Secretary of State for Business and Trade v Alexander David Greensill

The open justice principle may require disclosure to a non-party of the allegations determining unfitness in company directors disqualification proceedings, even before the substantive evidence has been used in open court. Those allegations perform a function analogous to a statement of case because they identify the issues that the court will be required to determine. The underlying affirmation remains evidence, however, and there is no general entitlement to obtain it in advance of the hearing. The court must balance the public interest in understanding and scrutinising the proceedings against the parties’ interests in preparing their case, protecting untested allegations and avoiding premature publication of material that may not be relied upon.

The Secretary of State commenced director disqualification proceedings against Alexander Greensill under the Company Directors Disqualification Act 1986. The Secretary of State filed a lengthy affirmation and exhibits in support of the claim. A consent order restricted provision of those materials to non-parties without notice to the parties.

The Financial Times applied under CPR 5.4C(2) and the court’s inherent jurisdiction for access to the affirmation, arguing that it was analogous to a statement of case and that disclosure was required by open justice. Mr Greensill opposed the application; the Secretary of State was neutral. The central issue was whether the affirmation, or part of it, should be disclosed before the substantive proceedings had reached a hearing.

1. Application granted in part. The Financial Times was entitled to provision of the statement of matters determining unfitness contained in the Secretary of State’s affirmation. The application for the whole affirmation was refused at that stage.
2. The open justice principle is fundamental. It enables public scrutiny of judicial decision-making and public understanding of the issues and evidence in proceedings. In modern civil litigation, that may require access to written material on which the court is asked to base its decision: Dring v Cape Intermediate Holdings Ltd and Chan U Seek v Alvis Vehicles Ltd.
3. An affirmation supporting disqualification proceedings is evidence filed with the claim form, not a statement of case within CPR 2.3(1). CPR 32.12 also supports that distinction. The affirmation nevertheless has a dual function. The statement required by rule 3(3) of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 sets out the specific allegations of unfitness and is in the nature of a charge sheet. It is therefore analogous to a statement of case for the purposes of access by non-parties once the claim is opposed and judicial determination is anticipated.
4. The remainder of the affirmation was not ordered to be disclosed. It had not been relied upon in open court, and parts might be challenged, amended or not relied upon. The interests of the parties in preparing for trial and avoiding premature publication of untested and potentially damaging allegations outweighed the immediate case for disclosure. The concerns identified in Blue v Ashley and R (Yar) v Secretary of State for Defence had reduced force because the Secretary of State’s evidence was prepared for the case as a whole and subject to an obligation to present the case fairly and properly, but they remained relevant.
5. The consent order was not an improper derogation from open justice. It formalised notice of an application for access and did not determine its outcome. Mr Greensill was given a reasonable opportunity to object to individual parts of the rule 3(3) statement; redaction would require a clear and serious reason.

First-instance decision. The judgment does not state any prior appellate history.