Behind closed doors
20 February 2013 | By Katy Dowell
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A high-stakes case that could damage relations between the UK and Saudi Arabia has brought the issue of closed courts back into the spotlight, says Katy Dowell
The High Court refused to accept arguments from Clifford Chance that a London trial could damage relations between the UK and Saudi Arabia last week in a dispute that will put relations between the countries under the spotlight.
It is the latest in a number of pre-trial matters to be dealt with by the court ahead of the substantive hearing between the parties. Next on the agenda is whether two Saudi princes, who are defending the claim, could in fact be covered by diplomatic immunity.
Mr Justice Morgan refused to go into the finer detail surrounding the dispute pending the outcome of an appeal, but he did have some choice words for the legal team led by Clifford Chance, which had wanted the case heard in private for fear of reprisals.
Clifford Chance partner Ian Roxborough is representing Prince Mishal al Saud, the former Saudi minister of defence, and his son Prince Abdulaziz bin Mishal bin Abdulaziz Al Saud in the ongoing dispute. The central allegations, which reportedly raise questions of criminal wrongdoing, are referred to by the court only as the ‘Beirut’ and the ‘Nairobi’ transactions.
According to Roxborough, such is the seriousness of the case that the defendants risk “death and reprisals” should the dispute be heard in open court. The lawyer provided the court with his witness statement supporting contentions that the case would mean a new low for relations between London and Riyadh. Furthermore, he added, it could have an adverse effect on relations between the US and Saudi Arabia.
“[The press court reporter] is, I verily believe, the watchdog of justice. If he is to do his job properly and effectively we must hold fast to the principle that every case must be heard and determined in open court. It must not take place behind closed doors. Every member of the public must be entitled to report in the public press all that he has seen and heard. The reason for this rule is the very salutary influence which publicity has for those who work in the light of it…”
Lord Denning’s The Road to Justice (1955)
According to the judgment, however: “Mr Roxborough did not state that he had ever spoken to Prince Abdulaziz or Prince Mishal or taken direct instructions from either of them.”
The defendants are not alone in wanting to have the case heard behind closed doors. An application was also submitted by the claimants in the case, Global Torch, which had argued that the case could damage its reputation.
As Morgan J highlighted in his ruling, to have a case heard in camera the application 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,” the judge stated.
As to assertions made by the solicitor that the case could be damaging to the health of Prince Mishal, the judge stated flatly: “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.”
He continued: “I also consider that the suggestion that the two princes will be vulnerable to physical attacks is not established by clear and cogent evidence. […] 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.”
The Financial Times and Guardian News and Media had intervened in the action, opposing the application to have the case heard in private and wanting access to court documents.
Every day the courts hear cases that could have an impact on a litigant’s reputation, the issue is whether the damage to their reputation outweighs the need for open justice, the court said.
“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,” the judge said.
The media outlets had wanted access to the documents for proper journalistic reasons, Morgan J ruled, adding: “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.”
The case will now go to the Court of Appeal for further deliberations while separately the court will hear an application for sovereign diplomatic immunity, which, the princes say, shields them from UK liabilities.
Open justice is the heartbeat of the domestic legal system. It is the very reason why international litigants make London their jurisdiction of choice. This was a case that attempted to derail the principle by threatening the relations between states. Justice must be seen to be done, however, and Morgan J has demonstrated the judiciary’s passion for it.
The legal line up:
For the applicants Global Torch, Prince Abdulaziz, Prince Mishal and Mr Abu-Ayshih: 5RB’s Mark Warby QC instructed by Clifford Chance partner Ian Roxborough
For Prince Abdulaziz and Prince Mishal: Blackstone Chambers’ Timothy Otty QC instructed by Clifford Chance partner Ian Roxborough
For Mr Abu-Ayshih: 4 Stone Buildings’ Christopher Harrison and Alexander Cook instructed by Clifford Chance partner Ian Roxborough
For the respondents Apex Global Management and Mr Almhairat: Blackstone Chambers’ Robert Howe QC, Serle Court’s Daniel Lightman, Blackstone Chambers’ Shaheed Fatima and Paul Adams of Serle Court HowardKennedyFSI partner Steven Morris
For Guardian News and Media Ltd and The Financial Times: Doughty Street’s Guy Vassall-Adams instructed directly