Global Torch Ltd v Apex Global Management Ltd

This judgment concerns certain applications which have been made in two unfair prejudice petitions in the Companies Court. I will describe the applications in more detail in due course but, in brief summary, the purpose of the applications is to obtain orders from the court which will result in certain disputed allegations of fact, which are made in the two petitions, being dealt with by the court sitting in private and, furthermore, orders that non-parties to the petitions, and in particular representatives of the media, may not obtain a copy of court documents in this case.

Fi Call Ltd (“the Company”) was incorporated on 23^rd October 2009 under the Companies Act 2006 (“the 2006 Act”), as a private company limited by shares. The principal shareholders in the Company at the time of its incorporation, and since, have been Global Torch Ltd (“Global Torch”) and Apex Global Management Ltd (“Apex”). Global Torch was incorporated in the British Virgin Islands. Apex was incorporated in the Seychelles and is wholly owned by a Jordanian businessman, Mr Almhairat, who at all material times has also been a director of the Company. At all material times, the other de jure director of the Company has been Mr Abu-Ayshih.

On 2^nd December 2011, Global Torch presented a petition to the Companies Court in relation to the Company, pursuant to section 994 of the 2006 Act. The Respondents to the petition were Apex, Mr Almhairat and the Company. Apex and Mr Almhairat will be referred to as “the Apex parties”. It is Global Torch’s case that the affairs of the Company were being conducted in a manner that was unfairly prejudicial to the interests of Global Torch. The principal relief sought was an order that Global Torch’s shares be bought by the Apex parties, or one of them. Further and in the alternative, Global Torch sought an order winding up the Company on the just and equitable ground. In very brief summary, Global Torch alleged that Mr Almhairat in particular had misappropriated funds from the Company, had misconducted the Company’s business in various ways, had failed to keep proper books and records, had failed to supply books and records to Global Torch and had blocked the holding of board meetings to discuss and to try to resolve matters. In particular, Global Torch pleaded that the relationship between it and Apex had been destroyed by the conduct of the Apex parties. It was pleaded that the destruction of the relationship had been exacerbated by false allegations of criminal conduct which the Apex parties had made about Global Torch and its shareholders; the allegations were said to be that Global Torch and its shareholders had used the Company for criminal purposes. It was also said that the Apex parties had threatened to publish these allegations to third parties.

Global Torch was given permission to serve the petition on the Apex parties out of the jurisdiction. The Apex parties have been duly served and do not dispute jurisdiction.

On 12^th December 2011, that is 10 days after presentation of the Global Torch petition, Apex presented its own petition in relation to the Company, pursuant to section 994 of the 2006 Act. The Respondents to the Apex petition were the Company, Global Torch, HRH Prince Abdulaziz bin Mishal bin Abdulaziz Al Saud (“Prince Abdulaziz”), Mr Abu-Ayshih and HRH Prince Mishal bin Abdulaziz Al Saud (“Prince Mishal”). Global Torch, Prince Abdulaziz, Prince Mishal and Mr Abu-Ayshih will be referred to as “the Applicants”. Prince Abdulaziz is a director of and a shareholder in Global Torch. The Apex parties say that Global Torch is a corporate vehicle of Prince Abdulaziz. Prince Abdulaziz has also acted as Chairman of the Board of the Company notwithstanding that he is not a de jure director of the Company. The Apex parties say that Prince Abdulaziz has acted as a de facto and/or shadow director of the Company. Mr Abu-Ayshih is a private adviser to Prince Abdulaziz and is a director of and a shareholder in Global Torch, and a de jure director of the Company. Prince Mishal is the father of Prince Abdulaziz and the Apex parties make a number of allegations as to his involvement in matters said to be relevant to the Apex petition. The principal relief sought by the Apex petition is an order that one or more of the Applicants purchase Apex’s shares in the Company.

In its petition, Apex alleges that the Applicants have caused the affairs of the Company to be conducted in a way which is unfairly prejudicial to the interests of Apex. It is said that Apex has lost trust and confidence in the willingness of the Applicants to manage the Company in a fair and proper manner. The pleaded allegations against the Applicants are:

When referring to the allegations in sub-paragraphs (2), (3) and (4) of paragraph 6 above, I have deliberately referred to matters in a very succinct and unrevealing way. That is because it is the Applicants’ case that these three allegations should not be given a public airing and the applications which they bring are designed to prevent that happening. If I decide that these three allegations are not to be given a public airing, it would plainly be wrong for me in this judgment, which I intend to be available to the public, to refer to these allegations. Furthermore, even if I decide that these three allegations may be considered at court hearings heard in public, there may be an appeal to the Court of Appeal against my decision and I ought not to refer to the three allegations in more detail in this judgment, pending any such appeal. I will however set out these three allegations (and indeed two further allegations to which I will later refer) in a confidential schedule. At the end of this judgment, I will describe what use may be made of that confidential schedule, and in what circumstances.

Apex was given permission, ex parte, to serve its petition on the Applicants out of the jurisdiction and they have been duly served. Global Torch does not dispute jurisdiction in relation to the Apex petition. Prince Abdulaziz and Prince Mishal have applied for an order that the court had no jurisdiction against either of them on the grounds that each of them had state, sovereign and/or diplomatic immunity or privilege from the jurisdiction of the Courts of the United Kingdom and, in the alternative, that the court had no jurisdiction and/or should not exercise jurisdiction as against either of them. They asked for orders discharging the grant of permission to serve them out of the jurisdiction and determining that the Apex Petition and its service was of no effect as against either of them. A little later, Mr Abu-Ayshih applied for an order that the court had no jurisdiction against him and/or should not exercise jurisdiction as against him. He too asked for orders discharging the grant of permission to serve out of the jurisdiction and determining that the Apex Petition and its service was of no effect as against him.

On 12^th July 2012, the Apex parties served Points of Defence in response to the Global Torch Petition. That pleading also included a Counterclaim and Additional Claims. The Respondents to the Counterclaim and the Additional Claims were Global Torch, Prince Abdulaziz, Mr Abu-Ayshih and another person. The Points of Defence to the Global Torch petition denied the allegations against the Apex parties. The Points of Defence also pleaded, in greater detail than in the Apex petition, the six allegations which I have summarised in paragraph 6 above. By the Counterclaim and Additional Claims, the Apex parties claimed monies from the Company and Prince Abdulaziz in relation to the sales of Apex shares in the Company where Apex did not receive the proceeds of such sales. It was further pleaded that Global Torch, Prince Abdulaziz and Mr Abu-Ayshih conspired to use unlawful means to cause loss to the Apex parties.

