Global Torch Ltd v Apex Global Management Ltd

The principle of open justice applies to trials and interlocutory hearings. A private hearing is an exceptional derogation and is permissible only where strictly necessary to secure the proper administration of justice, supported by clear and cogent evidence. Privacy, confidentiality, embarrassment or reputational harm will not ordinarily suffice.

Where Articles 6, 8 and 10 of the Convention are engaged, the court must focus intensely on the comparative importance of the specific rights, the justification for restricting each right and proportionality. Public interest in open justice may outweigh reputational interests even where serious allegations are involved. Documents placed before the court should generally be accessible to the media for a proper journalistic purpose, subject to fact-specific countervailing considerations.

Two cross-petitions under section 994 of the Companies Act 2006 concerned alleged unfair prejudice in the affairs of Fi Call Ltd. The parties sought private hearings under CPR rule 39.2 and restrictions on non-party access to statements of case and other documents under CPR rule 5.4C.

The Applicants relied principally on the alleged reputational, private-life, health, safety and international-relations consequences of publicity. The Guardian and the Financial Times sought access to documents for journalistic purposes. The central issues were whether privacy was necessary in the interests of justice and whether access to court documents should be restricted.

1. Open justice. Open justice is a fundamental common-law principle. It applies to trials and interlocutory hearings and includes both public access to hearings and the media’s right to report them. Derogation is justified only in exceptional circumstances where it is strictly necessary to secure the proper administration of justice. The burden lies on the party seeking the derogation, who must provide clear and cogent evidence. Any restriction must be the minimum strictly necessary.
2. CPR rule 39.2. Rule 39.2(3)(a) did not apply. The objects of the hearings were determinations concerning immunity, jurisdiction and procedural directions, none of which would be defeated or impaired by publicity. Rule 39.2(3)(g) also did not justify private hearings. The Applicants’ evidence concerning harm to international relations, distress and physical attack was largely non-expert opinion and submission, and was not clear and cogent.
3. Convention rights. The court proceeded on the basis that Article 8 might be engaged because a seriously offensive attack on reputation could have an inevitable direct effect on private life and personal integrity. Articles 6 and 10 nevertheless had to be considered. Applying the approach in Re S (a Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, the court focused intensely on the comparative importance of the specific rights, the justifications for interference and proportionality. The importance of open justice outweighed the reputational interests relied on.
4. Access to documents. The Guardian and the Financial Times sought the documents for a proper journalistic purpose. Applying R (Guardian News & Media Ltd) v Westminster Magistrates’ Court [2012] 3 WLR 1343 at [85], the court permitted access because the documents were likely to assist fair and accurate reporting and no consistent countervailing reason had been shown.
5. The applications for private hearings and restrictions on statements of case were refused. The Guardian and the Financial Times were permitted to obtain the specified documents under CPR rule 5.4C(2). The confidential schedule would become public after the period for appealing expired, unless an appeal was filed, in which event it remained confidential until further order.

This was a first-instance decision in the Companies Court. The judgment provided for the confidential schedule to remain confidential during the period permitted for an appeal under CPR Part 52, and thereafter to enter the public domain unless an appeal was filed.