Cleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON |
| Judgment Date | 29 September 2008 |
| Neutral Citation | [2006] EWHC 1341 (TCC),[2008] EWHC 2220 (TCC),[2005] EWHC 2101 (TCC) |
| Docket Number | Case No: HT-04314 & HT-04238,No HT-04-314,HT-04–238, HT-04–314 HT-04–238 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 29 September 2008 |
[2005] EWHC 2101 (TCC)
His Honour Judge David Wilcox
HT-04–238, HT-04–314
HT-04–314
HT-04–238
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
MR. ANDREW NICOL QC (instructed by Messrs. Finers Stephens Innocent) for the Applicants
MR. PAUL DARLING QC (instructed by Messrs. Clifford Chance) for the Respondents
JUDGE DAVID WILCOX
This is an application by Sarah Curnow and the Australian Broadcasting Corporation for an order permitting them to see and take copies of the particulars of claim, the response, the consolidated defence and counterclaim and the consolidated reply and defence to counterclaim in the claim HT-04-314/HT-04-238 in the Technology and Construction Court, entitled Multiplex Construction UK Limited and Cleveland Bridge UK Limited.
Multiplex Construction UK Limited is a wholly owned subsidiary of Multiplex Limited which is listed on the Australian Stock Exchange. Multiplex Limited is part of the Multiplex Group which has interests all over the world which include property funds, the management of them, property development, facilities and infrastructure management and construction.
One of Multiplex Construction UK Limited's construction projects is the new Wembley Stadium. Cleveland Bridge UK Limited are well known steel fabricators and designers who were employed as subcontractors on the project.
The consolidated actions have been listed for a 42-day hearing commencing on 24th April 2006. Multiplex has filed and served its consolidated particulars of claim, its reply to defence and counterclaim and Cleveland Bridge UK have filed and served defence and counterclaim.
The present proposed timetable is for the factual witnesses to be served and filed by 14th October, that each party have liberty to file statements in reply by 18th November and experts to exchange and file their reports by 12th December. There are clearly a number of complicated factual and legal issues arising in the action requiring extensive factual witness evidence and detailed expert evidence.
I note that it is Multiplex's stated intention to file and serve approximately 20 witness statements and expert evidence from steelwork experts, quantity surveyors, a programmer and structural engineer; doubtless there will be similar expert and factual evidence from Cleveland Bridge.
The pleadings will continue to evolve and the issues be refined up to the time of trial. The present pleadings are the assertions and allegations made by the parties representing their present positions albeit supported by sworn statements of truth and belief. The documents identified by the applicants, of which copies are sought, fall within the provisions of Civil Procedure Rule 5.4.
The claim forms have already been provided, it seems, by the court registry under CPR 5.4(4). The detailed pleadings fall within the description "other documents filed by the parties" within 5.4(5) which provides, in so far as it is relevant:
"Any other person may" and I go to (b): "if the court gives permission, obtain from the records of the court a copy of any other document filed by a party …."
This application was made on notice under CPR 5.4(9). The court directed that Multiplex UK Limited and Cleveland Bridge should be served with the application and any supporting evidence.
An informal application was made by the first applicant on 26th July by e-mail asking for the matter to be dealt with on paper. I instructed my clerk to notify the parties to the action and they were also sent a copy of the relevant e-mail.
Cleveland Bridge UK Limited indicated they had no objection to a paper determination and consented to the application. Multiplex UK, by their solicitors Clifford Chance, indicated that they would seek to resist the application. That led therefore to this hearing and to the directions I gave as to the filing of evidence and written submissions.
Miss Curnow is the producer of a television programme called "Four Corners" which is broadcast by the Australian Broadcasting Corporation. In her first contact with the court she made it clear that she wanted to see the detailed pleadings because she was producing a programme on Multiplex, the group, and Multiplex Limited, including the activities of Multiplex UK Ltd. That in turn would lead to covering the dispute relating to the Wembley project. Her subsequent correspondence with Multiplex (UK) Ltd. and Cleveland Bridge has confirmed this and is further supported in her sworn statement before the court supporting the application. She refers to public interest considerations in support of her application.
