Associated Newspapers Ltd v Bannatyne & Ors

This is my extemporary judgment in two related sets of proceedings concerning the affairs of Bannatyne Fitness Ltd. The first in point of time is a petition under Part 30 of the Companies Act 2006 brought by Mr. Graham Nigel Armstrong under petition number 2403 of 2015 against, as the proceedings are now constituted, Mr. Duncan Walker Bannatyne, Mr. Justin Musgrove and Bannatyne Fitness Ltd. That petition was presented to the court on 16^th April 2015 and effectively seeks a declaration that the company's affairs have been conducted in a manner unfairly prejudicial to the interests of the members generally, or some part of its members (including Mr. Armstrong), for an order that the respondents (or the company) purchase Mr. Armstrong's shares in the company, and, finally, for an order that Mr. Armstrong be permitted to bring his complaints in the form of derivative proceedings.

Those proceedings were the subject of a case management order made by District Judge Bever on 7^th September 2015, when the petition was ordered to stand as points of claim and directions were given for the service of points of defence.

The second set of proceedings is a Part 7 claim brought by Mr. Armstrong against Bannatyne Fitness Ltd. and Mr. Bannatyne for damages for wrongful dismissal. That claim was issued on 4^th September 2015 and it has been ordered to be case managed with the Part 30 petition. Mr. Armstrong was the former Chief Executive Officer of Bannatyne Fitness Ltd.

On 21^st September 2015 Associated Newspapers Ltd. issued an application notice seeking orders pursuant to rule 7.31A (6) and (9) of the Insolvency Rules permitting it to inspect documents contained in the court file, particularly the particulars of claim and the defence. That application came before His Honour Judge Bird, sitting as a Judge of the High Court, on paper and he ordered that it should be served on the petitioner and all of the respondents to the petition. A hearing was to be listed before Judge Bird on 25^th September where the court was said to be likely to treat the application as referring to points of claim and points of defence rather than particulars of claim and defence and might, at the hearing, treat the application as one made under CPR 5.4C in the event that the relevant documents did not form part of the file referred to in the relevant Insolvency Rule.

The matter came before Judge Bird on 25^th September when various undertakings were given which enabled named individuals associated with the applicant, Associated Newspapers Ltd., to consider the terms of the particulars of claim and points of claim, subject to suitable undertakings as to keeping those contents confidential and to not making any use of them. On that basis, the application was adjourned to a further hearing which was ordered to take place in private and which, in the event (and after the vacation of an intervening hearing date), has come on for hearing before me today.

The only evidence before the court is that contained in the original application notice, together with a short witness statement from Mr. Martin Wood, a lawyer working in the Legal Department of Associated Newspapers Ltd., made on or about 23^rd September 2015. On this application the applicant, Associated Newspapers Ltd., is represented by Mr. Adam Wolanski (of counsel). The effective respondents, Mr. Bannatyne and Bannatyne Fitness Ltd., are represented by Mr. Julian Wilson (also of counsel).

There is present in court Mr. Armstrong. His solicitors, Shulmans LLP, wrote in to the court on 12^th November 2015 making it clear that Mr. Armstrong does not oppose the application for Associated Newspapers Ltd. to have access to the statements of case on the court file and is neutral in relation to their having access to further documents. The letter made it clear that Mr. Armstrong would not be represented at today's hearing but would be attending in the capacity of an observer, which he has done (together with his father).

Both Mr. Wolanski and, more recently, Mr. Wilson have filed written skeleton arguments with the court, although I did not have the opportunity of reading through Mr. Wilson's skeleton until the beginning of the present hearing. The application bundle only reached me just before 10 minutes past 10.00 this morning for the hearing listed at 10.30.

Although in form this is an application by Associated Newspapers Ltd. for access to documents on the court file, in fact it is accepted that the real matter before the court is an application, which has never been formulated in writing, by the respondents to redact certain parts of the statements of case on the court file. It is accepted that since these are not proceedings governed by the Insolvency Rules, those rules have no application and that the applicable rule is that contained in CPR 5.4C. By sub-rule (1):

Since this is, therefore, effectively Mr. Wilson's application, it was he who opened the application and addressed me for about an hour and a quarter. Mr. Wolanski then replied for about an hour and 5 minutes; and Mr. Wilson then responded for about 15 minutes. At about 1.25 the court adjourned until 2.15 for me to deliver this extemporary judgment.

