Lambert Carton-Kelly v Edwards

The statutory confidentiality regime governing information obtained during an investigation does not permanently displace the court’s control over disclosure once the information has been lawfully supplied for use in court proceedings. The court must then exercise its discretion by balancing the purposes and value of open justice against the risk of harm to the judicial process and the legitimate interests of others. Where the original reasons for confidentiality have fallen away, including the completion or abandonment of the relevant investigations and claims, continued restrictions may no longer be justified.

The additional liquidator of CGL Realisations Limited applied to lift confidentiality restrictions imposed on judgments and documents arising from earlier insolvency proceedings. The Insolvency Service opposed publication of two paragraphs of a judgment, contending that they referred to information obtained under the statutory investigation powers in section 447 of the Companies Act 1985 and protected by section 449.

The respondent liquidator did not oppose the application. The issue before the court was whether the statutory regime prevented the court from lifting the restrictions, or whether the matter fell to be determined by the court’s discretion under the principles governing open justice and access to court records.

1. The application was granted. The confidentiality restrictions imposed by the order of 21 June 2018 were no longer to apply in the manner sought by the applicant.
2. The principle of open justice is fundamental to the integrity and accountability of the judicial system. The court should be reluctant to derogate from it, while recognising that confidentiality during an investigation may be essential to preserve the integrity of the investigation and protect prospective proceedings.
3. Sections 447 and 449 of the Companies Act 1985 did not prevent the court from exercising its discretion. Their purpose was to control disclosure by the investigating body. Where information had been supplied by that body for the purposes of a hearing in a competent court, supervision of continuing confidentiality became a matter for the court.
4. The court applied the balancing approach identified in Cape Intermediate Holdings Limited v Dring [2019] UKSC 38. It balanced the purposes of open justice and the potential value of disclosure against the risk of harm to the effective administration of justice and the legitimate interests of others.
5. The original reasons for confidentiality had fallen away. The investigations and most related claims had concluded or been discontinued, the judgment had been disclosed to certain parties under court permission, and continued restrictions impeded litigation funding, the formation of a liquidation committee and the fair conduct of continuing proceedings. The court therefore considered that the time had arrived to lift the restrictions and invited submissions on consequential relief.