The Court of Appeal has refused to quash an order preventing two Saudi princes from having their case heard behind closed doors.
Lord Justices Maurice Kay, Richards and Briggs unanimously dismissed the appeal in its entirety.
5RB’s Mark Warby was instructed by Irwin Mitchell for the appellants Prince Mishal al Saud, the former Saudi minister of defence, and his son Prince Abdulaziz bin Mishal bin Abdulaziz Al Saud.
The barrister put forward six points of appeal, including that the Mr Justice Morgan in his first instance ruling failed to give consideration to the reputational rights of the appellants under the European Convention on Human Rights.
He also contended that the judge had failed to give consideration to the appellants’ fair trial rights, arguing that allegations of “egregious misconduct” against the appellants had been drummed up “to extort an unfair settlement or withdrawal”.
Furthermore, Warby argued, the judge had wrongly treated the open justice principle as inherently superior to, or meriting more weight than, competing Article 8 rights.
Responding Blackstone Chambers’ Robert Howe QC, instructed by HowardKennedyFSI, and Doughty Street’s Guy Vassall-Adams, instructed directly by Guardian News and Media and the Financial Times, hit back at claims of reputational damage by the appellants.
According to the judgment the pair sought “to make light of this aspect of the case by pointing to the thinness of the evidence on reputation which is to be found in assertions made by the Princes’ solicitor”.
This referred to submissions made at the original High Court hearing by the appellants’ then lawyer, Clifford Chance partner Ian Roxborough. That ruling showed that Roxborough had contended in a witness statement that the case was so serious that the defendants risked “death and reprisals” should the dispute be heard in open court (20 February 2013). Clifford Chance did not represent the appellants at the CoA (16 April 2013).
The CoA said that it had been too technical an argument, yet still maintained the decision of the High Court.
In his substantive ruling Kay LJ referred to centenary of the decision of the House of Lords in Scott v Scott (1913) AC 417. That ruling, he said, was a beacon of common law and upheld the necessity to have open justice.
The judge concluded: “The open justice principle has universal application except where it is strictly necessary to depart from it in the interests of justice.”
He continued that to detract from the open justice principal and, in effect, “lower the bar”, there could follow a case whereby commercial disputes are heard behind closed doors.
“That would result in a significant erosion of the open justice principle,” the judge said of the precedent. “It cannot be justified where adequate protection exists in the form of vindication of the innocent through the judicial process to trial.”
The legal lineup
For the appellants Global Torch Limited
5RB’s Mark Warby QC instructed by Irwin Mitchell partner Jeremy Marshall
For the Apex respondents Apex Global Management Limited & Ors
Blackstone Chambers’ Robert Howe QC, Serle Court’s Daniel Lightman, Blackstone’s Shaheed Fatima, Paul Adams also of Serle Court instructed by Howard KennedyFsi partners Louise Bennett and Steven Morris
For the media interveners Guardian News and Media and The Financial Times.
Doughty Street’s Guy Vassall-Adams