The nature of the redactions sought by Mr. Wilson has been reduced since the time he prepared his written skeleton argument. What is now sought is the redaction of certain passages at paras. 46, 48, 49, 50, 54.2, 56, 77, 79-82 and 87 of the points of claim in the unfair prejudice proceedings. Similar passages are sought to be redacted in the particulars of claim in the Part 7 claim. Mr. Wilson did not have time to go through the particular redactions sought in that latter statement of case, nor did he have the time to go through the redactions sought in the defences and counterclaims of Mr. Bannatyne, but I have no doubt that once I have delivered a judgment dealing with the principle of the matter, it should prove possible for the parties' legal representatives to agree upon any redactions that may follow from the terms of this judgment. If there is any difficulty in that regard, then further application can be made to the court to give effect to the terms of this extemporary judgment.

Mr. Wilson explained that the background to the application is a particularly fraught divorce between Mr. Bannatyne and his former wife, to whom, in order to preserve such anonymity as may still attach to her, I will refer as "Mrs. Bannatyne", although that is no longer the name by which she is known. In the course of the financial remedy proceedings forming part of that divorce, Mr. Bannatyne produced a Form E, which is the means by which financial disclosure of his financial assets and resources is made. He attached to that a copy of a contingency agreement which created certain contingent obligations on the part of Bannatyne Fitness Ltd. towards Mr. Armstrong and under which Mr. Armstrong was to be entitled to a financial settlement in certain circumstances. That written contingency agreement produced by Mr. Bannatyne was dated 25^th January 2010 and was accompanied by a supporting minute of the board of Bannatyne Fitness Ltd. bearing the same date. Mr. Bannatyne, and also Mr. Armstrong, each made witness statements in which they referred to the contingency agreement as having been made in January 2010. Subsequently, both Mr. Bannatyne and Mr. Armstrong each made corrective witness statements. In the case of Mr. Bannatyne, it was his fourth witness statement, in which he disclosed that, whilst terms had originally been agreed orally between Mr. Armstrong and Bannatyne Fitness Ltd. in January 2010, those terms had not been reduced to writing until September 2011, and that the contingency agreement had then been recorded in terms which related to an increased financial settlement to Mr. Armstrong in the event that the contingency agreement failed to be implemented. It was also disclosed that the board minutes had actually related to a board meeting held, not in January 2010, but on 9^th September 2011. Mr. Bannatyne's fourth witness statement was accompanied by a letter from his solicitors to the solicitors acting for his former wife in which Mr. Bannatyne expressed his deep regret for the manner in which the terms of the contingency agreement had previously been misrepresented, and tendering his apologies for that. Mr. Bannatyne's fourth witness statement made similar expressions of regret and contained similar apologies. At the same time, Mr. Armstrong made a second witness statement in which he accepted that his earlier witness statement had been misleading, for which he too apologised.

The financial remedy proceedings between Mr. Bannatyne and his former wife did not proceed to a contested trial. In the event they were settled by the terms of a consent order approved by Mr. Justice Simon on 14^th January 2013. That consent order contained undertakings by Mr. and Mrs. Bannatyne to the court, and with each other, whereby neither party was to disclose any confidential documents disclosed within the financial remedy proceedings, or affidavits or witness statements filed within the financial remedy proceedings, or communicate the confidential information contained within any documents disclosed within those financial remedy proceedings, or affidavits or witness statements filed within those proceedings. Mr. Wilson makes the point that those undertakings remain binding upon Mr. Bannatyne but do not extend to Mr. Armstrong.

