Global Torch Ltd v Apex Global Management Ltd

This judgment determines competing applications for private hearings and for restriction of public access to court documents in two related unfair prejudice petitions under section 994 of the Companies Act 2006. The court reaffirmed the fundamental common law principle of open justice and the limited circumstances in which hearings may be held in private under CPR r 39.2, and applied Convention rights (Articles 6, 8 and 10) and the established balancing approach between them.

The judge held that the applicants had not discharged the burden of producing clear and cogent evidence to show that private hearings were strictly necessary in the interests of justice under CPR r 39.2(g) or that publicity would defeat the object of the hearings under r 39.2(a). Allegations relied on by the applicants (serious reputational allegations, risk to health and safety, and potential diplomatic consequences) were not shown by sufficient evidence to warrant the exceptional derogation from open justice.

The applications to prevent non-parties (notably the Guardian and the Financial Times) obtaining statements of case and other documents under CPR r 5.4C were refused. The media interveners were granted access under r 5.4C(2) to the specified documents; the court emphasised that any restriction must be no more than strictly necessary and that publicity serves the public interest in the administration of justice.

This is a first-instance decision on interlocutory applications arising from two cross-related unfair prejudice petitions concerning Fi Call Ltd. The principal procedural applications were (a) that certain interlocutory and preliminary issues and parts of the proceedings be heard in private under CPR r 39.2, and (b) that non-parties (in particular the Guardian and the Financial Times) be prevented from obtaining copies of statements of case and other court documents under CPR r 5.4C.

Background:

• Fi Call Ltd is a private company; the main shareholders are Global Torch Ltd (petitioner in one petition) and Apex Global Management Ltd (petitioner in the other).
• Each shareholder presented a section 994 petition alleging unfairly prejudicial conduct by the other's camp; the petitions contain serious and disputed allegations of misconduct, misappropriation and other wrongdoing.
• The respondents/applicants (including two Saudi princes and a director) sought orders for parts of the litigation to be heard in private and for the withholding or redaction of statements of case, alleging (inter alia) grave reputational harm, risk to personal safety and adverse diplomatic consequences if the allegations were publicly aired.

Issues before the court:

• Whether hearings or parts of them should be held in private under CPR r 39.2 (notably r 39.2(a) and r 39.2(g)).
• Whether non-parties should be denied access to statements of case and other documents under CPR r 5.4C(4), and whether the media should be granted access under r 5.4C(2).
• How Convention rights (Articles 6, 8 and 10) and the common law principle of open justice should be balanced in the interlocutory context.

Court reasoning and conclusions:

1. The court summarised the law: open justice is a fundamental common law principle; derogations are exceptional and require clear and cogent evidence. The court relied on authorities including Scott v Scott, Re Guardian News & Media, Al Rawi and the Practice Guidance on interim non-disclosure orders.
2. CPR r 39.2(a) applies where publicity would defeat the object of the hearing; the judge found the preliminary and jurisdictional issues to be matters that would not be defeated by publicity and so r 39.2(a) did not apply.
3. As to CPR r 39.2(g) (private hearing necessary in the interests of justice), the court carried out the required balancing between Articles 6, 8 and 10. Although prepared to assume Article 8 might be engaged for the natural person applicants, the court concluded that the importance of the open justice principle outweighed the reputational and other harms alleged. The evidence adduced by the applicants was not sufficiently clear and cogent to justify the exceptional step of private hearings.
4. On CPR r 5.4C, the court applied the default open justice position that documents placed before a judge and referred to in proceedings should, save for good reason, be accessible to the press; the Guardian and the FT were permitted to obtain the documents sought under r 5.4C(2). No order under r 5.4C(4) preventing access to statements of case was made.
5. A confidential schedule listing five specific sensitive allegations was prepared and held confidential only for the period allowed for an appeal; if no appeal were brought, the schedule would form part of the judgment and enter the public domain.

The applications for hearings in private and for orders preventing non-parties obtaining statements of case were refused. The judge concluded that open justice predominated, that CPR r 39.2(a) did not apply, and that CPR r 39.2(g) did not justify private hearings on the material before the court. Applications by the Guardian and the Financial Times under CPR r 5.4C(2) were allowed and no order was made under r 5.4C(4) to withhold statements of case. The judgment stressed the heavy burden on any party seeking to derogate from open justice and the need for clear and cogent evidence to justify private hearings.