No entitlement to demand a public disciplinary hearing

In ZAI Corporate Finance Limited v AIM Disciplinary Committee of the London Stock Exchange Plc (and London Stock Exchange Plc, interested party) [2017] EWCA Civ 1294, the Court of Appeal considered whether a disciplinary hearing should be conducted in public or private.

Key Points

• Whether a hearing should be held in public or private depends on a number of factors including the regulatory context and the particular rules of the decision maker in question.
• A public law decision maker may consider it appropriate to hold a hearing in private where pleadings mention third parties and the committee considers that a hearing in public would be unduly prejudicial to their rights, particularly where they have no notice of the proceedings and therefore no right of reply.
• If a public law decision-maker is asked to exercise its discretion in a particular way, the requesting party should provide a reasoned and persuasive argument as to why it is making the request.

Background

ZAI Corporate Finance Limited ("ZAI"), a nominated advisor in relation to the Alternative Investment Marked ("AIM"), or NOMAD, was subject to disciplinary proceedings brought by the London Stock Exchange (the "Exchange"), after an alleged breach of the AIM rules. The dispute in question concerned whether the hearing before the AIM Disciplinary Committee of the London Stock Exchange Plc (the "Committee") should be held in public, as contended by ZAI, or in private, as the Committee directed. The issue turned on the wording of rule C22.1 of the AIM Disciplinary Procedures and Appeals Handbook – May 2014("the Handbook") which provides that "The AIM Disciplinary Committee will usually conduct hearings in private, although an AIM company or nominated adviser which is subject to proceedings has the right to ask for such hearing to be conducted in public. An AIM company or nominated adviser requiring such hearing to be conducted in public shall notify the Chairman at least five business days prior to the commencement of the hearing."

ZAI's solicitors wrote to the Committee requesting an oral pre-hearing review to consider a direction that the oral hearings be held in public but gave no explanation for this request. The Exchange's solicitors did not consider ZAI's request to be justified as no reason why a departure from Rule 22.1 should be made was provided. The Chairman of the Committee went on to make a direction that all oral hearings on this matter were to be held in private.

In its judicial review pre-action protocol letter before claim, ZAI acknowledged that C22.1 contained a general rule that hearings should be held in private but argued that an automatic exception to that rule takes effect where a request to have the hearing in public is made. It contended that the fact a nominated adviser can "require" the hearing to be conducted in public and only need notify the Chairman 5 days before the hearing made it clear that the Committee had no residual discretion to deny the request. The Committee responded arguing that the Rules only stated that an AIM company or nominated advisor had the right to ask for the hearing to be in public and that it did not consider that the inclusion of the word "requiring" placed an obligation on the Committee to conduct the hearing in public once requested.

The challenge

ZAI raised three grounds of challenge to the Committee's ruling before the Administrative Court, which it reiterated on appeal:

1. that the Committee misconstrued Rule C22.1;
2. that the Committee's exercise of discretion was flawed; and
3. that the Committee had breached Article 6 of the European Convention on Human Rights (the right to a fair hearing).

The judgment

In respect of the first ground, the judge found that the more natural meaning of the language used in Rule C22.1 was that a nomad is entitled to ask for or request a public hearing but the Committee has a discretion whether or not to direct what the nomad is seeking. He also pointed out that giving a nomad an absolute right to demand a hearing in public would make no sense in the context of the regulation of a financial and commercial market as a public hearing may have reputational and other adverse consequences where third parties are identified.

In respect of the second ground, the judge found that the Committee's approach to exercising its discretion was entirely sensible. The judge also noted that ZAI did not advance its case based in discretion since it did not highlight particular features which the Committee should take into account in exercising its discretion.

In respect of the third ground, there was an issue between the parties as to whether Article 6 applied at all to the Committee and whether "civil rights and obligations" were engaged. The Committee argued that even if Article 6 was engaged, it had not been breached on the basis that in special circumstances a hearing may be held in private where publicity would prejudice the interests of justice. The judge agreed with this approach and thought it was entirely compliant with the terms of Article 6.

Comment

Although in most circumstances hearings should be held in public for justice to be done, there are important exceptions to that rule and often discretion must be exercised in order to find the balance between promoting justice through publicity and the protection of private matters.

This case illustrates the need to put forward a powerful, reasoned and persuasive argument if asking a decision maker to exercise discretion in a particular manner.

Andrew Lidbetter Partner +44 20 7466 2066 Email	Nusrat Zar Partner +44 20 7466 2465 Email	Jasveer Randhawa Of Counsel +44 20 7466 2998 Email