That is the background to the application brought by Mr. Bannatyne and Bannatyne Fitness Ltd. They seek only a partial departure from the principle of open justice. The court is invited to exercise its discretion under CPR 5.4C (4) (c) to restrict inspection by Associated Newspapers Ltd., and no doubt the press generally, of the statements of case to edited versions which uphold the confidentiality of the material in the divorce financial remedy proceedings. The respondents' case is that the presumption in favour of the applicant obtaining unedited copies of the statements of case should be displaced by a countervailing ground for refusing unrestricted access which is that the statements of case refer to the confidential divorce financial remedy proceedings, and that that countervailing consideration outweighs the interest in open reporting.

In his written skeleton argument, Mr. Wilson emphasised that a number of paragraphs in the statements of case contain information of a confidential nature concerning the private divorce financial remedy proceedings between Mr. and Mrs. Bannatyne. Those proceedings had been contested but were settled on a confidential basis by the consent order which was approved by Mr. Justice Simon at a private court hearing on 14^th January 2013.

Mrs. Bannatyne's original approach towards this application had been to seek protection from the publication of all documents and information disclosed within the divorce financial remedy proceedings, thereby reflecting her undertaking to Mr. Justice Simon. Initially solicitors acting for her, Payne Hicks Beach, had sought to prevent the publication of any reference, including their names, to any matter concerning Mr. and Mrs. Bannatyne's children, and any confidential documents disclosed within the divorce and financial remedy proceedings between Mr. and Mrs. Bannatyne, and any confidential information contained within the same. That was to include any reference to any settlement Mrs. Bannatyne received, or was to receive, from her former husband, including (but not limited to) the quantum, structure and timing of any payments and the details of any financial remedy order of the court. In the event, that objection was the subject of a compromise by which RPC, the solicitors acting for Associated Newspapers Ltd., undertook not to publish or cause to be published: (1) any reference, including their names, to any matter concerning Mrs. Bannatyne's children; (2) information from any confidential documents, including witness statements or affidavits, created or disclosed by Mrs. Bannatyne, but not Mr. Bannatyne, within the divorce and financial remedy proceedings between the couple; and (3) any reference to the payments which formed part of the settlement which Mrs. Bannatyne received or was to receive from her former husband, including (but not limited to) the quantum, structure and timing of those payments, and the details of any financial remedy order of the court. For the avoidance of doubt, nothing in that undertaking was to prohibit publication of the fact of the settlement having been reached.

Mr. Wilson emphasises the need to uphold the confidentiality of the divorce financial remedy proceedings, and he submits that that need outweighs the interest of Associated Newspapers Ltd. in unrestricted press access to the statements of case. He refers to the important policy considerations, which were identified by Mr. Justice Mostyn in the case of DL v SL [2015] EWHC 2621 (Fam), in maintaining the confidentiality of divorce financial remedy proceedings. He submits that those considerations outweigh journalistic freedom of expression. He has taken me to paras. 1, 2, 7, 8-13, 16 and 23 of Mr. Justice Mostyn's judgment, and also to para. 10. Mr. Justice Mostyn explained that there were some categories of court business which were so personal and private that in almost every case where anonymisation was sought, the right to privacy would trump the right to unfettered freedom of expression. Those cases were those where the subject matter of the proceedings could rightly be characterised as "private business". Mr. Justice Mostyn acknowledged that there were exceptions to this general rule, one of which was where the facts demonstrated disgraceful conduct; and he instanced the case of Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, reported at [2011] 1 FLR 1427. At para. 11, Mr. Justice Mostyn said that financial remedy proceedings were quintessentially private business and were therefore protected by the anonymity principle. He set out the basis for that. One of the bases was that the process was said to involve the extraction of highly personal and private information under compulsion, which the recipient might not use save for the purposes of the proceedings. At para. 12 it was said that those considerations pointed powerfully to the characterisation of financial remedy proceedings as private business, entitling the parties to anonymity as well as to preservation of the confidentiality of their financial affairs.

