Case No: 5942 of 1998

Neutral Citation Number: [2012] EWHC 1885 (Ch)
IN THE HIGH COURT OF JUSTICE 
CHANCERY DIVISION

Strand
London
WC2A 2LL

Date: Wednesday, 30th May 2012

Before:

THE HONOURABLE  MR JUSTICE MORGAN
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B E T W E E N:

PRESSDRAM LIMITED

and

CRAIG WHYTE
DAVID ANDERSON
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Transcript from a recording by Ubiqus
Cliffords Inn, Fetter Lane, London EC4A 1LD
Tel: 020 7269 0370
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MR D LEMER (instructed by Davenport Lyons) appeared on behalf of the Applicant
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JUDGMENT

MR JUSTICE MORGAN: 

1.	This is an application by Pressdram Limited. It is made in proceedings which had been brought under the Company Directors Disqualification Act 1986.  The proceedings under the 1986 Act were brought by the Secretary of State for Trade and Industry by an originating summons filed on 20th October 1998 and resulted in an order being made by Mr Registrar Simmonds on 13th June 2000.  This application, of course, is being made many years after those events, that is in May 2012.  The reason for the interest, some 12 years or so after the earlier events is that the order made on 13th June 2000 in relation to a Mr Craig Whyte was that he be disqualified as a director for a period of seven years.  The evidence which is before me shows that Mr Whyte’s connection with limited companies and their financial arrangements has become a matter of public interest and public concern in more recent times.
2.	Pressdram Limited, as is well known, is the name of the company responsible for publishing Private Eye.  Essentially this application is made by Private Eye to obtain access to documents on the court file, principally relating to Mr Whyte in the Directors Disqualification Proceedings.
3.	The nature of the proceedings under the Company Directors Disqualification Act 1986 is well known.  The statute sets out the grounds on which a director may be disqualified.  Proceedings are brought by the Secretary of State. They are based on the fact that there is a matter of public concern and interest in relation to certain individuals continuing to be directors of limited companies.  The public element is also emphasised by Section 18 of the 1986 Act which provides for there to be a register of disqualification orders which is available to be consulted.  
4.	The application before the court today is made under the Civil Procedure Rules, Rule 5.4C (2).  That provides, in short, for a non-party, such as Pressdram Limited, to obtain from the records of the court a copy of certain documents filed by a party to the relevant proceedings or a communication between the court and a party or another person.  Rule 5.4C has been amended since the directors disqualification proceedings in this case and the earlier form of Rule 5.4C is set out in the Practice Direction 5A – Court Documents.  However, it is not necessary to compare the former and the present versions of Rule 5.4C because the power which I have under 5.4C (2) appears to apply to the records of the court whether they relate to a recent court proceeding or a court proceeding which is further in the past.  
5.	Staying with the nature of the court’s power to give permission under the relevant rule, the power is further dealt with in the Practice Direction to which I have referred. In paragraph 4.3 of that Practice Direction it is provided that an application under, amongst other things, Rule 5.4C (2) for permission to obtain a copy of a document must be made under Part 23 and the application notice must identify the document or class of document in respect of which permission is sought and the grounds relied upon.  The notes in The White Book indicate that that provision in the Practice Direction was considered in an earlier decision of the court.  The White Book refers to the decision of Mr Justice 
Moore-Bick, as he then was, in Dian AO v Davis, Frankel & Mead [2005] 1 WLR 2951.  Indeed reported next to it in the Weekly Law Reports is the decision of Mr Justice Park in Chan U Seek v Alvis Vehicles Limited (Guardian Newspapers Limited intervening) [2005] 1 WLR 2965.  Both of those cases appear to have some bearing on the way the court should go about identifying documents for which permission is given under the relevant rule.
6.	I have not been taken to those cases in any detail but I see that in the first of them, that the court disallowed an application where the applicant sought an order entitling it to inspect the file and take from the file documents in which the applicant turned out to be interested.  Instead it was held that the right thing to do was for the applicant to identify the documents it sought with reasonable precision and then the court would grant or withhold permission in relation to specified documents.  In that case it was made clear, at paragraph 34, that the degree of specification required could be satisfied by specifying a class of documents where there would not be difficulty on the facts in holding whether a document did, or did not, come within the relevant class.  
7.	The approach that the court should adopt to an application under this rule is considered in some detail in the notes to The White Book, in particular, at pages 144 to 145.  There is a lengthy note under the heading, Open justice - availability of documents to non-parties, which provides helpful guidance.  I have taken into account what is said in that note.  
8.	On the application before me I have been also asked to take account of a very recent decision of the Court of Appeal which is the R (on the application of the Guardian News and Media Limited) v City of Westminster Magistrates’ Court & The Government of the United States of America and Article 19.  The neutral citation number is [2012] EWCA Civ 420.  That case did not concern an application under the Civil Procedure Rules; it related to extradition proceedings which are, of course, not governed by those Rules.  There had been a difference of view between the Divisional Court, which withheld the order sought by The Guardian newspaper and the Court of Appeal as to whether the Court had power to permit a newspaper to inspect certain documents and obtain copies of them, in relation to the extradition proceedings.  The important statement of principle which seems to me to apply to the present jurisdiction also is stated in paragraph 85 of the judgment of Lord Justice Toulson in these terms:  
‘In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle.  Where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.  However, there may be countervailing reasons.  In company with the US Court of Appeals second circuit and the Constitutional Court of South Africa I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds for opposition need to be in order to outweigh the merits of the application.  The Court has to carry out a proportionality exercise which will be fact specific.  Central to the Court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose, and conversely any risk of harm which access to the documents may cause to the legitimate interests of others.’