On 12^th September 2012, Global Torch served Points of Reply in the Global Torch petition. Global Torch pleaded to some, but not all, of the matters raised by the Apex parties in their Points of Defence. In particular, Global Torch pleaded to the allegations made in relation to the Beirut transaction and the Nairobi transaction. Global Torch did not plead to the Counterclaim and the Additional Claims. It declined to submit to the jurisdiction of the court in relation to the Counterclaim and the Additional Claims.

In the Apex petition, Global Torch served Points of Defence on 12^th July 2012 and dealt with all of the allegations made in the Apex petition. On 7^th September 2012, Apex served Points of Reply in the Apex petition.

There are currently pending before the court applications which will require the court to decide issues as to the immunity claimed by Prince Abdulaziz and Prince Mishal and issues raised by the two Princes and Mr Abu-Ayshih as to service of the Apex petition out of the jurisdiction. There are also applications seeking various procedural directions. The parties have served substantial evidence in relation to these matters and in relation to the applications for most of the issues in this case to be heard in private.

When some of the applications in this litigation came on for hearing before me, the Applicants applied for an adjournment to enable them to deal with certain evidence that had been served by the Apex parties. I declined to grant an adjournment but instead I directed that I would hear argument on the applications which are now the subject of this judgment. The expected length of the hearing to deal with those applications would use up the time set aside for the hearing before me and, perforce, the hearing of the other applications would have to be re-fixed and that would in practice give the Applicants the time they said they wanted to answer the evidence from the Apex parties.

I was asked to conduct a hearing in private in relation to the application for an adjournment and the applications which I later considered. I sat in private in relation to a part only of the hearing before me. It transpired that it was possible to hold the greater part of the hearing in public without running any risk of giving publicity to matters which the Applicnats submitted to me should not be dealt with at a public hearing.

The hearing before me was attended by counsel (Mr Vassall-Adams) for Guardian News and Media Ltd (“the Guardian”) and The Financial Times Ltd (“the FT”) who had applications of their own under CPR rule 5.4C. Mr Vassall-Adams and those instructing him had been given access to certain documents in this case in return for agreed undertakings as to the use which could be made of those documents pending my decision.

I will now describe in more detail the applications which are dealt with in this judgment.

CPR rule 39.2 identifies certain circumstances in which the court may direct that a hearing or a part of it should be in private. There are applications in both the Global Torch petition and the Apex petition for directions to be given under rule 39.2.

In the Global Torch petition, Global Torch seeks an order pursuant to CPR rule 39.2(3)(a) and/or (g) that the hearings of certain applications in the Global Torch petition be in private, save insofar as pure issues of law in relation to questions of sovereign, state and/or diplomatic immunity are raised and so that those issues of law may be heard in public. The applications which are sought to be the subject of a private hearing are: (1) Global Torch’s application for a declaration that the Counterclaim and Additional Claims in the Global Torch petition had not been validly brought; and (2) the applications of the Apex parties for orders that: (a) Global Torch give particulars of the allegations of fraud, dishonesty, unlawful conduct and commercial impropriety against Mr Almhairat; (b) the two petitions be tried together; and (c) there be preliminary issues in the two petitions.

In the Apex petition, the Applicants seek an order pursuant to CPR rule 39.2(3)(a) and/or (g) that the hearings of certain applications in the Apex petition be in private, save insofar as pure issues of law in relation to questions of sovereign, state and/or diplomatic immunity are raised and so that those issues of law may be heard in public. The applications which are sought to be the subject of a private hearing are: (1) the applications by Prince Abdulaziz and Prince Mishal for a determination that each of them has sovereign, state and diplomatic immunity and/or a determination that the court has no jurisdiction in relation to them in particular because the case against each of them has no reasonable prospect of success; (2) the application by Mr Abu-Ayshih for a determination in relation to him that the court has no jurisdiction in particular because the case against him has no reasonable prospect of success; and (3) the applications of the Apex parties for orders that: (a) Global Torch give particulars of the allegations of fraud, dishonesty, unlawful conduct and commercial impropriety against Mr Almhairat; (b) the two petitions be tried together; and (c) there be preliminary issues in the two petitions.

In the Global Torch petition, Global Torch, and in the Apex petition, the Applicants, seek an order under CPR rule 5.4C(4)(a) or (c) that a non-party may not obtain a copy of a statement of case in those petitions under CPR rule 5.4C(1), alternatively may only obtain a copy edited in accordance with the directions of the court.

The Guardian and the FT have separately applied pursuant to CPR rule 5.4C(2) for access to the following documents in the proceedings pursuant to the Apex petition:

The applications for orders under CPR rule 39.2 and rule 5.4C(4) were supported by the ninth witness statement of Mr Roxborough, the solicitor acting for the Applicants. Mr Roxborough stated that he made his statement on the basis of knowledge obtained by him by reason of his role representing Prince Abdulaziz and Prince Mishal or on the basis of facts and matters provided to him by Mr Abu-Ayshih and a Ms Carla Santos who is a legal adviser to Global Torch. Mr Roxborough did not state that he had ever spoken to Prince Abdulaziz or Prince Mishal or taken direct instructions from either of them.

In his statement, Mr Roxborough stated that publicity concerning the allegations against Global Torch and against Prince Abdulaziz and Prince Mishal would affect Global Torch. The effect was said to be both direct and indirect. The direct effect related to the likely impact on the reputation of Global Torch. The indirect effect was due to the pressure which the allegations would place on Prince Abdulaziz and Mr Abu-Ayshih which could result in a decision by Global Torch to settle the proceedings against its best financial interests.

Mr Roxborough then referred to three allegations against one or more of the Applicants. These allegations were those set out in sub-paragraphs (2), (3) and (4) of paragraph 6 above. The Applicants denied the allegations which were said to be scandalous and outrageous. The allegations were made in order to put pressure on the Applicants “through the fear of publicity”. It was also said that these three allegations had been made to cause reputational damage, embarrassment and distress to the Applicants. It was further submitted that these allegations had no relevance to an unfair prejudice petition. Mr Roxborough’s statement then put forward various matters designed to show that the allegations were false.

Mr Roxborough’s statement next dealt with various matters based on information provided to him by Mr Abu-Ayshih but, seemingly, not directly by Prince Abdulaziz or Prince Mishal. Mr Roxborough stressed the fact that both Princes were part of the Royal Family of Saudi Arabia and he gave details of their particular activities as such. He stressed the importance to them of their reputation. He submitted that hearings, when the allegations would be aired, should be in private to protect the reputations of “the individuals involved”; this phrase included Mr Abu-Ayshih. He expressed concern that if the court considered the claim to immunity put forward by the two Princes and found in their favour then it would not be necessary to deal with their objections to the jurisdiction of the court based on their contention that the claims against the two Princes had no reasonable prospect of success. If that were to happen then the court would not rule on the merits of the allegations but yet, at a public hearing, the allegations would be aired and the media could report them in circumstances where the two Princes would not be able to vindicate their reputation. The media reports would be likely to be protected by privilege from a claim in defamation.