Mr. Wilson submitted that in the case of Allan v Clibbery [2002] EWCA Civ 45 the Court of Appeal had stressed the importance of maintaining the confidentiality of information disclosed under the compulsion of divorce financial remedy proceedings and protecting it from publication by anyone without leave of the court. He referred, in particular, to what was said by Dame Elizabeth Butler-Sloss, the President, at para. 73, where she said, in terms, that the implied undertaking of confidentiality extended to voluntary disclosure in what were then ancillary relief proceedings, to the information contained in the documents, and to affidavits and statements of truth and witness statements. Mr. Wilson emphasised that the standard form of order prohibiting the media from publishing any report of a financial remedy case extended to any of the parties' financial information, whether or not of a personal business nature, including, but not limited to, that contained in their voluntary disclosure. Mr. Wilson emphasises that the witness statements, and other documents to which the statements of case refer, were all made for, and in the course of, private financial remedy proceedings, and under compulsion. The effect of granting inspection of the statements of case, in those particular respects, to the press would be to place in to the public domain confidential information about the divorce proceedings and the terms of Mr. and Mrs. Bannatyne's settlement which would undermine the private and confidential nature of the proceedings and would be detrimental to the principle of frank disclosure on which divorce financial remedy proceedings depend. It would be wrong for the anonymity, to which Mr. and Mrs. Bannatyne were entitled in their divorce financial remedy proceedings, to be undermined by the references made in the statements of case in these wholly unrelated proceedings. He says that the applicant has acknowledged the confidential character of the material in the divorce financial remedy proceedings in the undertaking previously cited, which it has already given to Mrs. Bannatyne. The fact that Mr. Bannatyne himself is well-known does not mean that those principles do not apply to him, and in fairness they should. Mr. Wilson refers to what was said by Mr. Justice Mostyn (at para. 14 of his judgment) to the effect that the question of whether a party's private affairs should be laid bare in the national press should not depend on whether the report of the case is thereby more newsworthy and therefore likely to gain a higher circulation for the publisher.

Mr. Wilson submits that the interest in reporting is outweighed by the competing interest in maintaining the privacy and confidentiality of the divorce financial remedy proceedings and, in any event, is capable of being satisfied by the disclosure to the applicant, and any other members of the press, of edited versions of the statements of case which maintain the confidentiality of the divorce financial remedy proceedings whilst giving the applicants sufficient access to the matters relating to the issues of conduct, business culture and governance which form the subject-matter of the dispute between Mr. Armstrong and Mr. Bannatyne and Bannatyne Fitness Ltd.

In the course of his oral submissions, Mr. Wilson reiterated that Mr. and Mrs. Bannatyne had had to give full and frank disclosure of their financial means but had done so in a way which was protected from further disclosure by the implied undertaking of confidentiality. That was a matter capable of protection by the court. Mr. Wilson submitted that the opportunistic disclosure by Mr. Armstrong of confidential financial matters, to which he had been privy as a witness for Mr. Bannatyne, had not destroyed the confidentiality of those matters to the world at large. His disclosures had not put their subject-matter in to the public domain. The terms of the consent order sanctioned by Mr. Justice Simon had ensured that Mr. and Mrs. Bannatyne's financial position would not be adversely affected by what had previously taken place in the course of the financial remedy proceedings. He emphasised that before the financial remedy proceedings had been concluded by the settlement between Mr. and Mrs. Bannatyne, both Mr. Bannatyne and Mr. Armstrong had made a clean breast of their previously misleading evidence. They had, as Mr. Wilson put it, repented, and they had corrected their previously false testimony. Mr. Bannatyne had enjoyed a genuine change of heart, albeit admittedly after discussions he had had with Mr. Armstrong.

With the knowledge that that authority would be relied upon by Mr. Wolanski, Mr. Wilson addressed me on the case of Lykiardopulo v Lykiardopulo. He emphasised that that was a case about the privacy of a judgment. The effect of the case was that those parts of the judgment which revealed litigation misconduct were allowed to be published. I was taken to passages in the leading judgment of Lord Justice Thorpe, in particular at paras. 1, 33, 36, 38 and 73, and to virtually the whole of the concurring judgment of Lord Justice Stanley Burnton. Mr. Wilson emphasised that the appeal in that case had raised a narrow point, which was how a Family Division judge should decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties had conspired to present a perjured case. At para. 38 Lord Justice Thorpe had asked rhetorically what should be the judicial response to unearthing a fraud on the court. He had said that each case would depend on its particular context and the degree of iniquity, so that a response of general application would hardly be possible. Mr. Wilson laid particular emphasis upon what had been said by Lord Justice Stanley Burnton at para. 76:

