Global Torch Ltd. & Ors v Apex Global Management

This is the oral renewal of an application for permission to appeal against an order of Morgan J made on 13 February 2013 concerning issues of privacy. He heard the application over 19, 20 and 21 December 2012 and he gave a substantial and fully reasoned reserved judgment, reported at [2013] EWHC 223 (Ch).

The applications arise in shareholder prejudice proceedings in relation to a company called Fi Call Limited (I will call it FC). Its principal shareholders are a company called Global Torch Limited, which is incorporated in the British Virgin Islands, and Apex Global Management Limited, which is incorporated in the Seychelles. Apex (as I will refer to it) is owned by Mr Almhairat, who is a Jordanian and is a director of FC. The other director of the company of FC is a Mr Abu-Ayshih. Global Torch presented a petition under section 994 of the Companies Act of 2006 in respect of FC on 2 December 2011, the respondents being Apex, Mr Almhairat, and FC itself of course, seeking orders that the Apex parties (that means Apex itself and Mr Almhairat) buy Global Torch's shares in FC or alternatively a winding up on the just and equitable ground. It was alleged that the relationship between Global Torch and Apex had been destroyed and that this was exacerbated by false allegations of criminal conduct made by Apex about Global Torch and its shareholders.

A few days later, on 12 December 2011, Apex presented its own petition under section 994, with a wider range of respondents: FC the company, of course, Global Torch and Mr Abu-Ayshih, but also two Saudi Arabian princes, Prince Abdulaziz and his father, Prince Mishal (“the Princes”). Prince Abdulaziz is a director and shareholder in Global Torch. Apex says that Prince Abdulaziz uses Global Torch as his corporate vehicle and that he is acting de facto as a chairman of FC and is a de facto or shadow director of FC. Mr Abu-Ayshih is said to be a private adviser to Prince Abdulaziz and a director and shareholder in Global Torch. Prince Mishal, the father of Prince Abdulaziz, is said to be the subject of various allegations by the Apex parties as to his involvement in the matters said to be relevant to the subject matter of the petition.

Morgan J referred to six allegations in Apex's petition in the course of his judgment, of which he described three in extremely succinct and unrevealing terms, about which he said a bit more in a confidential schedule, together with some details of two more allegations which had arisen since the presentation of the petition.

There are disputes as to jurisdiction on the Apex petition on the part of the Princes and of Mr Abu-Ayshih. The Princes also claim that there is no jurisdiction against them on grounds of sovereign immunity. The issue as to sovereign immunity has in the meantime been heard and decided adversely to the Princes by Vos J on 19 March 2013, but he granted permission to appeal and so that is the subject of an appeal to this court.

The jurisdiction issue is due for hearing in the Chancery Division in the latter part of May 2013. The petitions, which on the face of it will survive whatever the outcome of the immunity appeal and the jurisdiction applications and any appeal, because it is not suggested that the petitions are not properly served as regards some parties, are due for hearing in the Chancery Division starting in January 2014.

The present applications concern applications by the Princes for orders, under Rule 39.2(3),that the hearing of the various applications be in private except for pure issues of law in relation to sovereign immunity and also that access to documents on the court file be restricted under CPR Rule 5.4C. Similar issues also arose before the judge and would arise on these appeals on applications on the part of the Guardian and the Financial Times for access to court documents under that same rule.

Morgan J rejected the applications by the Princes but granted interim protection so that the position should not be prejudiced pending a possible appeal; hence the fact that the confidential schedule remains confidential and there are orders in place restricting access to documents on the court file. The matters were considered by Lewison LJ on the papers, who refused permission to appeal; hence this oral renewal.

I have had the benefit of a skeleton argument for the Princes, which was of course before Lewison LJ, and an advocate's statement under Practice Direction 52C, paragraph 16, which is new. I have had some submissions on behalf of the Apex parties put in on the Jolly v Jay basis, which were I think before Lewison LJ, and I have had the benefit of clear and succinct submissions from Mr Warby QC on behalf of the Princes. Mr Daniel Lightman is in attendance on behalf of the Apex parties, but I have not allowed him to address me.

Morgan J identified the applications in relation to which the privacy orders are sought in his judgment at paragraphs 18 and 19 and I do not need to go over that, but I think it is important to bear in mind the scope of the protection that is sought and the basis of that application.

Mr Warby points out that, depending slightly on the order of events, but supposing that the appeal on sovereign immunity is determined first before the jurisdiction applications are heard, which is certainly the desire of at any rate the Princes, that is going to impose a rather tight constraint on the court timetable. If the immunity appeal proceeds in the next month and if that were to be successful, then the Princes would cease to be parties to the proceedings and, if that were so, then that would affect the question of whether the allegations concerning them are perhaps even at all material and certainly would affect a judgment as to whether it was appropriate that those should be ventilated in public or rather behind closed doors and subject to secrecy and confidentiality provisions.

Supposing that Vos J's order as to immunity were upheld, the next stage is the jurisdiction hearing. The jurisdiction hearing would, as Mr Warby puts it, not of course involve a trial of any allegations on their merits, but it would involve a close examination of the allegations in order to assess whether the requirements as to service under the jurisdiction are properly satisfied. What he therefore seeks is protection which is for the time being at any rate interim: preventing the relevant allegations being ventilated in public; preventing access to the relevant documents on the court file pending and over until the determination of: a) the appeal against Vos J's position on the sovereign immunity point; and b) the jurisdiction application in the Chancery Division and presumably, depending on how that goes, any appeal from the decision on that application.

