‘Waive confidentiality’ in arbitration awards, PCA urges pub-owning businesses

At a pubs code adjudicator (PCA) and code compliance officer (CCO) meeting on the 26 March 2018, the PCA said that by waiving confidentiality where there was no commercial sensitivity, tenants would have access to the same information as pub-owning businesses (POBs), which would help explain the reasons for a judgment.

Tenant representatives have long complained that the lack of transparency in arbitration awards has blocked the progress of the pubs code and left them at an unfair disadvantage.

Meeting chair Fiona Dickie, who is the deputy PCA, asked CCOs to consider and advise the PCA in writing on whether they would agree to the request. 

Decisions compared to courts and tribunals

Official notes from the meeting said: “Awards are fact-specific but [Dickie] compared the situation to those first-instance decisions in courts and tribunals, which are publicly available. At present, POBs and tied pub tenants have different levels of information and understanding of previous awards and this is undesirable and has the potential for unfairness.

“The recent stakeholder meeting held by the pubs minister, Richard Harrington, attended by POB CEOs and tied tenants’ representatives was referred to, and a number of CCOs said that there were different understandings about what had been agreed to at the meeting.”

Those attending the meeting (see box) then discussed what commercial confidentiality existed in the decisions and how to remove this information.

No cherry picking to look good

The notes said CCOs agreed that whatever the eventual position, “confidentiality was waived on all or no cases” and that there would be no cherry picking by POBs to waive confidentiality for cases where the outcome was more favourable to them.

POBs are expected to confirm whether they will agree to the PCA’s request by 19 April.

Dickie reiterated the PCA’s call for greater transparency for arbitration cases in a speech at the Campaign for Real Ale’s annual general meeting at the weekend.

She told the audience: “Having made a number of awards, the PCA and deputy PCA are concerned that as the POBs and tied pub tenants do not have the same access to these awards, they have different levels of information and understanding of the judgment taken by the regulator in disputes; this is undesirable and has the potential for unfairness. In addition, the impact of arbitrations has not been felt across the sector as quickly as the PCA and deputy PCA would like.

“The PCA and deputy PCA believe there should be more transparency in pubs code arbitrations where there is no commercial sensitivity to protect. As a result, [we] have asked POBs to agree to waive confidentiality in arbitration awards as this will be the best way to get information into the public domain and level the playing field.”