Mr. Wilson submitted that Mr. Armstrong's use of the material which is sought to be redacted from the statements of case has not yet put it in to the public domain. He submitted that the judgments in Lykiardopulo v Lykiardopulo confirm that the general principle of confidentiality will not apply when the court gives judgment after a trial in which there has been a sustained attempt to mislead the court which has been maintained unrepentantly at trial. He submits that that principle has no application in the present case. That is because Mr. Bannatyne and Mr. Armstrong did not maintain false evidence at trial. Each had repented from their earlier misleading statements. They have made a clean breast and apologised to Mrs. Bannatyne, the legal advisers and the court. Secondly, Mr. Wilson emphasises that there has never been a trial of these financial remedy proceedings between Mr. and Mrs. Bannatyne. They were settled by consent by an order of Mr. Justice Simon, which upheld the confidentiality of the parties' evidence; and that extended to the admissions that had been made by Mr. Bannatyne of his previous attempt to mislead the court.

Mr. Wilson submitted that it would not be safe for the court to assume that there would be an extensive cross-examination of Mr. Bannatyne as to these matters at any eventual trial of these proceedings and this petition because many of the matters have already been admitted by Mr. Bannatyne in the course of his defences. He has admitted many of the matters complained of, although he disputes their characterisation by Mr. Armstrong. Mr. Armstrong's use of the material should not be allowed to deprive it of the confidentiality which otherwise attaches to it by law. Mr. Wilson submits that there is no public interest in publicising admissions and apologies. He submitted that confidentiality has not been abused in the present case, and that publicity would deter others from admitting matters of which they have repented.

Mr. Wilson also referred to the undertaking that Associated Newspapers Ltd. had proffered to Mrs. Bannatyne, and he submitted that a similar facility should be offered to Mr. Bannatyne, otherwise there is a danger that any reporting by the press would result in unfair and unbalanced reporting. First, Mr. Bannatyne would not be able to report that the contingent liability under the contingency agreement had been left out of account when the parties had agreed the compromise of Mrs. Bannatyne's financial remedies. That can be illustrated by reference to para. 99 of the points of defence to the unfair prejudice petition. Mr. Bannatyne would not be in a position to publicise the facts mentioned in para. 99(b), that, pursuant to the consent order made in the divorce financial remedy proceedings, first, the valuation of the company for the purposes of those proceedings had not taken into account the company's contingent obligations under the contingency agreement, and, secondly, that each of Mr. Armstrong, Mr. Bannatyne and the company had entered into a deed of priorities under the terms of which the company's obligations arising under the contingency agreement had been deferred and postponed pending final satisfaction of the financial provision made therein. Because of the undertaking they had entered into in favour of Mrs. Bannatyne, Associated Newspapers Ltd. would be precluded from reporting that aspect of the matter. Secondly, Mr. Wilson emphasised the unfairness to Mr. Bannatyne, who would remain bound by his confidentiality obligations to his wife, whilst Mr. Armstrong would be free from any corresponding restraint. Because of his undertaking to his former wife, Mr. Bannatyne would never have an effective right of reply. There would thus be no even playing field, and no prospect of balanced reporting.

Mr. Wolanski opposes Mr. Bannatyne's application for redaction on the following grounds: First, that there is a very strong presumption in favour of open justice. Departures from open justice, such as that sought by Mr. Bannatyne, can only be justified in exceptional circumstances, and when they are strictly necessary as measures to secure the proper administration of justice. The court must be satisfied that nothing short of the exclusion of the public can achieve justice. It is said that no such exceptional circumstances apply here.

