The Court of Appeal has reaffirmed that in most cases the open justice principle will prevail and that potential damage to reputation will not be sufficient to order that a hearing takes place behind closed doors: Global Torch limited v Apex Global Management Ltd & Others  EWCA Civ 819.
Where a case involves allegations of commercial misconduct but there is no proven abuse of process, risk of disclosure of confidential information which will affect the value of the disputed rights, or risk that publicity will defeat the object of the hearing, an order that a hearing takes place in private will be very difficult to obtain.
The underlying litigation in the Global Torch case concerned two “unfair prejudice” petitions presented by rival factions in relation to the same company. The first petition was presented by Global Torch against Apex and others. Ten days later Apex issued a petition against Global Torch and others including members of the Saudi Arabian royal family. Each petition made “allegations of egregious conduct on the part of the other” and denied the counter allegations. The Global Torch parties applied for an order that the proceedings be heard in private and that restrictions be placed on the media’s access to court documents.
Under CPR 39.2 the general rule is that a hearing is to be in public but a hearing or any part of it may be in private in certain circumstances including if: “(a) publicity would defeat the object of the hearing, or … (g) the court considers this to be necessary, in the interests of justice”. The argument in this case centred mainly around sub-paragraph (g).
As for the applicable legal principles, the paramountcy of open justice was emphasised by the House of Lords in Scott v Scott (1913) AC 417, and since then the common law has remained resolute apart from certain statutory exceptions. That is not the whole story however as there are three rights under the European Convention on Human Rights (ECHR) which are potentially engaged and require reconciliation with the open justice principle and with each other: the Article 6 right to a fair trial, the Article 8 right to respect for private and family life and the Article 10 right to freedom of expression. A judge therefore needs to consider whether there is a sufficient public interest in maintaining the open justice principle to justify curtailment of the competing right, in this case reputational rights under Article 8.
Maurice Kay LJ, giving the judgment of the Court of Appeal, held that the judge had asked himself the right question and came to the correct conclusion, namely that the open justice principle prevailed. He observed that in most cases falling outside the area of recognised exceptional circumstances this will be the outcome and this is so as much at the interim stage in proceedings as at trial. He also observed that as with many civil and most criminal cases, grave allegations had been made and that a person on the receiving end of such allegations is at significant risk of reputational damage. However if the allegations were false,vindication would be obtained through the judicial process and that affords adequate protection in most cases.