Associated Newspapers Ltd v Bannatyne & Ors

Access to statements of case is governed by the strong principle of open justice. Under CPR 5.4C, editing may be ordered only where necessary and proportionate to protect a sufficiently weighty countervailing interest. Confidentiality attaching to financial remedy proceedings may extend to voluntary disclosure, but it is subject to the iniquity exception. Information and documents used to mislead the court do not retain confidentiality merely because the misconduct was later admitted and corrected. Publicising such conduct may serve the public interest. The court must distinguish material exposing attempted fraud or perjury from genuinely private financial information, and may permit disclosure of the former while requiring proportionate redaction of the latter.

Associated Newspapers Ltd applied for access to statements of case filed in related unfair-prejudice petition and wrongful-dismissal proceedings concerning Bannatyne Fitness Ltd. The respondents sought redactions because the statements referred to confidential financial remedy proceedings arising from a divorce. The application was treated as one under CPR 5.4C, although the original application had also referred to the Insolvency Rules. The central issue was whether confidentiality and privacy outweighed open justice and justified restricting inspection of the statements of case.

1. The application was treated as an application under CPR 5.4C. The court accepted that the general rule permits a non-party to obtain a statement of case, but that editing may be ordered where the requirements of the rule are met.

2. Confidentiality attaching to disclosure in divorce financial remedy proceedings extends to voluntary disclosure. The court relied on Allan v Clibbery [2002] EWCA Civ 45 in reaching that conclusion.

3. The iniquity exception recognised in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 applied. The production of a contingency agreement and supporting board minute bearing dates which did not reflect their true creation, together with the admitted attempt to mislead the court, was sufficiently analogous to false evidence and documents in that authority.

4. Later repentance and correction did not eliminate the public interest in exposing an attempt to mislead the court for financial advantage. There is no public interest in inhibiting honest disclosure, but there is a public interest in making clear that correcting false evidence does not necessarily prevent publicity.

5. Redaction was therefore assessed passage by passage. Unrestricted access was allowed to the passages concerning the alleged misconduct and related matters. Redaction was justified for passages concerning the payments forming part of Mrs Bannatyne’s settlement, including their amount, structure and timing, because Associated Newspapers had already undertaken not to publish those matters. Those redactions were necessary, appropriate and proportionate.

6. The applicant was substantially successful. Mr Bannatyne was ordered to pay Associated Newspapers Ltd’s costs.

First-instance application. An earlier paper application was considered by Judge Bird, who directed service and adjourned the matter after undertakings had been given. The substantive hearing was determined by His Honour Judge Hodge QC sitting as a High Court judge.