Chodiev & Ors v Stein

Under CPR 31.22, the court may restrict or prohibit the use of disclosed documents even after they have been referred to at a public hearing. The power is not limited to applications by the party to whom disclosure was made. It may also arise from the court’s inherent jurisdiction where necessary in the interests of justice.

The starting point is the fundamental principle of open justice. Confidentiality, privacy and generic assertions of possible misuse do not ordinarily justify restricting documents already referred to publicly. Any restriction must be specifically justified and proportionate. Applications should generally be made when the documents are being, or are about to be, referred to in public. A limited restriction was justified for bank details, but not for the documents as a whole.

The claimants had obtained documents from Abacus Ltd in Cyprus under the Norwich Pharmacal principle and relied on them in public proceedings seeking to set aside an earlier judgment in favour of the defendant on the ground of fraud. That claim was dismissed by Burton J, and permission to appeal was refused.

The defendant subsequently applied under CPR 31.22(2) for an order restricting use of the documents outside the proceedings, relying on their confidential character and the continuing Cyprus proceedings. The central issues were whether the court had jurisdiction to make the order, whether the application was affected by the Cyprus proceedings or delay, and whether the principle of open justice was displaced.

1. Jurisdiction. The application was within CPR 31.22. Paragraph (3) permits an application by a party without limiting it to the party to whom the document was disclosed. Alternatively, the court possessed an inherent jurisdiction to restrict use where necessary in the interests of justice.
2. Open justice. The court applied the principle recognised in A v British Broadcasting Corporation [2015] AC 588: justice is ordinarily administered in public, including access to material referred to in open court or read by the judge as part of the decision-making process. Restrictions require justification.
3. Relevant considerations. The guidance in Lilly Icos Ltd v Pfizer Ltd (No.2) [2002] WLR 2253 was applied. The court must consider the document’s role and relevance, possible chilling effects on third parties, specific evidence of damage, and the public interest in avoiding private or partly private trials.
4. The Cyprus proceedings did not determine whether an independent restriction should be imposed by the English court. Nor did the previous failure to seek protection at the summary judgment hearing create a legal bar. However, delay did not strengthen the application. Parties should ordinarily seek protection when documents are being referred to publicly, and stale information generally provides less reason for restriction.
5. Generic confidentiality and privacy arguments were insufficient to displace open justice. The defendant had not justified restricting the documents in their entirety. Bank details and similar information relating to third parties raised a discrete and legitimate confidentiality concern. The application was therefore granted only to that limited extent and otherwise dismissed.

First-instance decision. No prior appellate decision is stated in the judgment.