Mr Roxborough then submitted that even if the two Princes did not establish their claims to immunity and the court dealt with the question of jurisdiction, the court might reach the conclusion that the allegations had no part to play in an unfair prejudice petition and the claims based on the allegations might not be allowed to proceed yet the court would not decide the merits of the allegations and the reputation of the two Princes would not be vindicated. It was also submitted that the allegations would affect the reputation of the ruling family of the Kingdom of Saudi Arabia and of other individuals in the ruling family, both in Saudi Arabia and abroad. Mr Roxborough also referred to difficulties created by the allegations in relation to the continued provision of certain corporate services to Global Torch. There were then references to the reputations of all three individuals, therefore including Mr Abu-Ayshih.

Mr Roxborough then complained that the Apex parties appeared to be targeting Prince Mishal who was 86 years old and said to be frail and in poor health. Mr Roxborough’s informant for this statement was Mr Abu-Ayshih although he also exhibited certain documents available on the internet which referred to Prince Mishal’s state of health in the past. It was submitted that the allegations were likely to cause distress to Prince Mishal and that could cause him serious health issues.

As to Prince Abdulaziz and Mr Abu-Ayshih, it was said that publicity for the allegation in relation to the Beirut transaction would result in a serious threat to their personal safety. They were said to be at risk of serious personal injury or death from reprisals from citizens of Saudi Arabia or certain organisations.

Mr Roxborough then submitted that publicity for the allegations would harm relations between nations. He submitted that the two Princes would be associated with the Kingdom of Saudi Arabia and the allegations would lead to an adverse effect on relations between the United States of America and Saudi Arabia. Further, Saudi Arabia would regard the United Kingdom with suspicion in so far as the courts of the United Kingdom had permitted these allegations to be made public in court proceedings.

Finally, Mr Roxborough submitted that Mr Almhairat had sought to give publicity to the allegations made by the Apex parties and it was to be inferred that his purpose was to put pressure on the Applicants to buy the shares of the Apex parties in Global Torch. Mr Roxborough refered to various statements that Mr Almhairat had made or allegedly made. It was also pointed out that the Guardian and the FT attended a directions hearing in the two petitions on 28^th March 2012 and that they would not have become aware of the existence of these proceedings and that hearing unless someone (it is suggested someone on behalf of the Apex parties) had tipped them off.

The Applicants also relied on a witness statement of Mr Sabha who referred to a threat allegedly made by Mr Almhairat to sell Apex’s shareholding in the Company to an Israeli purchaser so that he could then give publicity to the fact that Prince Abdulaziz was running the Company with an Israeli investor. Mr Sabha also referred to information as to Mr Almhairat’s intentions to give publicity to the allegations.

Mr Almhairat has served a witness statement which dealt, amongst other things, with Mr Roxborough’s ninth witness statement. In his witness statement, Mr Almhairat made allegations about the circumstances in which evidence has been obtained by the Applicants. He also suggested that there was Interpol or other police interest in two individuals who were either participants or potential witnesses in these proceedings. Mr Almhairat made a large number of points in the course of this witness statement. He stated that the Global Torch petition came first, before the Apex petition. He stated that he had not invited publicity to put pressure on the Applicants. He pointed out that the Applicants have made serious allegations of wrongdoing by him. He submitted that his conduct in the course of these proceedings showed that he was not courting publicity for his allegations. He denied various allegations made against him in Mr Roxborough’s ninth witness statement. He suggested that the allegation about the Beirut transaction would not affect relations between Saudi Arabia and the United States of America, not least because the allegations would not add anything new to the information which the United States of America already had about Saudi Arabia.

On the first day of the hearing before me, the Applicants served further evidence in reply to the evidence served by the Apex parties. Mr Roxborough dealt with two allegations which had been made by Mr Almhairat in his witness statement, namely, his allegations about the circumstances in which evidence has been obtained by the Applicants and the suggestion that there was Interpol or other police interest in two individuals. At the hearing before me these two allegations were added to the three allegations already identified in sub-paragraphs (2), (3) and (4) of paragraph 6 above as particularly objectionable allegations which should not be aired at a public hearing. I will set out these two further allegations in the confidential schedule to which I earlier referred. There were also witness statements from Mr Sabha, Ms Santos and Mr Hammad who responded to parts of the witness statement of Mr Almhairat, in particular, the parts dealing with the circumstances in which the Applicants had obtained evidence and the suggested Interpol or other police interest in two individuals.

At the hearing before me, the Applicants submitted that there were five allegations in particular which should not be aired in open court. These were the three allegations which I identified at paragraph 6(2), (3) and (4) above and the two I referred to in paragraph 33 above. In this judgment, I will only refer to these five allegations in general terms. The allegations are made in much greater detail in the pleadings and are discussed in great detail in the evidence which has been served.

The Applicants’ case was principally argued by Mr Warby QC. In support, Mr Otty QC made submissions on the facts and the procedural history. Mr Warby submitted that the allegations (in particular the three allegations the subject of Mr Roxborough’s ninth witness statement) were scandalous and outrageous and had no relevance to the subject of the unfair prejudice petitions. Not only were those allegations wholly false but they were put forward to put pressure on the Applicants to settle the litigation. He accepted the principle of open justice but submitted that there were exceptions to that principle. One such exception was expressed by Lord Loreburn in Scott v Scott [1913] AC 417 at 446 where he referred to the administration of justice being rendered impracticable by a public hearing in a case where a party who was entitled to justice would be reasonably deterred from seeking justice from the court. He accepted the relevance of the decision in Harb v King Fahd Bin Abdul Aziz [2005] 2 FLR 1108 and indeed that decision appeared to be the reason why the Applicants accepted that the legal issues as to the claimed immunity of the two Princes could be dealt with at a hearing in public.

Mr Warby pointed out that the right to a public hearing guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) was subject to qualifications which applied where the protection of the private life of a party so required or where publicity would prejudice the interests of justice. He submitted that reputation was a Convention right protected by Article 8 of the Convention. For the purposes of Article 8, the court had to ask whether there was a sufficient general public interest in publishing a report of proceedings identifying a party which justified any resulting curtailment of his right and his family’s right to respect for their private and family life. Given the Applicants’ case that the allegations were wholly untrue, before the court ruled on that matter, the court should at the interim stage protect the Applicants’ reputation by sitting in private to consider the allegations. It was accepted that the Applicants had to show that they had an arguable case that the claim of the Apex parties had no reasonable prospect of success but it was submitted that they could satisfy that requirement. It was further submitted that the case of the Apex parties involved extortion and there was a strong public interest in protecting the victims of extortion.

