JSC BTA Bank v Ablyazov & Ors

Orders restricting public access to court proceedings, documents or reporting should be made only where necessary for the proper administration of justice. The court must assess the particular circumstances and remain vigilant, even where the parties agree that information should be withheld. A failure of full and frank disclosure on an ex parte application may justify setting aside the order. The court may nevertheless continue a modified order where an independent and sufficient justification exists. Where information has been withheld from the public under CPR 5.4C(4) or CPR 39.2(3)(g), section 11 of the Contempt of Court Act 1981 may support directions prohibiting publication, provided those directions are necessary for the purpose of withholding the information.

The claimant applied for the appointment of a receiver over the first defendant’s assets. The first defendant obtained an ex parte order restricting access to documents, requiring the receivership application to be heard in private, and prohibiting publication of the application or related material.

The claimant sought to set aside the order, alleging that the application should not have proceeded without notice and that material matters had not been disclosed or had been misrepresented. The central issues were whether the order should be set aside and, if so, whether equivalent protections should continue on different grounds.

1. The ex parte order was set aside. The first defendant had failed to disclose material matters, including the presence of the claimant’s legal team nearby, the claimant’s previous conduct in ensuring private hearings, and the fact that the first defendant’s ownership or control of relevant institutions was concealed through nominees. Those matters affected whether notice might defeat the application and the weight of the supporting evidence.
2. Interference with the public nature of court proceedings is permissible only where necessary in the interests of the proper administration of justice. The assessment is fact-sensitive. The court must remain particularly vigilant where both parties agree that information should be kept from the public.
3. The restrictions on obtaining documents and holding the hearing in private were justified under CPR 5.4C(4) and CPR 39.2(3)(g). The existing restriction on disclosure of asset information to the claimant itself, together with the risk of harm if the first defendant’s interests became public, supplied an independent justification.
4. Section 11 of the Contempt of Court Act 1981 empowered the court to prohibit publication of the receivership application because the application and related documents had been withheld from the public. Such directions had to remain necessary for that purpose. The order was therefore continued in modified form, allowing disclosure necessary to prepare the receivership application and to police the freezing order.
5. Disclosure to the claimant’s creditors’ steering committee and majority shareholder was not presently permitted, but there was liberty to apply. The parties were directed to prepare an agreed order.