9.	Before leaving that case I draw attention to the documents which were being sought in that case.  The documents are summarised in paragraph 10 of the judgment of Lord Justice Toulson, they included opening notes and skeleton arguments, affidavits or witness statements presented by various persons, and then further extended to certain defined classes of correspondence.  There did not appear to be any issue raised before the Court of Appeal as to that manner of specifying the documents in that case.  At paragraph 91 of his judgment Lord Justice Toulson directed that The Guardian should be allowed access to the documents which it sought.  
10.	As to the documents which are sought in the present case, the application notice sought the following order:  First that the applicant be provided with a copy of the originating summons in the directors disqualification proceedings and any order made by the court in those proceedings and further that the applicant be permitted to inspect the court file in the proceedings and to obtain a copy of any document which it requests following inspection of that file.  At an early stage in the argument I raised with Counsel for Pressdram Limited the question as to whether it was appropriate to make an application in that form and whether further it was appropriate for me to make an order in those terms, having regard to the terms of the Practice Direction and the authorities to which I have referred.  Counsel, in the light of that question, stated that Pressdram Limited would be content to have an order from the court which specified more precisely the documents which were sought and which would fall short of an order entitling Pressdram Limited to inspect the file generally.  The documents that were specified in that way were as follows:  One, the originating summons in the directors disqualification proceedings; Two, the evidence filed by the Secretary of State in support of its application pursuant to Rule 3 of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987; Three, the evidence, if any, filed by Mr Craig Whyte under Rule 6 of those rules; Four, the evidence, if any, filed by a second defendant to the directors disqualification proceedings, namely a Mr David Anderson, filed by him under Rule 6 of those rules; Five, any further evidence together with exhibits filed by the Secretary of State or Mr Whyte or Mr Anderson in readiness for the substantive hearing which led to the order being made by Mr Registrar Simmonds on 13th June 2000; and finally any skeleton arguments or written submissions, whether by way of opening or closing submissions, relied upon by any of the parties to the directors disqualification proceedings, provided that those skeleton arguments are written submissions relating to the substantive hearing which led to the order of 13th June 2000.
11.	It seems to me that that description or degree of specification of the documents which are sought will suffice for the purposes of the Practice Direction and for the purposes of the order which I am asked to make.  Having identified the documents, which are to be the subject of any order, I now must apply paragraph 85 of the Guardian case to which I have referred.  The default position is that access should be permitted to the documents to which I have referred.  I am satisfied in this case that access is sought for a proper journalistic purpose and so Lord Justice Toulson would say the case for allowing access is particularly strong.  I must take into account any countervailing reasons.  Mr Craig Whyte and Mr David Anderson have been served with these proceedings and have chosen, as is their right, not to participate in this hearing.  They have not written to the court identifying countervailing reasons, they have not put in any evidence for that purpose.  They have therefore not suggested to the court that there are any countervailing reasons.  On examination of the material before me, I am not myself able to see that there any countervailing reasons, in all the circumstances of the case.  That means that I am not troubled by the need to carry out a balancing exercise between factors that go one way and factors that go another way.  The only factors in play are those which are in favour of the making of the order which is sought.
12.	For those reasons I will make an order, a minute will have to be lodged by counsel for the applicant, but the order will provide for the applicant to be provided with copies of the documents which have been specified.  The application before me accepts that the applicant should pay the costs of copying any document so identified.  That seems to me to be appropriate.  I think that no further directions or orders are needed and that is the order I will make.
Is there anything else that needs to provided for?
MR D LEMER:  My Lord, I am asked to make an application for costs in this matter against Mr Whyte, the reasons for that is as follows:  Whilst accepting that the applicant did need the permission of the Court to this matter, considerable effort has been made by the applicant in terms of production of evidence and research in light of Mr Whyte’s failure to respond to any correspondence and concerns that at a very late stage objections may be raised, the matter could have been dealt with in a significantly more cost effective way had he at any earlier point indicated as indeed Mr Anderson has done, that he wasn’t going to be actively participating in the proceedings.  It was on that basis that an application for costs has been made.
JUSTICE MORGAN:  Is there any precedent for costs being made that you aware of or can draw my attention to?
MR D LEMER:  My Lord, no.  I am unable to draw your attention to any.
JUSTICE MORGAN:  My reaction is that you have to come here to get an order.
MR D LEMER:  My Lord, yes.
JUSTICE MORGAN:  You are not entitled to it as of right; you have to satisfy the Court that the Court should make it.  If you ask Mr Whyte or you tell him you are going to apply for the order, I think he is entitled to say, well he will leave it to you to satisfy the Court that that is what should happen.  Plainly if he had turned up and this had turned into a three-day hearing, I might have taken the view that any extra costs should be paid by him, if he were to fail.  However, he has not turned up so you have an unopposed application.  I think in those circumstances that it is just part of the costs of running your magazine.
MR D LEMER:  My Lord [that is my?] application.
JUSTICE MORGAN:  I hope you sell more copies as a result and you will benefit accordingly.  Right then I think that is all I will do.  I will rise.
Court rises.