Secondly, it is said that the grounds upon which Mr. Bannatyne seeks redaction are misconceived. First, the fact that the underlying proceedings include an unfair prejudice petition makes no difference to the operation of the open justice principle. The decision of the Court of Appeal in the case of Global Torch v Apex Global Management Ltd. and Guardian Newspapers Ltd. [2013] EWCA Civ 819, [2013] 1 WLR 2993, was an unfair prejudice petition case yet there was no suggestion there that the principles of open justice did not apply equally to such cases as to any other form of litigation. Secondly, it is said that there is no blanket confidentiality which attaches to matters raised during divorce proceedings. Whilst it is correct that disclosures made under compulsion during divorce proceedings are subject to an implied undertaking of confidentiality, on the authority of the Lykiardopulo case that principle does not apply where a litigant has supplied false information during proceedings. Moreover, it is said that the courts have an inherent power to control the dissemination of information from proceedings, overriding any confidentiality that might otherwise apply.

Thirdly, it is said that certain of the matters which Mr. Bannatyne seeks to redact do not, in any event, emanate from disclosures made under compulsion by Mr. Bannatyne in the divorce proceedings. The fact that Mr. Armstrong says he was persuaded to give false evidence by Mr. Bannatyne does not result from the disclosures made, whether compulsorily or voluntarily, in the financial remedy proceedings.

Fourthly, it is said that Mr. Bannatyne has, even after the undertakings he had given in the court order approved by Mr. Justice Simon, publicised his divorce, mounting a vituperative campaign against his former wife which, it is said, has been very extensively reported in the media. His complaints have extended to the privacy imposed upon family cases, including upon himself. It is said that this demonstrates that his application has nothing to do with any concerns over confidentiality, and that even if he did entertain such concerns, it is difficult to see how they could apply to the matters which he seeks to redact rather than, say, to matters concerning his children, which do not feature at all in the statements of case.

Mr. Wolanski took me at length through the judgments in the Global Torch case, the starting point of which was said to be the open justice principle. He took me to passages from the headnote and from the judgment of Lord Justice Maurice Kay, at paras. 4, 11, 13, 20 and 22. In the course of that review of Lord Justice Maurice Kay's judgment, Mr. Wolanski emphasised that financial remedy proceedings fall outside the established categories of case where the open justice principle must bow to some other countervailing consideration.

Mr. Wolanski submitted that the redactions sought by Mr. Bannatyne would constitute a significant departure from the open justice principle by (1) depriving the media of the ability to report the claims made in the statements of case and (2) preventing the proper reporting of future hearings in the case. He submitted that to give effect to the redactions, the media would presumably need to leave the court at various junctures, thereby giving the public only a partial picture of the case brought by Mr. Armstrong against Mr. Bannatyne, and requiring redactions to be made to any judgment. It is said that Mr. Bannatyne, who, Mr. Wolanski emphasises, has given no evidence before this court, has put forward no justification for such departures. He has not, for example, served any evidence claiming that there are matters of particular commercial private sensitivity that might justify the redactions. The thrust of Mr. Wolanski's submission is that no confidentiality can attach to the passages sought to be redacted since they are said to disclose a dishonest attempt to mislead a party to litigation, and the court, in matrimonial financial relief proceedings. If Mr. Bannatyne were to claim that he was concerned about the public discussion of his divorce, such a claim would ring hollow given that he has spoken widely about that divorce.

Mr. Wolanski provided various examples at para. 28 of his written skeleton argument. Mr. Bannatyne's contention that the confidentiality surrounding family proceedings justifies the redactions is said to be particularly ironic given his vehement criticism of the privacy surrounding such divorce cases. Particulars are given at para. 29 of Mr. Wolanski's written skeleton. Certain parts of the redactions are said not in any event to emanate from materials disclosed under compulsion in the divorce case. For example, the allegation that Mr. Bannatyne put Mr. Armstrong under pressure to lie for him in the divorce case is not a matter arguably within the scope of disclosure given by Mr. Bannatyne, nor is the assertion that he backdated the contingency agreement. It is only Mr. Bannatyne's apparent admission that he lied that formed part of the divorce case. Thus, it is said that Mr. Bannatyne's application for redaction is no more than an attempt to avoid embarrassment. He is said to be seeking special treatment on a basis which is unprincipled, unsupported by evidence, and unsupported by the authorities. Associated Newspapers Ltd. should therefore be permitted access to all statements of case on the court file in unredacted form.

