McKillen v Misland (Cyprus) Investments Ltd

The court refused an application by Mr McKillen for a continuation and extension of an interim confidentiality regime that would have denied the defendants access to documents and evidence and would have required part of the trial to be held in private. The judgment applies fundamental common law principles of open justice and natural justice, relying on Al Rawi and related authorities to hold that wholesale denial of a party's access to evidence at trial is impermissible in ordinary civil litigation and, if it exists at all, would be exceptionally rare. The judge found the factual evidence did not establish a substantial risk that disclosure would be misused by the Barclay interests to destabilise Mr McKillen's finances or frustrate funding negotiations, and that much of the financial material was commercial rather than purely personal. The court therefore dismissed the application for a private hearing of the relevant part of the trial and refused further restrictions on defendants' use of documents referred to in open court.

This was an application by the petitioner/claimant, Patrick McKillen, seeking continuation and extension of a confidentiality regime for pre-trial disclosure and for a part of the trial to be heard in private. The underlying proceedings were (i) a petition under section 994 of the Companies Act 2006 alleging unfairly prejudicial conduct of the affairs of Coroin Limited and (ii) a tort claim alleging conspiracy to injure by unlawful means. The dispute concerned the acquisition of shares and control of Coroin Limited and in particular alleged breaches of pre-emption rights and contractual duties of good faith.

The confidentiality regime sought had two principal features: (a) a substantial body of documents and the attendant written and oral evidence would be disclosed only to the legal advisers of the defendants and not to the defendants themselves; and (b) the part of the trial concerned with funding and Mr McKillen's financial position would be heard in private.

Key issues before the court were:

• whether the court should permit any departure from the open justice principle so as to hold part of the trial in private (CPR 39.2 and Practice Direction 39APD were engaged);
• whether natural justice permits denial of a party's access to evidence at trial (the court considered Al Rawi and related authority);

The judge reviewed the authorities establishing the primacy of public hearings and the right of a party to know the case against him. He considered precedent on confidentiality rings in intellectual property and trade-secrets litigation and the special-advocate regime in Al Rawi. The court concluded that a regime denying defendants access to evidence at trial would be inconsistent with common law principles and that the factual evidence in support of the proposed restrictions was inadequate. The judge examined the evidence of attempts by the Barclay interests to acquire loans secured on Mr McKillen's shares and other approaches to lenders, but found no sufficient demonstrated propensity or realistic prospect of misuse of disclosed material which would justify a private hearing. The court also analysed whether the financial material was of the character contemplated by CPR 39.2(3)(c) as 'personal financial matters' and concluded that much of it was commercial and previously in the public domain; on balance the requirements of open justice prevailed.

The court therefore dismissed Mr McKillen's application to continue the restrictive confidentiality regime and to hear the relevant part of the trial in private.

The court dismissed Mr McKillen's application. The judge held that wholesale denial of a party's access to evidence at trial is impermissible at common law except, at best, in very rare and exceptional circumstances; the factual evidence did not establish a substantial risk that disclosure would be misused by the Barclay interests; the financial material was largely commercial and in part already public; and the principle of open justice therefore required the relevant hearings to be public.