On 28 June 2024, ICC Judge Mullen, sitting in the Chancery Division, gave an ex tempore judgment, partially granting the Financial Times’ application for pre-hearing access to an affidavit which the Secretary of State had lodged in support of its directors disqualification claim against the financier Lex Greensill.
Under the legal framework, the Secretary of State was required to lodge an affidavit in support of its claim with the claim form. The affidavit contained a summary of the reasons why the Secretary of State had brought the claim, as well as a substantial amount of evidence supporting those reasons. There was no publicly available explanation of why the proceedings had been initiated, although it was clear that the claim was contested.
The Judge accepted that the part of the affidavit setting out the reasons for bringing the claim was analogous to pleading. He held that when considered against the principle of open justice and the public interest in enabling the public to understand why the claim had been brought, the Financial Times should be permitted to access that part of the affidavit. However, it would be precipitous to permit the Financial Times to obtain a copy of the entire affidavit at the early stage of proceedings.
The case will be of interest for the Judge’s consideration of the application of the open justice principle to non-party access to witness evidence before a hearing has taken place, particularly in Part 8 proceedings.
5RB’s Samuel Rowe acted for the Financial Times (instructed by Reynolds Porter Chamberlain LLP).
Read the 5RB case report here.