In the course of his oral submissions, Mr. Wolanski emphasised that any report of the statements of case will have to be presented fairly and accurately; and that there was a grave risk, if it was not, that the applicant could be sued for defamation. If this application by the respondents were to succeed, the applicant would have to limit its reporting of these proceedings, ignoring what is said to be a crucial element of what, on Mr. Armstrong's case, is the breakdown of the commercial relationship between himself and Mr. Bannatyne; and it would produce an inaccurate summary of what Mr. Armstrong's complaint is all about. Mr. Wolanski emphasised that there is no confidence in iniquity; there is no entitlement to confidentiality in relation to false documents provided to a court because such matters are outside a litigant's private life, and entitled to protection under Article 8 of the European Convention. The fact is that Mr. Bannatyne had admitted lying in a document verified by a statement of truth. The fact that serious allegations are being made is not sufficient to derogate from the principle of open justice.

Mr. Wolanski went through, paragraph by paragraph, the passages sought to be redacted from the points of claim in the unfair prejudice proceedings, explaining why redaction would be inappropriate. Turning to the consent order, Mr. Wolanski emphasised that Mr. Armstrong was not bound by any undertakings. In the light of the disclosures already made by Mr. Bannatyne to the press, there must be questions as to whether he has already broken the undertakings which he had given to his former wife. There is no indication that these present proceedings had entered into any consideration by Mr. Justice Simon, nor is there any indication as to whether that judge had been aware that at some previous stage in the financial remedy proceedings, Mr. Bannatyne had given false evidence. Thus, although of historic interest, it was said that the undertakings accepted by Mr. Justice Simon were of very limited relevance, and amounted to little more than water under the bridge.

Mr. Wolanski emphasised that what was being sought by the respondents was a significant derogation from the open justice principle which was not justified by the principles laid down by the Court of Appeal in the Global Torch case. There was no established category of derogation from the open justice principle in relation to financial remedy proceedings; and, in any event, any such derogation did not apply to the key allegations that Mr. Armstrong was levelling against Mr. Bannatyne, namely that he had been prepared to mislead the court, because of the relevance of the iniquity exception.

In his brief reply, Mr. Wilson emphasised that the Global Torch case had not been concerned with the publication of confidential material whereas here that issue was engaged. Mr. Wilson also emphasised that here the relevant disclosures made by Mr. Bannatyne had been part of the inquisitorial process within the financial remedy proceedings, and clearly fell within the scope of undertaking (q) in Mr. Justice Simon's order.

Those essentially were the submissions. What I have to undertake is an evaluation of the competing principles underlying the requirements for justice to be open, and for parties to financial remedy proceedings, in the context of a divorce, to be able to pursue those remedies, and, if possible, to compromise their claims, with reasonable assurances of privacy from disclosure in public and by the media.

I do not accept Mr. Wolanski's submission that the confidentiality attaching to disclosure in financial remedy proceedings has no application here because the disclosure was of a voluntary kind. It is clear from para. 73 of the President's judgment in Allan v Clibbery that the implied undertaking of confidentiality extends to voluntary disclosure in financial remedy proceedings in the context of divorce. However, I am satisfied that the iniquity exception, recognised in the case of Lykiardopulo v Lykiardopulo, is engaged in the present case. At para. 37 of his judgment in that case, Lord Justice Thorpe recognised that breaches by commission of the principle of full and frank disclosure in financial remedy proceedings are more serious than breaches by omission. He said that an omission, once detected, can be excused as an oversight. A breach by commission was plain perjury - or, I would add, contempt of court - and thus risks serious consequences. At para. 38 Lord Justice Thorpe recognised that a response of general application to unearthing a fraud on the court was hardly possible, and that each case would depend on its particular context and the degree of iniquity. At para. 77 of his judgment, Lord Justice Stanley Burnton referred to the submission that the protection of confidence was the result of a pact between the litigant and the court. He acknowledged that that might be a helpful description of the principle but, if so, he said that the husband and his witness had not kept to their part of the pact. In matrimonial ancillary relief proceedings, the obligation of the parties was to disclose the facts regarding their finances. In the instant case, what had been put forward by the husband and his witness had, in substance, been not the facts but fiction. The judge had found that they had both sought to mislead the court, to the extent of producing, and relying upon, documents that had not been sent on the dates they purported to bear and which they testified had been sent and received. It seems to me that that is similar to the admitted device in the present case of producing a written contingency agreement, supported by a board minute, bearing dates in January 2010 when, in fact, the documents had truly been generated in September 2011. At para. 80 of his judgment, having previously acknowledged that litigants had a right to respect for their private life under Article 8, and that in order to promote full and frank disclosure, and because the information in question had been provided under compulsion, the general practice of the Family Division had been for judgments in ancillary relief cases not to be published or, if published, to be anonymised, Lord Justice Stanley Burnton had recognised that different considerations applied where the information and documents provided by a litigant were false. Continuing at para. 80 he said this:

