Global Torch Ltd. & Ors v Apex Global Management

The Court of Appeal granted permission to appeal against Morgan J's refusal to make permanent privacy orders and restrictions on access to court documents. The dispute arose from competing shareholder petitions under section 994 of the Companies Act 2006, and the applications engaged the conflict between the principle of open justice and privacy rights under the European Convention on Human Rights (notably Articles 6, 8 and 10) as implemented by the Human Rights Act. The appeal was permitted because the applicant showed arguable grounds that the judge misdirected himself in law by not applying the correct balancing test derived from Re Guardian News and Media and by applying a summary-judgment-style standard at the interlocutory stage rather than assessing whether interim protection was justified pending resolution of immunity and jurisdiction issues under the Civil Procedure Rules (in particular CPR 39.2 and CPR 5.4C).

Background and parties: These interlocutory applications arise in rival shareholder petitions under section 994 of the Companies Act 2006 concerning Fi Call Limited ("FC"). Global Torch Limited presented a petition seeking buy-out of its shares (or winding up); Apex Global Management presented a counter petition naming, among others, two Saudi princes (Prince Abdulaziz and Prince Mishal). The princes were said to be linked to Global Torch and were the subject of various allegations. Issues of sovereign immunity and service/jurisdiction were live and due for further hearings.

Relief sought: The princes sought orders under CPR Rule 39.2(3) that hearings be heard in private except for pure issues of law on sovereign immunity and that access to documents on the court file be restricted under CPR Rule 5.4C. Interim protection had been granted by Morgan J but his substantive refusal to make the protection permanent was challenged.

Procedural posture: Morgan J heard extensive oral evidence and reserved judgment ([2013] EWHC 223 (Ch)). He rejected the princes' substantive applications but granted interim protection. Permission to appeal was refused on paper by Lewison LJ; the present hearing was an oral renewal before the Court of Appeal (Lloyd LJ).

Issues framed: (i) The proper legal test for balancing open justice and privacy on an interlocutory basis, (ii) whether the allegations concerning the princes engaged Article 8 reputation and justified interim protection, (iii) whether Morgan J erred by applying too strict a test (akin to summary judgment) at the interlocutory stage, and (iv) the temporal scope of protection pending determination of sovereign immunity and jurisdiction applications and any appeals.

Court's reasoning: The court considered submissions that the test in Re Guardian News and Media, suitably adapted to the non-anonymity context, required asking whether there was sufficient public interest in reporting the proceedings, including the substance of allegations, to justify curtailing privacy rights. The judge had not posed that question in the form argued and appeared to require too high a standard of proof at the interlocutory stage. Given the outstanding immunity and jurisdiction issues and the interim nature of the protection sought, the appellants had shown reasonable grounds of appeal and a compelling reason for expedition. For those reasons permission to appeal was granted and the appeal ordered to proceed on an expedited basis.

Permission to appeal was granted. The Court of Appeal concluded there were reasonable and arguable grounds that Morgan J misdirected himself in law by not applying the appropriate balancing test between open justice and privacy (as drawn from Re Guardian News and Media) and by applying an unduly high summary-judgment-style standard at the interlocutory stage; accordingly the appeal should proceed on an expedited basis.

Appeal from the High Court (Chancery Division, Morgan J) judgment reported at [2013] EWHC 223 (Ch). Permission to appeal was refused on the papers by Lewison LJ; oral renewal before the Court of Appeal (Lloyd LJ) resulted in permission being granted ([2013] EWCA Civ 507).