Global Torch Ltd v Apex Global Management Ltd & Ors

Open justice is the governing rule. A private hearing is permitted only where a recognised exception applies or exclusion is strictly necessary in the interests of justice. Article 8 and Article 10 rights have no presumptive hierarchy. The court must instead make an intense, fact-specific and proportionate assessment of the competing rights.

Reputational harm from unproven allegations of serious commercial misconduct will ordinarily not justify a private hearing. The same threshold applies at an interlocutory stage. Temporary privacy cannot be granted merely because the allegations may be false or because public proceedings may encourage settlement. Where the allegations are disputed, vindication through the ordinary judicial process remains adequate protection.

Two rival shareholder factions presented petitions alleging unfair prejudice in the affairs of Fi Call Ltd under section 994 of the Companies Act 2006. Each accused the other of serious commercial wrongdoing and sought an order requiring the other side to purchase its shares.

The appellants applied for the Companies Court proceedings to be heard in private and for restrictions on media access to court documents. Morgan J refused the application: [2013] EWHC 223 (Ch). Global Torch and the individual appellants appealed, while Guardian News and Media Ltd and the Financial Times Ltd participated as media interests. The central issue was whether reputational and fair-trial concerns made a departure from open justice necessary.

1. The appeals were dismissed unanimously. Maurice Kay LJ, with whom Richards and Briggs LJJ agreed, upheld Morgan J’s refusal to order a private hearing. The associated challenge to media access to court documents consequently also failed.
2. The judge below had not treated open justice as legally superior to Article 8 rights. Article 8 and Article 10 have no presumptive hierarchy. The required approach is the Re S balancing exercise: intense focus on the particular rights, the justification for restricting each right, and proportionality. A court applying that approach will also address whether the public interest in open justice justifies the curtailment of privacy rights.
3. Under CPR 39.2, open justice applies unless exclusion is strictly necessary in the interests of justice or an established exception applies. Serious allegations may cause reputational harm if false, but embarrassment and potential damage to reputation do not ordinarily justify closing the court. In commercial litigation, the judicial process supplies vindication if allegations are not established.
4. The threshold is not lowered because the proceedings are interlocutory. Limited protection may be necessary where publicity would defeat the very right which the proceedings seek to vindicate, such as a case-specific blackmail claim. That rationale did not apply to disputed allegations of commercial misconduct in unfair-prejudice petitions. A general interim exception would materially erode open justice.
5. The appellants’ assertion that the respondents were advancing false allegations abusively to obtain a settlement depended on disputed facts which could not be determined on the application. It could not therefore establish a necessity for private proceedings.

• Court of Appeal (Civil Division): Dismissed the appeals and upheld the refusal of a private hearing and associated document-access restrictions.
• High Court, Chancery Division, Companies Court: Morgan J refused the appellants’ application for a private hearing under CPR 39.2 and related restrictions: [2013] EWHC 223 (Ch) .