Secretary of State for Business and Trade v Alexander David Greensill

This is my extempore judgment. On 7 March 2024, the Secretary of State for Business and Trade commenced proceedings under the Company Directors Disqualification Act 1986 against Mr Alexander Greensill, in connection with his role in Greensill Capital (UK) Limited, Greensill Limited, and Greensill Capital Pty Limited. The collapse of the Greensill companies has attracted a significant amount of press coverage over some time.

The disqualification proceedings were commenced by a Part 8 claim form, as required by the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987. They were supported by the affirmation of Mr William Wilson, a chief investigator in the Insolvent Investigations Directorate of the Insolvency Service, which runs to some 322 pages or 1053 paragraphs, plus some schedules. I am told, though I have not had the opportunity to count them, that the exhibits to Mr Wilson's affirmation run to more than 8,500 pages.

On 3 April 2024, I made an order with the consent of Mr Greensill and the Secretary of State that provided that the affirmation and its exhibits were not to be made available to a non-party to the proceedings unless ordered by the court. If an application was made for a copy of the document, the consent order provided that it was to be on seven days' notice to the parties, giving them the opportunity to make representations, whether in writing or orally, depending on whether the application was to be determined on the papers or at a hearing.

When that consent order was provided to the court in draft, signed by the parties, it was accompanied by a witness statement from Mr Ivan Pearce-Molland, the lawyer with the conduct of the case on behalf of Mr Greensill at Ellerman Limited, dated 20 March 2024. He explained the basis upon which the parties were seeking the order to be made. He acknowledged the significant press interest in the case and said that the order sought to:

“Protect the status quo by ensuring that the Affirmation and exhibits are not provided to any third parties by the Court prior to the affected parties having a fair opportunity to be heard on that issue, and to allow the Court to make any decision on the basis of full information.”

Mr Pearce-Molland explained that he and his client were still analysing the contents of the documents. He highlighted that the documents contained sensitive information against a background of ongoing criminal and civil proceedings, including information provided to the Insolvency Service by several directors of Greensill Capital (UK) Limited and Greensill Limited “under compulsion”.

An application has now been made by the Financial Times to obtain sight of the affirmation under CPR 5.4C(2) or the court's inherent jurisdiction. CPR 5.4C is 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.

(3) A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if –

(a) where there is one defendant, the defendant has filed an acknowledgment of service or a defence;

(b) where there is more than one defendant, either –

(i) all the defendants have filed an acknowledgment of service or a defence;

(ii) at least one defendant has filed an acknowledgment of service or a defence, and the court gives permission;

(c) the claim has been listed for a hearing; or

(d) judgment has been entered in the claim.

(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.

(5) A person wishing to apply for an order under paragraph (4) must file an application notice in accordance with Part 23.

(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.”

Moving to CPR 5.4D, this deals with the procedure to be followed:

“(1) A person wishing to obtain a copy of a document under rule 5.4B or rule 5.4C must pay any prescribed fee and –

(a) if the court's permission is required, file an application notice in accordance with Part 23; or

(b) if permission is not required, file a written request for the document.

(2) An application for an order under rule 5.4C(4) or for permission to obtain a copy of a document under rule 5.4B or rule 5.4C (except an application for permission under rule 5.4C(6)) may be made without notice, but the court may direct notice to be given to any person who would be affected by its decision.”

The upshot of all that is that a statement of case can be provided to a non-party, together with judgments or orders made in public, without the permission of the court providing that one of the conditions in CPR 5.4C(3) is met. Other documents can only be provided if the court gives permission. An application can be made without notice, but the court can direct that notice is to be given to persons who would be affected.

I approved the consent order having taken the view that, in a case such as this, in its early stages, it was inevitable that notice of such an application would need to be given to the parties at the least, in any event. The consent order merely formalised the process for doing that and provided a degree of certainty to the parties.

The Financial Times made its application on 18 April 2024. It seeks disclosure of the affirmation lodged with the claim form stating that, without sight of it, it will be unable to identify why the disqualification order is being sought “undermining substantively its function as public watchdog, and, thereby, undermining the important principle of open justice”. It also sought the disapplication of CPR 32.12(1), which provides

“Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.”

The exceptions are set out in CPR 32.12(2) as follows. Paragraph 1 of CPR 32.12 does not apply to a witness statement if:

“(a) the witness gives consent in writing to some other use of it;

(b) the court gives permission for some other use; or

(c) the witness statement has been put in evidence at a hearing held in public.”

CPR 32.12(3) provides that the rule applies to affidavits and, it follows, affirmations in the same way as it applies to witness statements.

The application is supported by the witness statement of Cynthia O'Murchu, a staff reporter at the Financial Times. She says in that statement that the Financial Times has been reporting on the Greensill matter since early 2021. She explains that she has seen the Part 8 claim form commencing the disqualification proceedings. A claim form is included with the definition of a “statement of case” in CPR 2.3(1) Civil Procedure Rules, which a non-party is entitled to see. The consent order does not provide otherwise. She goes on to explain some of the background that has led to the Financial Times's reporting of matters connected to Mr Greensill's companies.

The application is opposed by Mr Greensill. The Secretary of State, who appears by Ms Carly Sandbach of...