Mr Otty submitted that the Applicants had a properly arguable case on the facts that the Apex parties would not satisfy the merits test for service out of the jurisdiction. He also submitted that they had a properly arguable case on the facts that the conduct of the Apex parties was an abuse of the process of the court.

Mr Howe QC presented the submissions on behalf of the Apex parties. He took me in detail to the authorities on the principle of open justice and the importance of that principle. He submitted that even if a particular case came within CPR rule 39.2, the court would not direct that a hearing should be in private unless that was strictly necessary. If it were necessary to derogate in some way from the principle of open justice, any derogation should be the bare minimum to meet the needs of a particular case. In this case, Mr Almhairat was an individual who had found himself in a large commercial dispute concerning an English company with some very rich and powerful men. Global Torch initiated the proceedings and chose to make very serious allegations against Mr Almhairat. He had responded with equally serious allegations. The allegations in this case should be dealt with in the normal way, that is, in public. If either party has made unfounded allegations, the innocent party will receive vindication in the form of a public judgment to that effect.

The submissions on behalf of the Apex parties then dealt with the matters put forward in Mr Roxborough’s ninth witness statement. It was pointed out that Mr Roxborough’s statement was not said to be based on any direct contact with Prince Abdulaziz or Prince Mishal. Mr Roxborough’s denials of the allegations against the two Princes should be seen against that background as bald, sweeping and unsupported denials. Mr Roxborough’s evidence did not come near to being the clear and cogent evidence which was required to justify a need to derogate from the open justice principle.

The submissions for the Guardian and the FT were presented by Mr Vassall-Adams. He addressed me in detail on the authorities dealing with the principle of open justice. He submitted that the Applicants had no reasonable expectation of privacy in relation to the matters in dispute in this litigation and Article 8 of the Convention was not engaged. If Article 8 was engaged then so was Article 10 and the court had to carry out a balancing exercise. The common law principle of open justice had proved to be resilient to attempts to weaken it, including attempts relying on Article 8. The Applicants were wrong to suggest that the derogation which they sought from the principle of open justice was “relatively limited”. In fact, the derogation sought was a severe interference with that principle. The derogation sought was more extensive than the derogation involved in reporting restrictions or the grant of anonymity to a party.

He submitted that the derogation sought when coupled with the suggested orders under CPR rule 5.4C would prevent any member of the public, or any journalist, having access to any documents in the case. The allegations in this case were serious and raised matters of widespread national and international concern. They would be of great interest to the readership of the two international publishers who had intervened in this case. The allegations were of the highest public interest. The Applicants were wrong to contend that the media could publish whatever they liked about this case with complete impunity. Privilege only attached to a report which was fair and accurate.

It was not the court’s role on an application for a private hearing to determine whether the disputed allegations were true or false. Even if every word of Mr Roxborough’s ninth witness statement were true, there would still be no justification for a private hearing as to the disputed allegations. It has always been understood since the time of Scott v Scott [1913] AC 417 that the open justice principle might mean that embarrassing and damaging allegations are widely published when they have yet to be tested. This is because of the strength of the public interest in open justice which prevails over protection of parties and witnesses from embarrassment. Every day serious allegations are made in both criminal and civil cases, of murder, drug dealing and corruption in criminal cases and of fraud and dishonesty or clinical negligence in civil cases. Such allegations have enormous potential for grave reputational harm. Most of the people involved do not have the wealth and power of the Applicants with diplomats and public relations consultants available to them. In the present case, the suggestions of harm to the Applicants as a result of a public hearing were not supported by clear and cogent evidence.

Although Global Torch’s application relies on only sub-paragraphs (a) and (g) of CPR rule 39.2(3), it is helpful to set out the full text of rule 39.2, which is in these terms:

“General rule—hearing to be in public

39.2

—(1) The general rule is that a hearing is to be in public.

(2)

The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(3)

A hearing, or any part of it, may be in private if—

(a)

publicity would defeat the object of the hearing;

(b)

it involves matters relating to national security;

(c)

it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d)

a private hearing is necessary to protect the interests of any child or patient;

(e)

it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f)

it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g)

the court considers this to be necessary, in the interests of justice.

(4)

The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.”

The parties cited to me a large number of authorities which discuss the common law principle as to open justice. Some of the decisions were more relevant than others and some were of greater authority than others. The particular decisions which are helpful in the present case are Scott v Scott [1913] AC 417, A.G. v Leveller [1979] AC 440, R v Chief Registrar of Friendly Societies ex p New Cross Building Society [1984] 1 QB 227, R v Legal Aid Board ex p Kaim Todner [1999] QB 966, R (Mohamed) v Foreign Secretary [2010] 3 WLR 554, Ambrosiadou v Coward [2011] EMLR 21 and Al Rawi v Security Service [2012] 1 AC 531. I will take the following summary of the law from these authorities.

Open justice is a fundamental common law principle. The general rule is that all hearings should take place in open court to which the public and the media have access and that judgments and court orders are public documents. The open justice principle applies to both trials and interlocutory hearings.

There are two dimensions to open justice. The first is that the public are entitled to attend court proceedings to see what is going on. The second dimension is the right of the media to report the court proceedings to the public. The media should not be discouraged from publishing fair and accurate reports of court proceedings. In reality, very few members of the public attend court hearings so that the scrutiny of court proceedings is performed by the media acting on behalf of the public.

The hearing of cases in open court deters inappropriate behaviour by the court. It maintains public confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted in private or with anonymity being given to one or more of the parties. It makes uninformed or inaccurate comment about the proceedings less likely.

Court hearings taking place in public enable information to become available to the public in a democracy. What goes on in the courts is inherently of legitimate interest, and real importance, to the public.

Derogations from open justice can be justified in exceptional circumstances where the derogation is strictly necessary to secure the proper administration of justice. The burden lies on the party seeking the derogation to satisfy the court that it is necessary. This requires there to be clear and cogent evidence of the alleged necessity. The question for the court whether to allow a derogation from the open justice principle is not a matter of discretion. It is a matter of principle which requires it to be shown that the derogation is indeed necessary.

Given the number of statutory exceptions to the open justice principle, it has been stated clearly and unambiguously that the court has no power to create further exceptions to that principle by a process of analogy save possibly in the most compelling circumstances.

There is no general exception to the open justice principle simply because privacy or confidentiality is in issue. A hearing should only be in private where the court is satisfied that nothing short of the exclusion of the public would suffice to allow justice to be done, that is, exclusions must be no more than the minimum strictly necessary to ensure justice is done. The holding of a hearing in private is a particularly serious derogation from open justice. It involves a more significant interference with the open justice principle than does an order conferring anonymity on a party or imposing reporting restrictions.

