidentiality that would have been granted to the agreement would be applicable in the event of a challenge.
I believe that only then will the powers of duress of the court be invoked and the principle of open justice is invoked. In the two cases of Zenith Logistics Services (UK) Limited and others against Coury, UUU/BBB, the Master had refused to authorize transaction agreements purported to preserve confidentiality in their contents. When cases came before Warby J, there was considerable debate about what a court does when it makes a transaction. It is an independent interest for practitioners. However, the points in our analysis above are narrower. It is Warby`s J`s finding that the Tribunal, when it approves a Tomlin mandate that issues a transaction contract that claims to be confidential and does not comply with the consultation of third parties, neither orders nor accepts that the transaction contract is confidential or is not understood by third parties: the fact that the parties choose to include provisions between them that purport to respect privileges or confidentiality is a matter for them.
