Bes Commercial Electricity Limited & Ors. v Cheshire West and Chester Council

Under section 4(2) of the Contempt of Court Act 1981, reporting restrictions may be imposed where publication creates a substantial risk of prejudice to pending or imminent proceedings, the restriction is necessary to remove that risk, and no less restrictive course is satisfactory. The court must balance open justice and freedom of expression against the administration of justice. Where civil and criminal proceedings substantially overlap, the court may postpone reporting of the civil proceedings even if the relevant criminal defendants do not seek restrictions. Material obtained under search-warrant powers is not subject to an absolute bar on use in related civil proceedings. Its use may be permitted where necessary for the fair determination of the civil claim and closely connected with the investigation or prosecution of crime.

The claimants brought civil claims against a local authority arising from an investigation, search warrants and seizure of material. The claims included misfeasance in public office, Convention-rights breaches, trespass and conversion. Related criminal proceedings had been brought against several individuals connected with the claimant companies.

At the commencement of the civil trial, the defendant sought an order under section 4(2) of the Contempt of Court Act 1981 postponing publication of reports of the proceedings. The claimants sought exclusion of material obtained in the criminal investigation, or alternatively a restriction confined to that material. The central issues were whether the civil and criminal proceedings sufficiently overlapped to justify reporting restrictions, whether the criminal-investigation material was relevant and admissible, and whether it could be used consistently with duties of confidence.

1. Reporting restrictions. The application under section 4(2) of the Contempt of Court Act 1981 was granted. Applying the approach in R v Sherwood ex parte The Telegraph Group Plc [2001] 1 W.L.R. 1983, the court found a substantial risk of prejudice to the administration of justice. The overlap between the civil and criminal proceedings extended beyond the criminal-proceedings materials. It included the pleaded and evidential issues concerning the independence of brokers, alleged fraudulent practices, recorded calls, cooperation with regulators and the claimants’ evidence.

2. The risk could not satisfactorily be removed by jury directions, ordinary internet warnings, waiting for the criminal trial, or a restriction limited to the criminal-proceedings materials. There was no safe middle course because the material could not realistically be divided. The postponement of publication was the lesser of the competing evils, notwithstanding the importance of open justice and Article 10 rights. The order was to remain under review, with liberty to apply.

3. Scope of the civil case. The pleadings had to be read as a whole. The defendant’s non-admissions did not prevent it from advancing a positive case where the pleadings, evidence and trial preparation showed that the relevant matters were in issue. The claimants had advanced their case broadly and the defendant was entitled to deploy relevant evidence and arguments to meet it. The criminal-proceedings materials were therefore not excluded.

4. Use of seized documents. Under section 22 of the Police and Criminal Evidence Act 1984, material seized in a criminal investigation may be retained for purposes connected with the investigation and prosecution of crime. The principles in Marcel v Commissioner of Police [1992] (Ch) 225, Preston BC v McGrath [2000] EWCA Civ 151 and Crook v The Chief Constable of Essex Police [2015] EWHC 988 required consideration of confidentiality and competing public interests, but imposed no absolute prohibition.

5. On the facts, the defendant could use the documents to defend the civil proceedings and to protect the related prosecution from possible prejudice. That use was ancillary to, or closely connected with, the investigation and prosecution of crime. The court gave consent if consent was required and made no confidentiality restriction. The claimants’ application to exclude the materials was refused.

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