The fact that a hearing in open court may be painful, humiliating and a deterrent either to a party or to a witness is not normally a proper basis for departing from the open justice principle. The interest protected by the open justice principle is the public interest in the administration of justice rather than the private welfare of those involved in court proceedings.

The privileges conferred by the Defamation Act 1996, sections 14 and 15 and by the Contempt of Court Act 1981, section 4(1) show Parliament’s support for the open justice principle. In particular, the 1996 Act confers absolute privilege on a fair and accurate report of court proceedings when published contemporaneously and qualified privilege when the report is not contemporaneous.

It is relevant to refer to the rights protected by Articles 6, 8 and 10 of the Convention. I note in passing that the Applicants did not seek to rely on Article 2 (right to life) of the Convention even though Mr Roxborough had referred to the risk of physical attack on some of the Applicants.

Article 6 of the Convention is in these terms:

“Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3 Everyone charged with a criminal offence has the following minimum rights:

(a)

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)

to have adequate time and facilities for the preparation of his defence;

(c)

to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)

to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The approach adopted in Article 6 is much the same as the common law approach. There has been discussion in the past as to whether Article 6 applies to interlocutory hearings. That topic is helpfully discussed in ABC Ltd v Y [2012] 1 WLR 532. However, I do not need to pause to consider that matter here as it was accepted before me that the common law principle as to open justice applies to interlocutory hearings.

Article 8 of the Convention is in these terms:

“Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The parties made detailed submissions on whether and, if so, the extent to which Article 8 protects a person’s reputation. I consider that it is sufficient in the present case to cite and rely upon the way in which the matter is described by Lord Rodger in Re Guardian News and Media [2010] 2 AC 697 in the following passage where he discussed and analysed earlier decisions of the European Court of Human Rights:

“Article 8 and reputation

37 On behalf of the press, [counsel] did not dispute that article 8 rights fall within the scope of “the rights of others” in article 10(2). But, under reference to the judgment of the European Court of Human Rights in Karakó v Hungary (Application No 39311/05) (unreported), given 28 April 2009 , he submitted that article 8 does not confer a right to have your reputation protected from being affected by what other people say. So the only article in play in relation to M's reputation was article 10 .

38 In the Karakó case the applicant was a politician. During an election campaign an opponent had said in a flyer that the applicant was in the habit of putting the interests of his electors second. The applicant accused his opponent of criminal libel, but the prosecutor's office terminated the investigation on the ground that the flyer concerned the applicant as a candidate rather than as a public official and so its publication was not a matter for a public prosecution. Then, acting as a private prosecutor, the applicant submitted an indictment for libel. The district court dismissed the indictment on the ground that the opponent's statement was a value judgment within the limits of acceptable criticism of a politician. The applicant complained of a violation of his article 8 rights. The European court held that there had been no such violation.

39 As the European court's judgment in the Karakó case itself shows, in Petrina v Romania (Application No 78060/01) (unreported), given 14 October 2008 , the court had confirmed, at para 19, that the right to protection of reputation is a right which, as an element of private life, falls within the scope of article 8 (“le droit à la protection de la réputation est un droit qui relève, en tant qu'élément de la vie privée, de l' article 8 de la Convention”). The court had gone on, at para 29, to survey its previous case law, ending up with the statement in Pfeifer v Austria (2007) 48 EHRR 175, 183, para 35, that “a person's reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity …”

40 In the Karakó case the European court did not depart from that earlier jurisprudence. Rather, it accepted, at para 23, that some attacks on a person's reputation could be of such a seriously offensive nature as to have an inevitable direct effect on the victim's private life. But the court took the view that, on the facts, the applicant had not shown that the publication in question had constituted such a serious interference with his private life as to undermine his personal integrity. That being so, the applicant's reputation alone was at stake in the context of the expression which was said to have damaged it.

41 Contrary to what [counsel] suggested, however, this conclusion did not mean that the court was proceeding on the basis that the applicant's claim in respect of his reputation did not fall within the scope of article 8 . That would have been inconsistent with the court's previous case law and would also have made nonsense of the reasoning in paras 24–29 of the judgment. In particular, in paras 24 and 25 the court is concerned with the inter-relationship of articles 8 and 10 in the circumstances. The outcome of that discussion (para 26) is that, even though the applicant is founding on article 8 , the court must consider whether the Hungarian authorities properly applied the principles inherent in article 10 . The court concludes that they did: para 27. Putting the two strands together, the court goes on to find, in para 28, that the applicant's claim that his reputation as a politician has been harmed is not sustainable under article 8 and that a limitation of his opponent's right to freedom of expression under article 10 would have been disproportionate. That leads, finally, to the conclusion that there has been no violation of article 8 .

42 In short, in the Karakó case the European court was concerned with the application of articles 8 and 10 in a situation where, in the court's view, the applicant had not shown that the attack on his reputation had so seriously interfered with his private life as to undermine his personal integrity. In fact, the court does not mention any specific effects on the applicant's private life. In the present case, however, as already set out at para 21 above, M does explain how he anticipates that his private life would be affected if his identity were revealed. Admittedly, he appears at one point to single out the alleged damage to his reputation. Nevertheless, the court is really being invited to consider the impact of publication of his name on his reputation as a member of the community in which he lives and the effect that this would have on his relationship with other members of that community. In that situation the alleged effect on his reputation should be regarded as one of the reasons why, he contends, a report that identified him would seriously affect his private life. On that basis the report would engage article 8(1) . ”

Article 10 of the Convention is in these terms:

“Freedom of expression

1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

In some cases, the rights protected by the Articles of the Convention may appear to be in conflict. The right approach where more than one Article of the Convention is potentially applicable was described by Lord Steyn in Re S (a Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at [17] as follows:

“The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”

For completeness, I should also refer to Section 12 of the Human Rights Act 1998, which provides:

“12 Freedom of expression.

(1)

This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2)

If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a)

that the applicant has taken all practicable steps to notify the respondent; or

(b)

that there are compelling reasons why the respondent should not be notified.

(3)

No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4)

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)

the extent to which—

(i)

the material has, or is about to, become available to the public; or

(ii)

it is, or would be, in the public interest for the material to be published;

(b)

any relevant privacy code.

(5)

In this section—

“court” includes a tribunal; and

“relief” includes any remedy or order (other than in criminal proceedings).”

There is recent guidance reported as Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003 to which it is relevant to refer in the present context, although it also deals with some matters which do not arise in the present case: The Practice Guidance contains the following passages:

“Open justice

9 Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are, public: see article 6.1 of the Convention, CPR r 39.2 and Scott v Scott [1913] AC 417. This applies to applications for interim non-disclosure orders: Micallef v Malta (2009) 50 EHRR 920 , para 75ff; Donald v Ntuli (Guardian News & Media intervening) [2011] 1 WLR 294 , para 50.

