ABC Ltd v Y
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE LEWISON,Mr Justice Lewison |
| Judgment Date | 06 December 2010 |
| Neutral Citation | [2010] EWHC 3176 (Ch) |
| Date | 06 December 2010 |
| Court | Chancery Division |
[2010] EWHC 3176 (Ch)
Before:The Hon Mr Justice Lewison
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Desmond Browne QC and Jacob Dean (instructed by Hogan Lovells International LLP) for the Applicant
Mark Warby QC and Victoria Shore (instructed by Bird and Bird) for the Claimants
The Defendant in person
Hearing dates: 29 th November 2010
Mr Justice Lewison
Introduction
[Redacted].
[Redacted].
Between November 2006 and June 2008 proceedings were on foot in the Chancery Division. [X] was not a party to those proceedings. They were proceedings between five companies [redacted] and Mr [Y], in which the five companies sought injunctions against Mr [Y] restraining him from disclosing or misusing confidential information. Those proceedings resulted in at least three orders of judges of this Division, including the Chancellor, following hearings in private. During the course of the proceedings on 27 September 2007, at another hearing in private, Master Bowles made an order that, subject to further order, non-parties might not obtain documents on the court file. The proceedings were eventually compromised in June 2008. Under the terms of the compromise Mr [Y] submitted to an injunction in broad terms; and withdrew allegations made against the five companies and/or their directors, officers, members etc and in particular withdrew all allegations of improper conduct made in the High Court proceedings. Part of the compromise was a comprehensive confidentiality agreement. Following the compromise a consent order was made by Chief Master Winegarten on 25 June 2008. A redacted version of that order is in evidence. The order does not state that it was made at a hearing in private; and the body of the order does not direct that the hearing be in private. The order includes an undertaking by Mr [Y] to be bound by a permanent injunction preventing the use or disclosure of confidential information, which is defined in very wide terms. It also included an undertaking by Mr [Y] that he had deleted copies of confidential information from all electronic or reusable media (including mobile phones and handheld computer devices). The order recited that the parties had “agreed to the terms set out in the Schedule hereto (which Schedule is confidential and therefore not to be filed at court)”. The operative part of the order included an order that Master Bowles' order relating to the sealing of the court file be made permanent.
[X] has now applied for permission to have copies of documents on the court file. [Redacted]
The ground of the application, according to the application notice, is that:
“… the documents are required in connection with other related ongoing proceedings [redacted].”
Despite the enormous range of documents mentioned in the application notice and the broad scope of the claims or potential claims mentioned in the grounds for the application, [X] has now severely curtailed his claim. [Redacted]
“[Redacted].”
[Redacted]
Application for court documents
The application is made under CPR 5.4C. The relevant sub-rules are (1), (2), (4) and (6). They provide as follows:
“(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing).
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person
(4) The court may, on the application of a party or of any person identified in a statement of case –
(a) order that a non-party may not obtain a copy of a statement of case under paragraph (1);
(b) restrict the persons or classes of persons who may obtain a copy of a statement of case;
(c) order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court; or
(d) make such other order as it thinks fit.
(6) Where the court makes an order under paragraph (4), a non-party who wishes to obtain a copy of the statement of case or to obtain an unedited copy of the statement of case, may apply on notice to the party or person identified in the statement of case who requested the order, for permission.”
Under these rules the default position is therefore that [X] is entitled to a copy of a statement of case; but not any other document. Thus even if he wanted to see a copy of a witness statement, deployed in the course of a trial held in public, the default position is that he is not entitled to it. He is entitled to a copy of a judgment or order given or made in public, but not to a judgment or order given or made in private. However, the court may restrict access to documents. The court's power under CPR 5.4C (4) on the face of it deals only with statements of case. It does not apply to judgments or orders given or made in public. Mr Warby suggested that the court's power under 5.4C (4) (d) to make “such … order as the court thinks fit” might enable the court to restrict access to other parts of the court file. Whether or not this is so (and I do not think it is), it does not, in my judgment, enable the court to restrict access to judgments or orders given or made in public. Quite apart from anything else anyone who pays the appropriate fee can obtain a transcript of a hearing in public (PD 39A para 6.3) or a transcript of a judgment given in public (PD 39A para 1.11). In addition paragraph 1.11 of PD 39A says in terms that a member of the public may obtain a copy of an order made at a hearing in public if he pays the appropriate fee. The reason why I do not think that the court's power under 5.4C (4) (d) extends to other parts of the file is that it is unnecessary. The default position as regards documents which are neither statements of case nor judgments or orders given or made in public is that a non-party must always obtain the court's permission to have a copy. As I have said, this would include witness statements. Thus a pre-emptive sealing of the whole file serves no useful purpose. CPR 5.4C does not deal expressly with judgments or orders given or made in private. Such a judgment or order is plainly not a document filed by a party. Arguably it is a “communication between the court and a party”. That question might have arisen for decision in this case because of the wide terms of the application notice. But Mr Browne QC, appearing for [X], restricted his application to a much more limited number of documents; so that question can be decided in a case in which it matters.
[X] may also apply under CPR 5.4C (6) for the “unsealing” of a statement of case that has been previously sealed. In the present case Master Bowles' order of 27 September 2007 said that subject to further order “non parties may not obtain copies of documents on the court file”. It does not seem to me that this form of order is appropriate. First, as I have said, I do not see what power is given to the court to order that a non-party may not obtain a judgment or order given or made in public. The power in sub-rule (4) to derogate from the general rule is confined to statements of case. Second, it is unnecessary to provide that non-parties may not obtain copies of other documents on the court file without further order. Under sub-rule (2) an order will always be necessary for a non-party to obtain anything other than a statement of case or a judgment or order made or given in public. If the effect of an order such as Master Bowles made goes further than the rule, it would give the appearance of pre-judging an application by a non-party that has not yet been made.
The documents on the court file of which [X] wishes to have copies are:
i) The full version of the order made by Chief Master Winegarten following the settlement agreement;
ii) Mr [Y's] defence and counterclaim; and
iii) Any witness statement made by Mr Y.
In the course of his oral submissions Mr Browne explained that [X's] main goal in seeking these documents is to discover references to [redacted].
Open justice
Common law
Mr Browne majors on the principle of open justice. It is, I think, necessary to disentangle various strands of the argument. The principle of open justice is deeply embedded in the common law. The most authoritative expression of the principle is the decision of the House of Lords in Scott v Scott [1913] AC 417, where their Lordships held that a suit for the annulment of a marriage on the grounds of the husband's impotence ought to have been held in public. Viscount Haldane LC said (p. 435):
“…the power of an ordinary Court of justice to hear in private cannot rest merely on the discretion of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge.”
As his Lordship said there are exceptions to the broad principle. He gave some examples (p. 437):
“While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions...
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