This decision makes sense and the analysis behind it is extraordinarily thorough. However, it reinforces the position that a number of timetables for high court decisions may contain unenforceable provisions. There is likely to be cases in which parties make decisions not to disclose transaction agreements based on such provisions, simply to establish that the confidential transaction they believed to have been entered into and approved by the Tribunal was in fact disclosed to third parties in the usual manner should such disclosure obligations occur. Nevertheless, the approach to colonization in Zenith is far from worthless. The retention of confidential documents in the possession of lawyers should protect against requests for access to the minutes, which could be filed by anyone. In the continuation of the appeal process, BGC argued that the transaction agreement dealt only with previous communications and that, as such, the privilege had not been set aside. While the judgment does not take up this argument in detail, it is clear that not all documents mentioned in a treaty are included in this treaty and that it is possible to refer (in the strict sense) to communications without prejudice, without renouncing privileges. Nevertheless, there is a good reason why the parties to the trial will remain there: when one affirms, accepts or relies on the content of a privileged communication in an open document, one takes a risk. Thus, the Court of Appeal unanimously held that the inclusion of advance communications in the registered transaction agreement could not be maintained. Arnold LJ justified in points 16-18 by points 16-18: « The only parts of such an injunction, which constitute the exercise of the judiciary to require, prohibit or authorize a party to take action, are the suspension of the proceedings and the freedom to apply. 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, and as in the case of the settlement agreement in BGC/Tradition, it is up to them and their advisors to choose to adopt provisions that purport to preserve the prerogative or remain silent. Thus, the fact that these provisions may prove to be negligible can be verified if and if a third party requests an audit. « 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.