As is clear from Morgan J's judgment, the basis of the application is that the allegations are not only false and scandalous but that they are malicious and that they are raised on a blackmailing basis, being designed, by way of extortion and abuse of the process of the court, in order to deter the Princes from pursuing their proceedings (when I say “their proceedings” I mean the Global Torch proceedings) and their resistance to the Apex petition to a trial which in principle they are entitled to, a trial complying with the requirements of Article 6. It is said that these are highly damaging allegations which are advanced in order that the Princes should be put off resisting the case, because it is said to be intended that they should not be able to face the prospect of an open public trial of what are said on their part to be blackmailing allegations.

Mr Warby submits, with some justification, that issues concerning the conflict between the principle of open justice, well established in the common law and enshrined in Article 6 (on the one hand) and the requirements of privacy (on the other hand) are occurring in the courts with some considerable frequency. He was able to show me a number of cases, at first instance, in the Court of Appeal and at the highest appellate level, in which these matters have been considered in the past years and several recently. There is also the practice guidance issued by the Master of the Rolls in 2012 on what were referred to as “super-injunctions”, which is relevant but, as he submits, is not a complete answer.

Mr Warby submits that the judgment of Morgan J enshrines or is based on the principle that the rule in favour of open justice is not necessarily quite a trump card, but it is likely to prevail even in a situation in which, although the judge accepted for the purposes of the application before him that the Princes’ concern for their reputation was something which in principle and on the facts engaged Article 8, is something which was not going to prevail over the principle of open justice. He also submitted that the case is strong on its facts, the allegations being of such a serious nature that, if this is not a case in which concern for reputation engaged by Article 8 can prevail (even on an interim basis) so as to secure some appropriate protection under CPR 39.2 (when construed properly in order to give effect to the court's obligations under the Human Rights Act), then it is difficult to imagine a case in which that might be the case and in which such an attempt might succeed. He submits, further, that it is important (as the judge may possibly not have taken on board or certainly did not articulate) that what he is seeking is protection which is for the time being interim, although of course it may be that depending on the outcome of the further interlocutory applications, that outcome will transform the position in such a way that the allegations are no longer relevant or that there is no good case at all for allowing them to be ventilated in public.

He does, I think, make a fair point that at paragraph 86 of the judge's judgment the judge appeared to set a rather high test for the applicants, which in practice they would be unable to meet at this stage, but as to which in the context of the jurisdiction applications, if it gets to that, the merits of the relevant allegations or their lack of merits can be examined much more fully. That would be a stage at which the court could and should and would take an informed view as to the merits, whereas for the time being, he says, he has a reasonable prospect of showing at that later stage that the allegations are false, malicious and designed to extort and therefore an abuse of the process and that interim protection should be allowed in the meantime.

The judge, in his judgment, applied rules CPR 39.2(3)(a) and (g), which are the two specific rules referred to. He found nothing much in (a) that was of assistance. Paragraph (g) by itself may or may not be of assistance, but what is I think the case, and I do not think that he failed to recognise this, is that the context of (g) is very much informed by the relevant provisions of the European Convention on Human Rights and above all the balancing of the conflicting requirements of Article 6, 8 and 10.

In relation to the potential conflict and the need to balance the position between those Articles, Mr Warby referred me to paragraph 52 of the Supreme Court's judgment in Re Guardian News and Media [2010] 2 AC 697, a passage which the judge did not mention in his judgment but which, as is apparent from the skeleton below, was specifically advanced before the judge as demonstrating what the right test is. Mr Warby submits that the right test is taken from that paragraph, with a consequential adaptation to the circumstances of this case, in which of course there can be no question of anonymity because the whole debate about sovereign immunity depends on knowing who the Princes are and what their status is, but Guardian News and Media was a case about anonymity. This is not a case about anonymity. If you cannot achieve anonymity, the converse, the alternative means of protection, is to prevent the ventilation of the subject matter of the allegations. As I say, Mr Warby submitted that the right test adapted from what was said in Guardian News and Media is whether there is sufficient general public interest in reporting of the proceedings including an account of the nature and substance of the allegations as to justify the resulting curtailment of the rights of the individual appellant and the rights of their families to respect for their private life. That is not a question that the judge asked himself. He did refer to, indeed he quoted at length an earlier passage from, Re Guardian News and Media from the judgment of Lord Rodger, but he did not pose himself the question, adapted from paragraph 52, in that or any equivalent form.

Mr Warby therefore submits that that is an error of law, a misdirection, and that, taken with the judge's wrong application of what was in effect a summary judgment test at this stage rather than an interim protection test as it should have been, he argues that the judge did misdirect himself in law and that there are therefore good arguable grounds for appeal. He would say, even if there were not, that there is a compelling reason to allow the appeal to proceed because of the importance of the point.

I have been troubled by this case. I have read various substantial documentation and I have read carefully into it, although I would say in terms that I have not looked beyond the terms of the confidential schedule into the nature or details of the allegations. I am conscious that in the timetable of the proceedings that I have mentioned it will be quite a demand on the parties and the court to squeeze in yet another appeal to this court, but that is not a factor that ought to weigh against the grant of permission if reasonable grounds of appeal have been shown or a compelling reason for the appeal to proceed has been shown. In my judgment, on balance Mr Warby's submissions are justified and I therefore propose to grant permission to appeal to the appellants against Morgan J's decision. The grounds of appeal are set out over some 14 paragraphs. I think it is fair to say that some of them are more cogent than others, but it does not seem to me that it will be useful to distinguish between those grounds and to grant permission on some and to refuse it on others.

For those reasons I will grant permission to appeal. It is clearly necessary that the appeal should proceed on an expedited basis and I will hear submissions both from Mr Warby and, if he wishes, from Mr Lightman as to that and as also to the interaction between this appeal and the appeal from Vos J.