BCC Trade Credit PTY Limited & Ors v The Secretary of State for Business and Trade & Anor

In director-disqualification proceedings, the Secretary of State’s supporting affirmation is a hybrid document. It contains both the evidence relied upon and a quasi-statement of case setting out the allegations of unfitness. The rule 3.3 statement is closely analogous to a statement of case and should ordinarily be available to non-parties once the court is administering justice.

Access to the remainder of the affirmation is discretionary. The court must assess the document’s nature and role, the purpose and likely value of access in advancing open justice, and the risk of harm. There is no rigid threshold or standard formula. Access may be granted before trial where the balance supports it, subject to conditions controlling use and dissemination.

The applicants, insurers involved in substantial Australian litigation concerning Greensill companies, sought copies of two affirmations filed by the Secretary of State in proceedings to disqualify Mr Alexander Greensill under the Company Directors Disqualification Act 1986. They also sought permission to use the affirmations in the Australian proceedings, principally on questions concerning the scope of discovery and alleged fraud.

The Secretary of State was neutral. Mr Greensill opposed wider access, relying on the premature publication of disputed allegations and possible confidentiality concerns. The application required the court to determine how the open justice principle applied to the rule 3.3 statement and to the remainder of the affirmation before final determination of the disqualification claim.

1. Nature of the proceedings. Director-disqualification proceedings are statutory proceedings directed to protecting the public interest and regulating the conduct of directors. They are brought under the Company Directors Disqualification Act 1986 and proceed as modified Part 8 claims under the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987.
2. Nature of the affirmation. Rule 3(3) requires the supporting affidavit or affirmation to state the matters relied upon as demonstrating unfitness. The document has a dual function. It sets out the Secretary of State’s case and contains the evidence gathered during the investigation. It is therefore not, in its entirety, a statement of case, although the rule 3.3 statement is closely analogous to one.
3. Open justice and access. The court has power to permit access to documents filed before trial. The relevant question is discretionary and fact-specific. The court must consider the nature and role of the document, its relevance to the proceedings, the purpose for which access is sought, the extent to which access advances open justice, and the countervailing risk of harm. No freestanding prior hurdle or standard formula applies.
4. Application of the balance. The affirmation was the foundational document setting out the Secretary of State’s considered case. It was ready for deployment at the first hearing and was likely to be used in the disqualification proceedings. The applicants had a legitimate interest in understanding allegations concerning fraud said to affect them and in assessing the document’s relevance to the Australian discovery dispute. The risk of harm to Mr Greensill could be managed by restrictions.
5. Order. The applicants were permitted to obtain and use the affirmations solely for resolving the scope of discovery in Australia. Only reasonably necessary parts could be provided to other parties or placed before the Federal Court, third-party names were generally to be redacted, and the applicants were required to seek appropriate non-publication protection in Australia. Mr Greensill was to be informed within 14 days of the parts on which the applicants proposed to rely.