McKillen v Misland (Cyprus) Investments Ltd & Ors

Open justice and natural justice are fundamental principles. A civil court may restrict public access only where necessary in the interests of justice, on clear and cogent evidence, and by the least restrictive effective means. At common law the court has no jurisdiction to deny a party access to evidence relied on at trial; any such jurisdiction would be exceptional and largely theoretical. Confidentiality of financial information does not by itself justify a private hearing. CPR 39.2 requires careful attention to whether the information is genuinely personal or confidential, the likely harm from publicity, and the competing importance of open justice and freedom of expression. Business and investment finances conducted by an individual do not become personal financial matters merely because they are held in that individual’s name.

Patrick McKillen sought continuation of a pre-trial confidentiality regime in proceedings concerning Coroin Ltd and alleged unfair prejudice under section 994 of the Companies Act 2006, together with a conspiracy claim. The proposed regime would have restricted the respondents’ access to documents and evidence concerning his ability to fund purchases of shares and would have required part of the trial to be heard in private.

During the hearing, he abandoned the proposal to exclude the respondents from the evidence and instead sought limited access for representatives subject to undertakings. He continued to seek a private hearing, relying on confidentiality, personal financial information and alleged risks of interference with funding. The court considered whether either form of protection was legally available and justified on the evidence.

The application was dismissed.

1. Access to evidence. The court held that the principles of natural justice ordinarily require a party to know the case against it and the evidence relied upon. Following Al Rawi v The Security Service, the court considered that, at common law, it had no jurisdiction to deny a party access to evidence used at trial. Any such jurisdiction would be so exceptional as to be largely theoretical. Confidentiality rings may be appropriate in patent and trade-secret litigation, particularly at interlocutory stages, but no authority established a trial proceeding without a party having access to the evidence.
2. Open justice. Any departure from public hearings had to be necessary in the interests of justice, established by clear and cogent evidence, and kept to the minimum. A private hearing was a last resort and could be ordered only where other protective measures were effectively unworkable.
3. Evidence of risk. The alleged risks that the respondents would interfere with funding negotiations or destabilise Mr McKillen’s financial position were remote or speculative. The existing £70 million facility, the absence of evidence that potential funders would be deterred, and the failure of earlier approaches to lenders materially weakened the case for restrictions.
4. Personal financial matters. Under CPR 39.2(3)(c), personal financial matters were distinct from commercial or business financial circumstances. Business borrowings and investments did not become personal merely because the business was conducted partly in an individual’s name. The court also applied the proportionality-based balancing approach required where privacy rights under Article 8 were said to conflict with open justice and freedom of expression.
5. The significance of the funding issue to the unfair-prejudice and tort claims, together with the weakness of the asserted confidentiality interests, meant that the balance clearly favoured a public trial.