High Court finds Secretary of State's affirmation in disqualification proceedings is not publicly available as a statement of case

In a recent decision, the High Court refused to grant the Financial Times access to the whole of the Secretary of State's affirmation in support of directors' disqualification proceedings against Alexander Greensill, pursuant to either CPR 5.4C or the court's inherent jurisdiction. However, the FT were permitted to see the statement of matters determining unfitness, which such affirmations must contain under rule 3(3) of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987: Secretary of State for Business and Trade v Greensill v The Financial Times [2024] EWHC 1803 (Ch).

The court did not accept that a Secretary of State's affirmation in directors' disqualification proceedings is akin to a statement of case so that it is automatically available to non-parties under CPR 5.4C(1), and did not consider it appropriate to permit access to the affirmation in its entirety in circumstances where it had not yet been relied on in open court.

However, the court considered that the rule 3(3) statement was analogous to a statement of case, as it set out the allegations that will fall to be determined be due course. It was therefore appropriate to grant access to that section of the affirmation under CPR 5.4C(2) – which allows non-party access to any other document filed at court if the court gives permission – or under the court's inherent jurisdiction.

The decision contrasts with R (on the application of Corner House Research v BAE Systems plc [2008] EWHC 246 (Admin), where a non-party succeeded in arguing that the detailed grounds for contesting a claim in judicial review proceedings was equivalent to a defence, and should therefore be accessible to non-parties without permission in the same way as other statements of case. The judge in the present case considered that rule 3(3) statements are analogous to statements of case, but stopped short of finding they are equivalent such that they should be automatically available to non-parties.

As well as the specific implications for directors' disqualification proceedings, the decision is of interest in finding that the interests of open justice did not require disclosure of the entire affirmation at a stage where it had not yet been relied on in open court. Such interests were outweighed by the rights and interests of the parties in being able to prepare for trial without their evidence being trailed in the media, and avoiding the repetition of serious allegations to which the defendant had not yet had an opportunity to respond.

The decision is consistent with other cases in which the courts have generally declined to order disclosure of witness statements in advance of their being put in evidence at trial or another hearing (as for example in Blue v Ashley [2017] EWHC 1553 (Comm), considered here, which was referred to in the decision). All that could change, however, if the Civil Procedure Rule Committee implements proposals consulted on earlier this year (see our previous blog post) which would mean parties' witness statements, expert reports and skeleton arguments becoming available, in most cases, as soon as they are filed.

Background

Greensill Capital was a financial services group of companies based in the UK and Australia. Its high-profile collapse in 2021 has attracted a significant amount of press coverage and public interest.

In March 2024, the Secretary of State for Business and Trade commenced director disqualification proceedings under the Company Directors Disqualification Act 1986 against its founder, Mr Greensill, in connection with his role as director for various Greensill group companies.

The disqualification proceedings were commenced by a CPR Part 8 claim form, which is the usual procedure for director disqualification proceedings. Under Part 8, there are no other formal statements of case. Instead, the claimant (or in the case of disqualification proceedings, the applicant) is required to file any written evidence on which they intend to rely at the same time as filing their claim form.

In this case, the Secretary of State's claim form was supported by an affirmation from a chief investigator in the Insolvent Investigations Directorate of the Insolvency Service. The affirmation ran to 322 pages excluding schedules. Its exhibits extended to more than 8,500 pages.

ICC Judge Mullen approved a consent order that the affirmation and its exhibits were not to be made available to any non-party unless ordered by the court following an application made on notice to the parties.

The Financial Times, which had been reporting on Greensill since early 2021, made an application seeking disclosure of the Secretary of State's affirmation. They asserted that, without sight of the affirmation, they would be unable to identify why the disqualification order was being sought. This would, they said, have the effect of "undermining substantively its function as public watchdog, and, thereby, undermining the important principle of open justice".

The Financial Times argued that the Secretary of State's affirmation in disqualification proceedings is equivalent to a statement of case as defined in CPR 2.3(1), and so should be available to non-parties as a matter of course under CPR 5.4C(1), like any other statement of case. Otherwise, they said, it should be made available to non-parties pursuant to CPR 5.4C(2), which allows non-party access to any other document filed at court if the court gives permission, or under the court's inherent jurisdiction.

The application was opposed by Mr Greensill. The Secretary of State remained neutral.

Decision

The High Court (ICC Judge Mullen) held that a Secretary of State's affirmation (or affidavit) in support of disqualification proceedings is not a statement of case within the definition in CPR 2.3(1), but rather evidence in support of a statement of case (ie the claim form).

The judge acknowledged, however, that such documents serve a dual purpose: first, they are evidence in support of the disqualification application; second, they set out the specific allegations of unfitness on which the Secretary of State will rely, as required pursuant to rule 3(3) of the 1987 Rules (referred to above). That rule provides as follows:

"(3) There shall in the affidavit or affidavits…be included a statement of the matters by reference to which the defendant is alleged to be unfit to be concerned in the management of a company."

The judge commented that rule 3(3) statements are "not quite a pleading" but are "in the nature of a charge sheet on which the court is required to focus when considering a disqualification claim". As such, they are "analogous" to a statement of case. The rest of the affirmation, on the other hand, is the evidence in support of the allegations.

The judge found that, in relation to the rest of the affirmation, it would be precipitous for him to order disclosure to the Financial Times where it had not yet been relied on in open court. The judge concluded that, in this case, the importance of open justice was at this stage strongly outweighed by the rights and interests of the parties, in particular ensuring that they can prepare for trial without their evidence being trailed in the media, and protecting the defendant from the repetition of serious allegations to which he had not yet had the opportunity to respond.

However, in the judge's view, open justice pointed towards making the Secretary of State's rule 3(3) statement available to the Financial Times:

"There is a strong public interest in this case and a strong public interest in the nature of the case that the court is being asked to decide being understood. I think that Mr Rowe was right to observe that, until the nature of the allegations is known and understood, there is a risk of speculation as to what they might be."

The judge did grant Mr Greensill some time after the hearing to raise any objections he might have to the disclosure of particular aspects of the rule 3(3) statement. As the judge acknowledged, the nature of rule 3(3) statements had not been considered when the application was made, and the parties were therefore in the position of having to assess the consequences of his decision "on the hoof". However, he added that, given the public interest, he did not anticipate that any redaction would be permitted unless there was "a very clear and serious reason to do so."