A High Court judge has decided not to wait for the Supreme Court’s upcoming decision on third-party access to court documents and denied Bloomberg News access to a confidential document referred to during trial.
Mrs Justice Cockerill said she had been unable to ascertain when the Supreme Court would hand down judgment in Cape Intermediate v Dring – having heard arguments in February – and so “I consider that I should decide this matter now, applying the principles in the Court of Appeal’s decision”.
Ayoub-Farid Michel Saab v Dangate Consulting Ltd and others involves the owners of a Cypriot bank suing two British private investigators for breach of confidentiality in disclosing to regulators the outcome of an investigation into money laundering allegations that they had been commissioned by the bank to undertake.
Judgment is awaited, and Cockerill J was dealing with a post-trial interlocutory application made by Bloomberg to obtain a copy of a sensitive and confidential document known as the ‘Kroll Iago report’.
The media group argued that the report was referred to in open court on a number of occasions.
The judge said Dring required the court to look carefully at both the nature of the document – such as to whether it formed part of the court’s records, like a pleading – and the way in which it was used during the trial.
“An application such as the present one is not one for a formal document such as a pleading. Dring (at least for now) establishes that it is not for a part of the ‘records of the court’ for the purposes of CPR 5.4C because trial bundles and attachments to witness statements are not within the ambit of this rule.”
This meant the application was being made under the inherent jurisdiction of the court. The aim of open justice in this context was, Cockerill J said, to ensure that “an interested person can follow the trial, in the sense of knowing exactly what has been put before the court and forms part of the material on which the court will take its decision”.
This included material the judge was taken to have read, but excluded trial bundles, exhibits to witness statements, documents referenced in skeletons, as well as documents alluded to or turned up but not read, the judge continued.
“The Kroll Iago report is on this basis not one of the documents that falls within the ambit of the jurisdiction.”
It was “repeatedly referred to” only in passing, Cockerill J said, and certain assertions (which are not themselves evidence) were made by counsel as to its contents”.
Further, one of the claimants was taken to one page of it and asked whether certain manuscript annotations were made by him. He was not asked questions about the text of the report.
“In those circumstances it is my conclusion that it would be contrary to the principles enunciated in Dring to permit access to the document.
“Further, if (contrary to this conclusion) the document did engage the principles in Dring, it would do so by the slimmest of slim margins.
“In those circumstances I would have had a very careful eye as to whether it would be appropriate to exercise the discretion in favour of allowing access to the document.”
The judge said she would have concluded not to do so in the light of “the marginal nature of the engagement of the jurisdiction, including the large amount of material which on no analysis could be said to have been referred to me”.
She also cited the fact that the report was a confidential document, and formed part of the evidence in a trial for breach of confidentiality, and that the report could apparently be prejudicial to a number of people, including non-parties, and potentially infringe their article 8 rights “unless a complicated process of redaction were embarked upon”.