North Shore Ventures Ltd v Anstead Holdings Inc & Ors

A hearing falling within the categories in Practice Direction 39A para 1.5 is not automatically private. It must be listed as private, or the judge must order privacy. Where it is not listed as private and no indication excludes the public, the general rule that hearings are public applies.

Transcripts of examinations as to assets are subject to the restriction in CPR 34.12: they may be used for the purposes of the proceedings in which the examination was ordered. The court should not impose a wider blanket prohibition where permitted uses remain necessary. A practical direction may be given to ensure that non-parties obtain transcripts only for a permitted purpose.

The claimant had obtained a substantial judgment against the second and third defendants and had conducted hearings for their cross-examination about assets. The defendants applied for a declaration that three hearings had been private, which would restrict non-parties’ access to transcripts, and for an injunction preventing the claimant from using or disclosing the transcripts.

The hearings had not been listed as private, no order for privacy had been made, and the parties appeared to have treated them as public. The central issues were whether Practice Direction 39A para 1.5 gave the hearings a private character despite the absence of private listing, and whether CPR 34.12 justified a restraint wider than its express limitation to use for the purposes of the proceedings.

1. The application was refused. The hearings were public because they were not listed as private, the public was not excluded, and there was no order directing that they be conducted in private.

2. Where proceedings involve confidential financial information and fall within a category in Practice Direction 39A para 1.5, the court is required to list them in private in the first instance. If they are so listed and no party or judge alters the position, they continue in private. The judge must keep privacy under review, and any party seeking to maintain privacy must justify it when the issue is raised.

3. Paragraph 1.5 does not deem a hearing private when it has not been listed as such. Privacy is a question of fact. The public is entitled to assume that proceedings are open where neither the list nor the court door indicates otherwise. Parties and advisers who seek privacy must apply for it.

4. The observations in Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co concerning CPR 39.2 were not necessary to that decision, but they supported the distinction between a starting position and a presumption. All relevant circumstances must be considered if privacy is challenged.

5. CPR 34.12 restricts the use of the product of an examination as to assets to the purposes of the proceedings in which the order was made. That restriction permits use at a relisted examination, in related permission proceedings, and in a charging-order application. A broader injunction preventing all use or disclosure was therefore unjustified.

6. Because a public transcript may nevertheless be obtained by a non-party, the court directed that the file be marked to indicate that copies could be obtained only for a purpose permitted by CPR 34.12. The substantive orders sought were otherwise refused.

The judgment records that the underlying judgment had been appealed to the Court of Appeal and that the Court of Appeal reduced the judgment and ordered a stay pending further proceedings. Those appellate proceedings concerned the underlying judgment, not the present application.