Various Claimants v Entain Plc

When exercising the power to make a filing modification order under CPR PD 51ZH, the court must balance the value of wider document access in promoting open justice against the risk of harm to an effective judicial process and the legitimate interests of others. A substantial and significant overlap with contemporaneous criminal proceedings, coupled with a material risk of prejudicial disclosure, weighs heavily in favour of restricting unrestricted access. The order should be tailored to the risk and may waive filing while requiring a public-access placeholder and preserving a route for non-party applications.

Shareholder claims were brought against Entain Plc under sections 90 and 90A of the Financial Services and Markets Act 2000 concerning alleged historic bribery-related misconduct in Turkey. The Crown Prosecution Service applied for protective measures because related criminal trials involving several persons named in the civil claims were listed before the civil trial.

The central issues were whether the court should modify the filing rights created by CPR PD 51ZH, and whether a reporting restriction order was required to protect the fairness and integrity of the criminal proceedings.

1. Filing modification order. The court made an order under paragraph 13(b) of CPR PD 51ZH waiving the Filing Requirement for Public Domain Documents, while requiring placeholders on the public-access CE-Files.
2. The pilot scheme created a legal right for non-parties to inspect a wider class of documents than those covered generally by CPR 5.4C. The starting point was therefore that such access advanced the open justice principle.
3. That starting point did not remove the court’s discretion to modify the right. Following and adapting the principles in Dring v Cape Intermediate [2020] AC 629, the court had to balance the value of the information in advancing open justice against the risk of harm to the maintenance of an effective judicial process and the legitimate interests of others.
4. Where civil and criminal proceedings substantially and significantly overlap, and disclosure creates a material risk of information prejudicial to the fair conduct of the criminal proceedings entering the public domain, serious consideration must be given to restricting unrestricted access. That risk weighed heavily in favour of a suitably tailored order.
5. The parties to the civil proceedings were not well placed to determine the necessary redactions, while it was not ordinarily the CPS’s role to act as gatekeeper. The appropriate balance was therefore to waive filing, require a placeholder identifying the document and hearing, and draw attention to the right of non-parties to apply under paragraph 19. Any application had to be notified promptly to the CPS and the defendants in the criminal proceedings.
6. Reporting restriction order. An order under section 4(2) of the Contempt of Court Act 1981 was necessary to avoid a substantial risk of prejudice to the administration of justice. The timing was justified because postponement would increase the risk of prejudicial leakage without good reason.
7. The FMO, RRO and listing of the civil trial after the third criminal trial together struck the correct balance between open justice and protection of the criminal proceedings.