In a letter of 18th August 2005 Clifford Chance explained the reasons for resisting the application. I quote from that letter:
"Our client is obliged to observe the rules of the Australian Stock Exchange, in particular chapter 3 concerning continuous disclosure. If our client were to consent to your application, documentation concerning these proceedings could become disclosable by operation to the exception to Rule 3.1 of the ASX Rules which could in turn oblige our clients to comment on any and all market or other rumours concerning these proceedings, whether such rumours emanate from the documents found at Court or otherwise. Our Client does not wish to become involved in litigating these matters in the press, not least because the proceedings are at a relatively early stage and any speculation concerning the outcome of the proceedings would be unhelpful and more likely than not inaccurate.
There are no public interest considerations in circumstances where your programme will not be aired in this jurisdiction. More generally (and to the extent that this is at all relevant), our Client was very surprised by the statements in your fax of 15 August which imply that our Client has not cooperated with your programme".
They went on to make the point that they had given their co-operation.
The letter went on to say:
"The documents relating to the Court proceedings are voluminous and the issues involved are complex, thereby necessitating a lengthy trial next year. Our Client is concerned that, notwithstanding best intentions, it would be extremely difficult for a fair and balanced representation of those proceedings to be given in a short television documentary. The consequences to our Client and its stock price of your programme falling short in this respect could be substantial and irreparable. Our Client would, understandably, prefer for the issues in dispute to be resolved in Court at the appropriate time".
It is evident to me that there has been a great deal of press and media interest about this dispute. The documentation put before me and exhibited to the witness statement of Mr. Panayides on behalf of Multiplex UK Ltd. shows comment and reportage in the trade press such as "Construction News and Contract Journal", "The Daily Telegraph", "The Independent", "The Times", "The Sunday Times", "The Financial Times" and "The Guardian". Extracts from the "Australian Journal", "The West Australian" and "The Sydney Morning Herald" have been exhibited. Such comment ranges from comment in the financial and business sections to mention in the sporting and home pages of those publications. The public in the United Kingdom, Australia and elsewhere is interested in the development of the Wembley project.
The pleadings have been read extensively by me as the allocated trial judge case managing the consolidated actions. I indicated at the outset of this hearing that I had read the pleadings extensively and prior to the specific disclosure applications made and heard before me on 27th May and 16th June 2005 respectively. Extensive reference was made to them.
The hearings for specific disclosure were interlocutory hearings to which the public had access and, in all probability, strangers to the litigation, as they are entitled to, had access. In any event, open justice has long been a fundamental principle of English law and there is a strong presumption that cases should be heard in public and decisions made in public.
It is clear from authority such as Barings plc v Coopers and Lybrand [2001] 1 WLR 2353 and Law Debenture Trust Corp (Channel Islands) Limited v Lexington [2003] All ER 165, that pleadings ought to be treated as though being read in open court, that anyone with a legitimate interest ought to be allowed reasonable access to them in accordance with the principles of open justice.
In Dain AO v Davis Frankel and Mead [2005] 1 All ER 1087, Moore-Bick J said:
"I think that in the case of documents read by the court as part of the decision-making process, the court ought generally to lean in favour of allowing access in accordance with the principle of open justice as currently understood, notwithstanding the view that there may have been the view that may have been taken in the past about the status of hearings in chambers".
Mr. Nicol Q.C., on behalf of the applicants, submits that the applicants have demonstrated clearly a legitimate interest, namely a serious journalistic interest to report on Multiplex, the Wembley project and the dispute with Cleveland Bridge UK. This is a consequence of the primary requirement for open justice, memorably stated in Scott (otherwise Morgan) v Scott [1913] AC 417 and the passage at 477:
"Only in proportion as publicity has...
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