A recent decision illustrates the court’s approach to providing non-party access to documents referred to at a public hearing, in the context of a proposed scheme of arrangement: Re Port Finance Investment Ltd [2021] EWHC 454 (Ch).

The decision applies the recent guidance from the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 (outlined here). That case established that the court must conduct a fact-specific balancing exercise in each case, considering in particular the extent to which disclosure will advance the purposes of the open justice principle – namely enabling public scrutiny of court decisions and enabling the public to understand court proceedings.

The present decision suggests that public scrutiny of court decisions may be seen as especially important in scheme cases, given their implications for the rights of creditors who do not consent to the scheme.

Conversely, the decision suggests that little weight may be given to other purposes a non-party applicant may have in accessing court documents where those purposes – while they may be legitimate – do not advance open justice. That is consistent with the High Court’s application of Supreme Court’s decision in a further decision in Dring itself (considered here).

Background

Reorg Research Inc (“Reorg”) brought an application to access copies of four witness statements referred to at a hearing relating to a scheme of arrangement proposed by Port Finance Investment Limited (the “Scheme Company”), which opposed the application. The witness statements were referred to and paraphrased in the court’s judgment convening the scheme meeting (see [2021] EWHC 378 (Ch)).

Reorg is a business intelligence and media organisation that focuses on financial restructurings, and provides a paid-for subscription service to the restructuring community. Reorg’s interest in the court documents was prompted by the fee arrangement which a group of scheme creditors intended to enter into with their financial adviser, and which included a success fee of $1 million payable if the members of the group voted in favour of the scheme and the scheme was sanctioned. The judgment convening the scheme described this as an unusual arrangement which, contrary to the evidence of the Scheme Company, the judge did not consider to be market standard.

Reorg submitted that it would advance the open justice principle for it to have access to the witness statements, so that it could make scheme creditors aware of the genesis and reasons for the proposal, as well as other trade creditors and lenders since payment of the fee would reduce the funds available to service other debt.

The Scheme Company argued: first, that the witness statements contained little (if any) information concerning the structure of the success fee that was not already available from the convening judgment and other public statements; and secondly, that Reorg’s purpose was not to advance open justice but rather to promote Reorg’s own commercial activities in the form of its subscription service.

Decision

The High Court (Snowden J) granted the application.

He referred to the Supreme Court’s decision in Cape Intermediate Holdings Ltd v Dring (referred to above) which gave guidance on how a court should approach a non-party application for access to documents referred to in open court. In that case, Lady Hale explained that the open justice principle applies to all courts and tribunals, and the court has an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court. She identified two principal purposes of the open justice principle:

  1. To enable public scrutiny of court decisions, and hold judges to account.
  2. To enable the public to understand how the justice system works and why decisions are taken.

To do this, members of the public have to be in a position to understand the issues and the evidence adduced – which often means access to the written material, given the modern practice of reducing much of the argument and evidence into writing before the hearing takes place. Accordingly the open justice principle extends beyond the written submissions and arguments, to include the underlying documents – and not just those which the judge has been asked to read, or has read, since one object of the exercise is to enable the observer to relate the judge’s decision to the material which was before the court.

Lady Hale went on to say that it is for the person seeking access to explain why it is sought, and how granting access will advance the open justice principle. The court has to carry out a fact-specific balancing exercise between, on the one hand, the potential value of the information sought in advancing the purposes of the open justice principle and, on the other, any risk of harm which disclosure may cause.

Performing this “fact-specific balancing exercise” on the facts of the present case, Snowden J noted that the primary purpose of the open justice principle, namely to allow public scrutiny of decisions, is especially important in scheme cases, as they involve a compulsory alteration of the rights of non-assenting creditors without their consent.

He did not place any weight on the fact that Reorg is a subscription service provided to a limited number of organisations. Given the highly technical and specialist nature of schemes, it was inevitable that scrutiny of decisions in scheme cases would be more effectively conducted by professionals in the restructuring industry rather than by the man in the street. Further, in the case of an international scheme such as the present, the need to facilitate public scrutiny extended beyond the UK, and media organisations with an international reach such as Reorg could perform an important role in that regard. It was also irrelevant that Reorg charges a subscription fee, as most media organisations seek to charge in some way for their services. That does not mean they are not performing a legitimate journalistic function, or cannot serve the principles of open justice.

The second purpose of the open justice principle referred to by Lady Hale, ie allowing the public to understand why the judge reached the decision in question, also applied in the present case. Snowden J noted that the documentation for a modern scheme case can be extensive, so counsel will ordinarily provide detailed written arguments summarising the case, and the judge has the opportunity to pre-read. The result is that witness statements will not be read out in open court and, even where a copy of the skeleton argument is made available to those attending the hearing, it can be impossible for an observer to discover the detail of the evidence or argument.

The judge accepted that, as the Scheme Company submitted, the witness statements in this case contained little (if any) detail about the structure of the success fee beyond the explanation given in the convening judgment, but they did give additional evidence as to the genesis, terms and rationale for the arrangement. That was relevant in relation to Lady Hale’s comment that one object of the open justice principle was to enable the observer to relate the judge’s decision to the full range of the material which was before the court. As the judge put it, it was possible that, with its knowledge of the restructuring industry, “Reorg may be able to pick up nuances in the evidence that did not occur to me”.

Snowden J placed less weight on Reorg’s argument that it may be important to make the proposal to pay a success fee known to other creditors, who might effectively be paying for that fee by a reduction in funds available to them in the wider restructuring. He recognised that there may be a wider interest in that point, but as the propriety or wisdom of the group’s intentions in this respect was not an issue before him at the convening hearing, he did not see how this would directly serve the principles of open justice.

There were no adverse consequences to weigh in the balance, since it was not contended that any of the information in the witness statements was confidential, or that disclosure of it would be harmful.

Anna Pertoldi
Anna Pertoldi
Partner
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Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608