Associated Newspapers Ltd v Bannatyne & Ors

The court resolved an application under CPR 5.4C for press inspection of statements of case in proceedings concerning Bannatyne Fitness Ltd, balancing the principle of open justice against the confidentiality attaching to financial remedy (divorce) proceedings. The judge held that disclosures made in financial remedy proceedings are subject to an implied undertaking of confidentiality but that the iniquity exception (as explained in Lykiardopulo) can displace that confidentiality where there has been deliberate misleading of the court. The court found the iniquity exception engaged in relation to many of the matters complained of and therefore permitted unrestricted inspection of most of the statements of case, but ordered redaction of those passages which would disclose details of the parties' matrimonial financial settlement that had already been the subject of an undertaking to the former Mrs Bannatyne. Costs were awarded to Associated Newspapers Ltd against Mr Bannatyne.

Background and nature of the proceedings.

• The proceedings comprise a Part 30 Companies Act 2006 petition for unfair prejudice (presented by Mr Graham Nigel Armstrong) and a Part 7 claim for wrongful dismissal, case-managed together. Associated Newspapers Ltd applied for inspection of statements of case on the court file; the respondents sought an order under CPR 5.4C(4)(c) directing that statements of case be edited before release to the press.

Issues framed by the court.

• Whether the general rule of open justice (inspection of statements of case by non-parties under CPR 5.4C(1)) should be displaced by a countervailing need to preserve confidentiality arising from financial remedy proceedings and related undertakings.
• Whether the implied undertaking of confidentiality attaching to disclosures in financial remedy proceedings applied to the material in the statements of case.
• Whether the iniquity exception (Lykiardopulo) applied so as to permit publication notwithstanding confidentiality, and whether repentance by the person who earlier provided misleading material removed the public interest in disclosure.

Facts relevant to confidentiality.

• A Form E and attached contingency agreement and board minute were produced in divorce financial remedy proceedings. The documents were dated January 2010 in the material originally produced, but corrected evidence later established the documents had been written in September 2011; both Mr Bannatyne and Mr Armstrong later made corrective statements and apologised.
• A consent order settling the financial remedy proceedings contained undertakings prohibiting disclosure of confidential documents and information from those proceedings; Associated Newspapers Ltd had given certain undertakings to protect the former Mrs Bannatyne.

Court’s reasoning and decision.

• The judge accepted that the implied undertaking of confidentiality in financial remedy proceedings extends to voluntary and compulsory disclosure (Allan v Clibbery) but held the iniquity exception in Lykiardopulo was engaged because the case involved deliberate misleading conduct (backdating and related matters).
• The court held that repentance and subsequent correction did not eliminate the public interest in exposing attempts to mislead the court; publicising such conduct can serve the public interest and encourage frank disclosure.
• Applying these principles, the court refused wholesale redaction. It ordered unedited disclosure of the bulk of the passages challenged by the respondents but ordered redaction of those paragraphs (77 and 79–82 of the points of claim) that would reveal details of the matrimonial settlement and payments, matters already covered by the applicant’s undertaking to the former Mrs Bannatyne.
• Costs were ordered in favour of Associated Newspapers Ltd to be paid by Mr Bannatyne.

Procedural note: the court treated the respondents’ request for edited disclosure as if brought under CPR 5.4C(5) despite the absence of a formal Part 23 application notice.

Application allowed in part. The court balanced open justice against confidentiality arising from financial remedy proceedings: most challenged passages in the statements of case were to be disclosed unredacted because the iniquity exception applied to deliberate misleading conduct, but passages that would disclose the terms or payments of the matrimonial settlement (already protected by an undertaking to the former Mrs Bannatyne) were to be redacted. Costs were awarded to Associated Newspapers Ltd against Mr Bannatyne.