10 Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R v Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227, 235; Donald v Ntuli [2011] 1 WLR 294, paras 52–53. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.

11 The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M v W [2010] EWHC 2457 (QB) at [34].

12 There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward [2011] EMLR 419 , paras 50–54. Anonymity will only be granted where it is strictly necessary, and then only to that extent.

13 The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott [1913] AC 417, 438–439, 463, 477; Lord Browne of Madingley v Associated Newspapers [2008] QB 103, paras 2–3; Secretary of State for the Home Department v AP (No. 2) [2010] 1 WLR 1652 , para 7; Gray v W [2010] EWHC 2367 (QB) at [6]–[8]; and H v News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645, para 21.

14 When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication of article 8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8 Convention right is entitled. The proper approach is set out in H’s case [2011] 1 WLR 1645.

15 It will only be in the rarest cases that an interim non-disclosure order containing a prohibition on reporting the fact of proceedings (a super-injunction) will be justified on grounds of strict necessity, ie, anti-tipping-off situations, where short-term secrecy is required to ensure the applicant can notify the respondent that the order is made: T v D [2010] EWHC 2335 (QB). It is then only in truly exceptional circumstances that such an order should be granted for a longer period: Terry v Persons Unknown [2010] EMLR 400, para 41.”

The Applicants submit that this case comes within rule 39.2(a) and, that being so, the court should exercise its power to direct a private hearing in relation to what are said to be the damaging false allegations against them. Rule 39.2(a) applies where publicity would defeat the object of the hearing. There are some obvious cases to which that part of rule 39.2 applies. One type of case is where the object of the hearing is to obtain an order from the court restraining publication of material which is a trade secret, or otherwise confidential, or which is private and protected by Article 8. Another type of case is where the object of the hearing is to obtain relief from the court without tipping off the respondent who, if informed of what was happening, could defeat the object of the hearing by taking action to render the court’s order ineffective.

In this case, the various objects of the hearings which are to take place do not fall within any of these types of case. The objects of those hearings are to obtain determinations as to the immunity of the two Princes, or as to the issues arising in relation to the jurisdiction of the court or to obtain directions as to the conduct of the litigation. None of those objects will be defeated or even impaired if the hearings of the various applications are in public. Although the Applicants rely on Article 8, and I will refer to their case on Article 8 in more detail below, the present is not a case where a party is seeking an injunction to restrain publication of private information because such publication would be an infringement of that party’s Article 8 rights, which infringement ought to be restrained by the court.

Accordingly, I consider that this case does not come within rule 39.2(a).

The Applicants do not submit that rule 39.2(b) (national security) or (c) (confidential information) apply to this case. They do, however, submit that the case comes within rule 39.2(g). That part of rule 39.2 applies where the court considers that a private hearing is necessary in the interests of justice. Paragraph (g) does not itself give any guidance as to how the court should decide what is in “the interests of justice” in any particular case. The paragraph is deliberately in general terms to allow a court to take account of what might potentially be a wide range of material considerations in the many different types of case which might arise.

As regards the interests of justice in the present case, the first material consideration is the general principle that the interests of justice are normally best served by a hearing in public. A hearing in private is a derogation from the open justice principle and should only be permitted where the derogation is “necessary” (as the language of paragraph (g) itself recognises) and any derogation must be kept to a minimum. In this context, a direction that a hearing be in private is a major derogation.

The principal submission for the Applicants was that their reputations would be damaged by a public hearing of the allegations in this case. They say that they have a right to their reputations and that right is protected by Article 8. The court must, or at any rate should, take steps to protect their legal rights to their reputations.

The extent to which a person’s reputation is protected by Article 8 was considered in Re Guardian News and Media Ltd [2010] 2 AC 697 at [37] – [42] in the passage I have cited earlier. Guided by the way in which the matter is described in that case at [40] and [42] in particular, it seems to be the law that an attack on a person’s reputation can infringe Article 8 if it is of such a seriously offensive nature as to have an inevitable direct effect on the victim’s private life. A serious interference with a person’s private life can undermine his personal integrity. Thus, in any particular case, the court needs to consider whether an attack on a person’s reputation will have a direct effect on that person’s private life.

Even if a public hearing of the allegations against the Applicants (or each of them apart from the limited company, Global Torch itself) would have an inevitable direct effect on their private lives, the rights under Article 8 are not to be considered in isolation. In this case, any relevant rights under Article 6 and Article 10 must also be considered.

As to Article 6, the Apex parties are entitled to a public hearing but that entitlement is qualified by the express statement that the press and public may be excluded from all or part of a trial where the protection of the private life of the parties so requires or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Thus, if the Applicants were to show that a private hearing was needed to protect the private life of the parties, then the court may, compatibly with Article 6, direct a private hearing. Because the court “may” direct a private hearing in this way, it would seem that the court should carry out a balancing exercise between the Article 6 entitlement of the Apex parties and any Article 8 right established by the Applicants.

As to Article 10, the public (and therefore the news media) have the right to freedom of expression. They therefore have the right to publish information about the allegations made against the Applicants. The exercise of this right may be subject to such restrictions as are necessary for the protection of the reputation or rights of others. “Reputation” is expressly mentioned in that part of Article 10 which qualifies the right to freedom of expression. The “rights of others” will also include a right to reputation, where (on the facts of a particular case) that right is protected by Article 8.

There was argument as to whether Article 8 was engaged in this case. The argument for the Guardian and the FT was that Article 8 was not engaged because the Applicants did not have any expectation of privacy in relation to the matters in issue in this case. However, that submission does not address the particular way in which the Applicants, or at any rate the natural persons among them, put their case based on what is said to be a serious attack on their reputations which they say would have an inevitable direct effect on their personal integrity and their private life.

If Article 8 is not engaged in this case, then so far as Convention rights are concerned there is no need to do a balancing exercise between Article 8 on the one hand and Articles 6 and 10 on the other. The case would then be one where Articles 6 and 10 were both engaged with the result that the hearing should be in public unless the Applicants were able to show that the qualifications to the rights conferred by Articles 6 and 10 were all satisfied. If on the other hand Article 8 is engaged then it will be necessary to carry out a balancing exercise between the rights conferred by Article 8 on the one hand and the rights conferred by Articles 6 and 10 on the other.

