In which I praise Private Eye for its news-gathering activities; comment on the failure of other news organisations to do the same; compliment the English courts for its open-ness; and contrast this with the prevailing mood in the Scottish courts regarding “Open Justice”.
I was skimming the marvellous BAILII website, looking for interesting legal cases. As I did so, I came across one which was decided on 30th May 2012 by Mr Justice Morgan in the High Court in London. The case is titled Pressdram Limited v Craig Whyte and David Anderson. Pressdram Limited is of course the owner and publisher of Private Eye.
What happened here was that Private Eye engaged in good, honest journalism.
They wanted to see papers which related to the disqualification procedures taken against Mr Whyte and Mr Anderson under the Company Directors Disqualification Act 1986. These original proceedings were filed on 20th October 1998 and resulted in an order being made by Mr Registrar Simmonds on 13th June 2000. That order was a seven year disqualification for Mr Whyte.
Morgan J took account of guidance on “Open Justice” regarding “availability of documents to non-parties”. He also considered a very recent decision of the Court of Appeal – 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. In that case, which related to extradition, there had been, as Morgan J, in the Pressdram case, said, “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.”
He referred to paragraph 85 of that judgment where Lord Justice Toulson said:
‘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.’
Private Eye asked to see the following documents:-
- the originating summons in the directors disqualification proceedings;
- the evidence filed by the Secretary of State in support of its application;
- the evidence, if any, filed by Mr Craig Whyte;
- the evidence, if any, filed by Mr David Anderson, co-defendant;
- 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
- 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.
Morgan J said:-
“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.”
He then considered whether any “countervailing reasons” had been raised or were present. As neither Mr Whyte nor Mr Anderson chose to participate in this hearing, and as there “were no obvious countervailing reasons”, Morgan J said:-
“The only factors in play are those which are in favour of the making of the order which is sought.”
Counsel for Private Eye then asked for an order for costs to be made against Mr Whyte. It was argued: “… 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”.
The judge refused the application for costs made by Pressdram. He said, regarding the order sought:-
“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.
“I hope you sell more copies as a result and you will benefit accordingly.”
This case explains how Private Eye managed to know so much about the business affairs of Mr Whyte and Vital UK Ltd.
The magazine had its counsel in front of the judge with the application only days after the award-winning Mark Daly BBC documentary “The Men Who Sold the Jerseys”.
Nobody else bothered to do so.
The BBC did not need to as it had obtained access to papers and information via the Government’s Insolvency Service. But the rest of the media, who were without that information, did not bother looking.
Even though bloggers like the acclaimed and sadly missed RTC (of RangersTaxCase.com fame), Paul Brennan of CQN and Andy Muirhead at Scotzine, together with journalists led (by some distance) by Phil Mac Giolla Bhain, were exposing major planks of the Rangers story, the matter became widespread and public knowledge once BBC Scotland became interested, and followed up by Alex Thomson of Channel 4 News.
Private Eye, especially under the editorship of Ian Hislop, has developed its reputation as a fearless exposer of iniquity. The economic implications of writing about Rangers, which have been discussed in connection with the Scottish media, did not apply to Private Eye.
Any news organisation in the UK could have applied for an order revealing details of Mr Whyte’s disqualification. No one else did.
Interestingly there are not, at least to my knowledge, equivalent procedures in Scotland for allowing news organisations access to court materials. And if there are, I would be astonished if the courts interpreted them as liberally as the English courts did in the cases where decisions of Morgan J and Toulson LJ. The move to Open Justice is very much to be welcomed. The courts are, in theory, public. But the “public” element only seems to be applicable where the public are actually in the court room. And even then, it is quite common for the proceedings to be totally inaudible to anyone seated in the public benches.
And finally, does it surprise anyone that Private Eye tried to get Mr Whyte to co-operate, but that he refused to engage with them!
Posted by Paul McConville