Mr. Wilson seeks to distinguish those observations on the footing that here Mr. Bannatyne and his witness had repented. They had not maintained their false evidence up to trial, but had each repented from their earlier misleading statements, and they had each made a clean breast, and had apologised for their earlier conduct. I reject Mr. Wilson's submission that there is no public interest in such circumstances in publicising what has happened. Mr. Wilson submitted that it would deter people from making appropriate admissions if they were to know that publicity would attach to such admissions. In my judgment, there is a public interest in making it clear that if someone does provide false evidence to a court, with a view to misleading the court for their own financial gain, or for the financial gain of an associate, then it will do them no good to admit that fact without fear of any repercussions. In my judgment, the public interest lies in exposing attempts to mislead the court, even if the person making such attempts then repents of what he has done and corrects the situation. There can be no public interest in inhibiting full, frank and honest disclosure to the court; but there is a public interest in encouraging full, frank and honest disclosure, and disclosure which is not full, frank and honest should be publicised.

Against that background, I turn to the specific paragraphs of the points of claim in the unfair prejudice petition. I can see no principled objection to the media having unrestricted access to the contents of those elements of paras. 46, 48, 49, 50, 54.2 and 56 which Mr. Wilson seeks to have redacted. The same applies to the relevant passage of para. 87. So far, however, as paras. 77 and 79-82 are concerned, it does seem to me that those are matters which fall within the scope of the undertaking already given to Mrs. Bannatyne's solicitors that there will not be published, or caused to be published, any reference to the payments forming part of the settlement which Mrs. Bannatyne received or was to receive from Mr. Bannatyne, including (but not limited to) the quantum, structure and timing of payments and the details of any financial remedy order of the court. Associated Newspapers Ltd. has already undertaken not to publish or cause to be published such matters, and therefore it would not be appropriate for those paragraphs to be disclosed in unredacted form. In my judgment, the redactions suggested by Mr. Wilson in relation to those paragraphs, 77 and 79-82, are necessary, appropriate and proportionate; but I would allow the unredacted disclosure of the other paragraphs of the points of claim.

Hopefully with the guidance provided by this judgment it will be possible for the parties to reach agreement on what should be redacted from the other statements of case, but, if not, then I am prepared to receive written submissions on any differences that may emerge. That is the conclusion of my judgment.

It seems to me that, there being no issues of conduct that have been raised, and the court not having been alerted to any admissible offers to settle, substantially the successful party here is the applicant. There is no reason why in those circumstances costs should not follow the event. I acknowledge that there will be some minor redactions, but the subject of redaction has been something of a moving target so far as the effective applicant, namely Mr. Bannatyne, is concerned. No doubt had the redactions been limited to those which I have said are justified, it might well have been possible to reach some form of compromise which would have avoided the need for this hearing. By far the successful party is the applicant, in the sense of Associated Newspapers, and there is no reason why the limited success of Mr. Bannatyne should militate against the usual order that the costs should follow the event. So I will order Mr. Bannatyne to pay the costs of Associated Newspapers. I think it is only right that it should be Mr. Bannatyne himself who should bear the costs, rather than himself and Bannatyne Fitness Ltd.