Never mind the secrecy demands of the rich and famous, keep the barriers to open justice high
The Court of Appeal (CoA) recently upheld the centuries-old British tradition of open justice in Apex Global Management Ltd v (i) Fi Call UK Ltd (ii) Global Torch Ltd (iii) HRH Prince Abdulaziz bin Mishal bin Abdulaziz Al Saud (iv) Emad Mahmoud Ahmed Abu Ayshih (v) HRH Prince Mishal bin Abdulaziz Al Saud and Global Torch Ltd v (i) Apex Global Management Ltd (ii) Faisal Almhairat (iii) Fi Call UK Ltd.
The above cases involve cross s.994 (Companies Act) petitions in the Companies Court. Applications were made by, among others, two Saudi princes to have the petitions heard behind closed doors.
My clients, Apex Global Management Ltd and Faisal Almhairat, welcomed the judgment of the CoA in unanimously upholding the judgment of Mr Justice Morgan dismissing the applications for privacy. This upholds the principle of open justice. The case will now proceed in open court and the media – namely The Financial Times and The Guardian – have been granted access to court documents.
Open justice is a common law principle recognised by the English courts for centuries. The rule is that all court hearings should be in open court, and both the public and the media should have access. In his judgment in the above case, Lord Justice Maurice Kay quoted Lord Shaw’s observations in the House of Lords decision in Scott v Scott (1913) AC 417 that a decision to hold proceedings in secret would be “a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundation of public and private security”.
Open justice is fundamental to principles including the transparency of legal process by: ensuring evidence is exposed and tested; allowing the public access to issues of importance; the protection of civil liberties – public and media; and ensuring democratic governance and government accountability.
The CoA decision shows the English courts recognise open justice is of central importance. Public scrutiny is essential in ensuring justice is achieved. Public awareness of what happens inside courtrooms boosts confidence.
Open justice is not without exception or limitation. In this case the court had to consider whether convention rights were engaged, namely the right to a fair trial (Human Rights Act 1998 art.6), the right to respect for private and family life (art.8) and the right to freedom of expression (art.10). The courts must ensure these rights are balanced.
There must be strong contrary evidence for the interference with those rights to derogate from open justice. Such a derogation was not established in the above case.
Open justice has been tested many times by the English courts, notably with celebrities or high-profile individuals trying to obtain justice by requesting that proceedings be conducted behind closed doors.
Damage to reputation is not an exception to open justice. It does not override civil liberties or access to the administration of justice.