The test which is identified in paragraph [40] of Re Guardian News & Media involves an assessment of the degree of seriousness of the interference with a person’s private life and an assessment of whether that interference has the effect of undermining that person’s personal integrity. In the present case, the Applicants stress the seriousness of the disputed allegations against them. I agree that those allegations are very serious. However, I am much less clear as to whether it has been shown that these serious allegations will result in a serious interference with the private life of the Applicants and whether such an interference will undermine their personal integrity. Part of the difficulty in forming that assessment is that the court is asked to make an assessment of the circumstances which exist in a foreign country with a culture which is different from that of the United Kingdom and with virtually no reliable evidence as to the relevant circumstances. In the end, I consider that I should proceed on the basis that the facts of this case in relation to the Applicants (apart from Global Torch itself) do potentially engage Article 8. As will be seen, in such a case I will have to carry out a balancing exercise between the rights under Article 8 and those under Articles 6 and 10. I consider that it will be more helpful to pay close attention to the actual evidence which is before me as to the effect of there being a public hearing of this dispute than to attempt to grapple, possibly inconclusively, with the question of whether Article 8 is engaged.

As regards the nature of the exercise required to balance competing rights under Articles 6 and 10 on the one hand and Article 8 on the other, I will attempt to apply the approach identified in Re S [2005] 1 AC 593 at [17] (which concerned the balance between Articles 8 and 10). I have already cited the relevant passage. I therefore need to focus intensely on the comparative importance of the specific rights being claimed, to take into account the justifications for interfering with or restricting each right and consider the question of proportionality of any suggested approach in relation to each Article which is engaged. In carrying out the balancing exercise, I need to address the various matters relied upon by the Applicants, in particular, those which are the subject of Mr Roxborough’s ninth witness statement.

It is possible to take relatively shortly some of the matters relied upon by the Applicants. They submit that relations between Saudi Arabia and the United States of America and between Saudi Arabia and the United Kingdom will be harmed if the relevant allegations are aired at a public court hearing (and then subsequently accurately reported by the news media). It is clearly established that reasons which are put forward as a suggested justification for a derogation from the open justice principle must be supported by clear and cogent evidence. The opinions and submissions of the solicitor for the Applicants come nowhere near being clear and cogent evidence for this purpose. I take a similar view in relation to the material relied upon by the Applicants as to the risk of distress to Prince Mishal, with the suggested consequential effect on his health. The material relied upon does not come anywhere near being clear and cogent evidence of such a risk as to justify the derogation which is sought. I also consider that the suggestion that the two Princes will be vulnerable to physical attacks is not established by clear and cogent evidence. In all three respects dealt with in this paragraph, the material on which the court is asked to act is little more than non-expert opinion and submission. That is not good enough for present purposes.

I now turn to consider the more general submissions made as to the effect of publicity on the reputations of the Applicants. As explained, I am prepared to assume that Article 8 is engaged in the present case and that the disputed allegations, if false, could be sufficiently serious attacks on the reputation of the Applicants (apart from Global Torch itself) as to have an inevitable direct effect on their private lives so as to affect their personal integrity. I therefore have to focus intensely on the comparative importance of the rights protected by Articles 6 and 10 and that protected by Article 8.

The authorities on the open justice principle are emphatic as to the central importance of that principle in our systems of civil and criminal justice. As was pointed out in argument by the Guardian and the FT, faithful adherence to that principle, day in and day out in the civil and criminal courts, involves allegations being made and considered which have profound consequences for the reputation of persons concerned in those matters. It is not difficult to think of consequences for the reputation of individuals which are as grave, or more grave, than the consequences which might occur to the individual Applicants in this case. Speaking generally, the consequences for the reputation of individuals are generally not considered to be a sufficient reason for derogating from the open justice principle to the considerable extent of conducting court hearings in private. This indicates to me that the importance which has always been attached, and still is attached, to the open justice principle is comparatively greater than the importance attached to the right to a reputation.

It might be objected that the above approach is only justified where the court proceedings will either result in a finding that the allegations were unfounded (and the reputation is vindicated) or the allegations are proven (in which case the earlier reputation was not justified). In some cases, it will be possible to predict that one or other of those consequences will inevitably follow. However, in many cases where a public hearing in relation to a serious allegation carries the risk of damaging a reputation, there is no inevitability that the court proceedings will result in a determination one way or the other. Proceedings might be settled in circumstances where there is no court determination of the disputed allegations. Alternatively, the overall dispute might be determined in a particular way which does not require the court to determine every disputed allegation which might have been made in the course of the proceedings. Those outcomes are not unusual but, in my judgment, the possibility of those outcomes does not lead to the conclusion that disputed allegations which might have a serious impact on a person’s reputation must be litigated in private.

In the present case, the Applicants stress the possible ways in which the case might be concluded without the court adjudicating on the relevant disputed allegations. It is said that if the two Princes succeed with the submissions as to immunity, then they will be removed as parties to the litigation. However, in such a case, the litigation would continue to involve Global Torch and Mr Abu-Ayshih and, absent something else happening, the disputed allegations would remain relevant. The Applicants then submit something else may well happen, namely, that a court is persuaded to hold that the disputed allegations are irrelevant given the nature of the proceedings as unfair prejudice petitions in relation to the Company. Without finally determining who might be right in relation to such arguments, it seems to me to be a little unlikely that that result will be achieved. This may be an unusual case of alleged unfair prejudice but I am very doubtful if a court could take the view on an interlocutory application that all, or even any, of the allegations are wholly irrelevant so that they can be dismissed from the case. If that approach is right, then the Applicants will wish to contend that the disputed allegations have no real prospect of success. If that submission is made and succeeds, then the Applicants will be vindicated. If the court considers that the disputed allegations must go to trial, then the trial will give the Applicants the opportunity of being vindicated by the ultimate judgment.

The Applicants also submitted that if it is later established that the disputed allegations are false, then it will follow that they should never have been made. In particular, they say that they should never have been aired at a public hearing and the making of the allegations should never have been publicised by news reports of such a public hearing. The Applicants therefore submitted that the court, in advance of knowing who is right and who is wrong in relation to the disputed allegations, should protect their reputations on an interim basis by directing that the allegations should not be aired at a public hearing until they are found by the court to be true.

If I were to accept this submission from the Applicants, then it would go a long way to undermining the principle of open justice. Absent Article 8, the Applicants do not have a cause of action to prevent the Apex parties making the disputed allegations in court proceedings. Similarly, the Applicants do not have a cause of action to prevent the news media publicising allegations which are aired at a court hearing. Accordingly, the Applicants are not able to claim an interim injunction to prevent publicity being given to what is said at a public court hearing. The position is different from a claim to prevent the publication of confidential information or a publication which is an infringement of Article 8. Although I am prepared to assume that Article 8 is engaged in this case, Article 8 is not infringed by the making of the disputed allegations in the context of this litigation nor by the resulting publicity given to what has been said at a public court hearing. That is because Article 8 is qualified by the court’s power to permit such a court hearing to take place in public. As I have already stated, the settled jurisprudence in this country both pursuant to the common law and the Convention is that there is an important public interest in court hearings taking place in public. If the court applies that jurisprudence with the result that court hearings in this case will be in public, then there is no infringement of Article 8.

