Open justice – Article 8 – Pre-hearing access to witness statements – Non-parties
The Secretary of State had brought directors disqualification proceedings against the well-known financier Lex Greensill. The Secretary of State had lodged an affidavit in support of the claim, which set out the reasons for bringing the claim, as required under the Practice Direction and rule 3(3) of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1986. The affidavit had not yet been considered by the court at a hearing and the proceedings were at an early stage.
The claim form cross-referenced the affidavit, so that the basis of the claim was set out only in the affidavit. The affidavit had not been made public.
The Financial Times applied for pre-trial access to the affidavit so that it could identify and report on the reason proceedings had been brought against Mr Greensill.
Whether the principle of open justice entitled the Financial Times to obtain a copy of the affidavit in advance of a hearing.
The affidavit was a hybrid document that contained a statement of facts and matters which set out the basis for bringing the claim, as required by rule 3(3). The statement of facts and matters was analogous to a pleading. However, the affidavit also contained substantial amount of evidence to support the allegations.
The principle of open justice and the strong public interest in enabling the public to understand why the claim had been brought favoured disclosure of the part of the affidavit containing the statement of facts and matters. However, it was precipitous to permit disclosure of the entire affidavit at the early stage of proceedings.
This is an interesting decision on the ability of non-parties to obtain pre-hearing copies of documents that are ostensibly witness evidence lodged with the court in support of a Part 8 claim.
It demonstrates that the approach taken to non-party access to documents in the cases of Blue v Ashley [2017] EWHC 1553 (Comm) and R (Yar) v SSHD [2021] EWHC 3219 (Admin) may not always be applicable to cases in which there is no publicly available articulation of why a claim has been brought and it is clear that the claim is being contested.
