Deripaska v Cherney

A hearing may depart from the principle of open justice only to the extent strictly necessary in the interests of justice. Necessity is determined by weighing the relevant factors; it is not a matter of discretion.

Reliance on the right to life requires a real and immediate risk that is objectively verified, present and continuing. The court must also consider whether the proposed protection would materially reduce that risk. If the right would otherwise be infringed, appropriate protection is mandatory.

An appellate court will be reluctant to disturb a fact-sensitive balancing or case-management decision unless the judge erred in principle, considered an immaterial factor, omitted a material factor or reached an impermissible conclusion.

The respondent claimed that he had sold the appellant an interest in a Russian aluminium company. The appellant denied that commercial relationship and alleged that the respondent was associated with organised crime groups which had imposed a protection racket upon him.

The appellant intended to call witnesses concerning the membership and activities of those groups. He sought orders requiring their evidence to be given wholly or partly in private, relying on article 2 of the European Convention on Human Rights and CPR Part 39.2. Andrew Smith J granted protection to some witnesses but largely refused it for the witnesses concerned by the appeal.

The central issues were whether public evidence would expose those witnesses to a real and immediate risk to life and whether protection was otherwise necessary in the interests of justice.

1. Appeal dismissed unanimously. Lewison LJ, with whom Munby and Maurice Kay LJJ agreed, held that the judge had applied the correct principles and reached conclusions which were open to him.

2. The article 2 claim failed. The evidence expressed general concerns about reprisals but contained no direct evidence from the witnesses, no expressed fear of death and no specific evidence of threats or pressure. It did not establish a real and immediate risk to life which was objectively verified, present and continuing. When article 2 is invoked, the possible form of the feared reprisals matters. The court must also assess whether the requested measures would materially reduce the alleged risk. Had an infringement been established, protective measures would have been mandatory rather than dependent upon a balancing exercise.

3. Under CPR Part 39.2, public justice is the general rule. A departure is permitted only if, and to the extent that, justice strictly requires it. Whether an order is necessary is not discretionary, although its determination requires the court to weigh competing considerations. Restricting disclosure of identity is less objectionable than conducting proceedings behind closed doors. A disinterested witness prejudiced by publicity has a particularly strong claim to protection.

4. The judge properly examined each witness’s circumstances and the likely efficacy of protection. Relevant matters included the absence of evidence that witnesses would refuse or constrain their testimony, the age and public availability of much of their information, the prior publication of their names and the distinction between these civil proceedings and criminal cases directly targeting organised crime figures. Speculation about possible reprisals or future reluctance to testify did not establish necessity.

5. The decision was a provisional case-management decision capable of reconsideration if circumstances changed. An appellate court should not substitute another permissible evaluation of the evidence. Intervention requires an error of principle, reliance on immaterial considerations, omission of material considerations or a conclusion that was impermissible or plainly wrong. None was shown.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1235, unanimously dismissed the appellant’s appeal against the refusal of witness-protection measures.
2. High Court, Queen’s Bench Division, Commercial Court: Andrew Smith J granted protection in respect of certain witnesses but largely refused the appellant’s application concerning the witnesses addressed by the appeal. The citation is not stated in the judgment.