Global Torch v Apex Global Management Ltd and Guardian Newspapers Ltd

The Court of Appeal dismissed the appellants' challenge to the Companies Court judge's refusal to order that hearings be held in private and to restrict non-party access to court documents. The underlying proceedings comprised rival petitions under section 994 of the Companies Act 2006 alleging unfairly prejudicial conduct.

The court reaffirmed the paramountcy of the open justice principle at common law (Scott v Scott) and applied the Convention rights framework (Articles 6, 8 and 10 ECHR), holding that any derogation from open justice requires strict necessity and clear and cogent evidence. The judge correctly carried out the balancing exercise (as described in Re S and the guidance of Lord Neuberger) and concluded that reputational concerns of the appellants did not justify private hearings under CPR 39.2(3)(a) or (g). Because the appeal on the private hearing point failed, the associated challenge to restrictions on access to documents also failed.

Background and parties. Fi Call Ltd was a private company whose principal shareholders were Global Torch Ltd and Apex Global Management Ltd. Rival factions each presented petitions under section 994 of the Companies Act 2006, making serious (and reciprocal) allegations of commercial misconduct and misappropriation. The petitions sought buy-out orders and, alternatively in Global Torch's case, a winding up.

Procedural posture. The applications before the judge in the Companies Court concerned whether hearings should be in private under CPR 39.2(3) and whether access to court documents by non-parties should be restricted under CPR 5.4(C). Morgan J refused the applications ([2013] EWHC 223 (Ch)). The decision was appealed to the Court of Appeal ([2013] EWCA Civ 819).

Nature of relief sought. The applicants sought a private hearing and associated restrictions on non-party access to court documents, relying on CPR 39.2(3)(a) (where publicity would defeat the object of the hearing) and (g) (necessary in the interests of justice).

Issues for determination. (i) Whether the judge misapplied the law by treating the open justice principle as inherently superior to competing Article 8 rights; (ii) whether he failed to apply the approach required by authority such as Re S and Guardian News and Media; (iii) whether reputational and privacy rights of the appellants justified a private hearing at interlocutory stage; and (iv) whether there was misuse of process by the respondents such that secrecy was necessary.

Court's reasoning. The Court of Appeal reviewed the common law principle of open justice (Scott v Scott) and the relevant Convention rights (Articles 6, 8 and 10). It emphasised that derogations from open justice can be justified only in exceptional cases and must be strictly necessary, requiring clear and cogent evidence. The court held that the judge had carried out the required intense focus on comparative importance of the rights (as in Re S), had applied the proportionality test and had not given the open justice principle an unlawful legal priority. The factual material did not permit the interlocutory findings necessary to displace open justice: allegations and counter-allegations of misconduct were disputed and vindication by the judicial process (including trial) provided an adequate remedy. Distinguishing authorities concerning privacy, confidential information or blackmail, the court concluded the present case did not fall into an established exceptional category that would justify closing hearings to the public. The appeal was therefore dismissed and, as a consequence, the related application to restrict access to documents also failed.

Wider context. The court reiterated the narrowness of permissible departures from open justice and the importance of applying Lord Neuberger's Practice Guidance and established authorities before making any order limiting public access to hearings or court materials.

Appeal dismissed. The Court of Appeal held that the Companies Court judge applied the correct legal approach: the common law principle of open justice, informed by Articles 6, 8 and 10 ECHR and the guidance in Re S and Lord Neuberger’s Practice Guidance, requires strict necessity before hearings or documents can be withheld from the public. The disputed reputational interests did not meet that threshold on the material before the judge and the judge's balancing exercise was lawful and sustainable.

This is an appeal to the Court of Appeal from Morgan J in the Companies Court (Chancery Division), who refused applications for private hearings and restrictions on access to documents ([2013] EWHC 223 (Ch)). The Court of Appeal ([2013] EWCA Civ 819) dismissed the appeal. A later interlocutory decision on jurisdiction by Vos J ([2013] EWHC 1652 (Ch)) is discussed in the judgment.