Re Bournemouth & Boscombe Athletic Community Football Club Ltd (CA)
Reference:  EWCA Civ 848;  1 WLR 2614
Court: Court of Appeal
Judge: Sir Anthony Clarke MR, Sir Igor Judge (President QB) & Buxton LJ
Date of judgment: 2 Jul 2007
Summary: Contempt - Reporting restrictions - Private hearing - Party disclosing information to journalist - s.12 Administration of Justice Act 1960 - CPR Part 39.2(3)
Instructing Solicitors: Richard Sedgley & Co (Bournemouth) for X; Duane Morris for B
X presented a winding up petition against company B. B sought and obtained an injunction restraining X from advertising and proceeding further with the petition. B successfully applied for the hearing to be conducted in private under CPR Part 39.2(3)(a) and 39.2(3)(c). The petition was later dismissed in open court. B then divulged to a journalist information relating to the private hearings and judgment. X applied to commit B for contempt.
David Richards J dismissed the application, holding that an order under the CPR that a hearing should take place in private did not automatically carry with it an order prohibiting publication of information relating to that hearing. X appealed.
Whether, where a Court chooses to sit in private under CPR Part 39.2(3), secrecy was conferred on all information relating to the proceedings, so that parties were prohibited from publicising that information.
Dismissing the appeal:
An order under CPR 39.2(3) did not have the effect of conferring secrecy upon all information in the proceedings as that would render s.12 Administration of Justice Act 1960 largely redundant. Issues of contempt could only arise in respect of an order under CPR 39.2(3) where the court also expressly prohibited the publication of information heard in a private hearing under s.12(1)(e) of the Act. The term “expressly” under s.12(1)(e) of the Act meant expressly and could not be implied by the making of an order under CPR 39.2(3). In the instant case no express order had been made and there had therefore been no contempt.
CPR 39.2(3) merely allows a court to order that a hearing be in private; it does not address the separate question of whether the publication of information relating to such a hearing is a contempt. That is dealt with by s.12 Administration of Justice Act 1960. Where, as here, the information does not fall within sub-paragraphs (a)-(d) of s.12, its publication will only be a contempt where a court has made an express order under sub-paragraph (e). This decision confirms that an ‘express’ order must be just that, and cannot be implied by an order under CPR 39.2(3).