In any event, I think there is a non sequitur in the Applicants’ argument. They submit that if the allegations are false they should not have been made and the making of the allegations should not have been publicised. I agree that if the allegations are false they should not have been made but if in fact they are made then the news media are entitled to report the fact of such allegations and the further fact that they are denied and will be, or may be, resolved by the decision of the court.

The Applicants’ next submission, in relation to privacy for court hearings, is that the Apex parties are using this litigation as an attempt to extort money from the Applicants. The difficulty with that submission is that many of the facts relied upon by the Applicants are disputed and those disputes of fact cannot be resolved on this application. They allege that the Apex parties have fabricated documents and made up allegations and, having done so, have threatened to give wide and damaging publicity to the allegations with a view to extorting money from their victims, the Applicants. The Apex parties contend that the Applicants have been guilty of serious wrongdoing, that the Apex parties have come to a court of justice to seek appropriate redress and are prepared to settle the claim for a sum which reflects the strength of their claim. The Apex parties would say that they are not doing anything inappropriate in expecting the court to act in the normal way by holding court hearings in public. Nor are the Apex parties doing anything inappropriate, particularly in the context of cross-applications under section 994 of the 2006 Act, in making it clear that they are prepared to settle on what the Apex parties will say are fair terms. If the Applicants are concerned about publicity, particularly publicity for allegations which the Apex parties say they will prove, and if the Applicants are the more willing to be realistic about offering to settle the claim, then the Apex parties are not doing anything wrong in hoping that that will happen.

If I were able to determine at this interlocutory stage that the Apex parties were knowingly putting forward false claims and were abusing the processes of the court by seeking to take advantage of the Applicants’ concern about publicity in relation to false allegations, then I would be very concerned and would have to consider what relief to grant to protect the victims of abusive behaviour. However, it is wholly unrealistic for the Applicants’ to submit that I can form that view on the material before me and grant relief accordingly.

I return to the wording of rule 39.2(g). I am able to order that the relevant hearings be in private if I consider this to be necessary in the interests of justice. I have considered the Applicants’ case that justice requires the court to protect their rights under Article 8. Their rights under Article 8 must be balanced against the rights of others under Articles 6 and 10. For that purpose, I have focussed on the comparative importance of the rights claimed and the justifications suggested for interfering with or restricting such rights. In this case, having examined the various matters which are relied on, I consider that the importance of the open justice principle is greater than the importance to be attached to the reputations of the Applicants. I consider that it is not necessary in the interests of justice to conduct the relevant hearings in private.

My conclusion in relation to the application under CPR rule 39.2 for private court hearings is that it would be wrong to accede to that application. I consider that the court hearings in this litigation should take place in open court, unless there later emerges some new material which would justify a different approach. It has been accepted by the Applicants that this is not a case in which anonymity should be granted to any of the Applicants.

I need now to set out the parts of CPR rule 5.4C which are relevant to the applications I need to decide:

“5.4C.— Supply of documents to a non-party from court records

(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), subject to paragraph (1B).

…

(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.

…”

Under rule 5.4C(1), the non-parties the Guardian and the FT are entitled to any statement of case served in these proceedings. “Statement of case” is defined in rule 2.3(1). It was not suggested in this case that the entitlement under rule 5.4C(1) is affected by rule 5.4C(3). Under rule 5.4C(4), the court may, on the application of certain persons, including a party, make various orders including an order that a non-party may not obtain a statement of case pursuant to rule 5.4C(1). The Applicants have applied for such an order.

Under rule 5.4C(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. As explained earlier, the Guardian and the FT have applied under this rule for certain specified documents. No point has been taken as to the degree of specification of the documents which are sought.

The cross-applications under rule 5.4C did not receive much attention in the course of the argument, which focussed on the applications under rule 39.2. I was however referred to a number of authorities at first instance which considered the approach to be adopted to rule 5.4C particularly where there has been a hearing in private or where the court has granted anonymity to a party or to a witness or where there have been reporting restrictions.

The cross-applications under rule 5.4C now fall to be considered against the background that I have decided that court hearings in this litigation should take place in public and not in private. A number of court hearings have already taken place. I consider that insofar as any part of those earlier hearings was in private, there was no justification for a private hearing.

Although I received brief submissions on the meaning of a “statement of case” within rule 5.4C(1), I will first consider the application by the Guardian and the FT under rule 5.4C(2). If I were to hold that they have made out a case for permission to have access to a wider class of documents, then it will not be necessary to rule on the meaning of a “statement of case”.

I consider that the approach which I should adopt to the application under rule 5.4C(2) is that identified by Toulson LJ (with whom Lord Neuberger of Abbotsbury MR and Hooper LJ agreed) in R (Guardian News & Media Ltd) v Westminster Magistrates’ Court [2012] 3 WLR 1343 at [85], as follows:

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. In company with the US Court of Appeals, 2nd Circuit, and the Constitutional Court of South Africa, I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”

In the present case, the documents sought by the Guardian and the FT are sought for a proper journalistic reason. I consider that there is likely to be considerable interest in the material contained within those documents. There are good reasons why the news media should have available to them the documents which they seek to assist them in preparing a fair and accurate report of hearings which have, or should have, taken place in public. Given my earlier conclusion that court hearings in this litigation should take place in public, I do not see any countervailing reason consistent with that conclusion which would persuade me to withhold the documents sought by the Guardian and the FT. Indeed, the reasons put forward in argument for the Applicants for withholding the documents which are sought were the identical arguments which they put forward in support of their applications for directions that court hearings in this case should be in private.

I conclude that I should permit the Guardian and the FT pursuant to rule 5.4C(2) to obtain the documents which they seek and I should not make an order under rule 5.4C(4) which prevents them obtaining the statements of case in this litigation pursuant to rule 5.4C(1).

As earlier explained, I have set out in a confidential schedule the five allegations against the Applicants which were central to the present applications. My decision, if left unreversed by an appellate court, is that it is appropriate for the contents of that confidential schedule to form part of this judgment so that they may be in the public domain. However, I must provide for the possibility that an appellate court might take a different view. Accordingly, during the period allowed by CPR Part 52 (or such other period as the court orders) for the Applicants to file an Appellant’s Notice against my decision, the confidential schedule will remain confidential to the parties and may not be communicated to others. If the Applicants do not file an Appellant’s Notice within the time permitted by Part 52 (or such other period as the court orders), then the confidential schedule will form part of this judgment and may be communicated to others. If the Applicants do file an Appellant’s Notice within the time permitted by Part 52, then the confidential schedule will remain confidential to the parties until further order in that appeal.