England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Court No 63 Royal Courts of Justice The Strand London WC2 A2U
		14th July 2005

Thursday, 14th July 2005

1. LORD JUSTICE RIX: This is an application made by Mr Stadlen QC on behalf of the Bank of England that the judgment that we have prepared on BCCI's appeal from the judge's decision, made on the Bank's application, to curtail the cross-examination of the Bank's witness, Mr Quinn, by counsel on behalf of BCCI, so that it should finish and so that re-examination could take place before the beginning of the long vacation, be maintained in private and indeed that an order be made for these purposes under section 12(3) of the Contempt of Court Act 1981.
2. The circumstances of the judge's decision on BCCI's appeal and Mr Stadlen's application this morning are fully dealt with in the judgment, which we have prepared for handing down.
3. In his written and oral submissions Mr Stadlen draws attention to the fact that there is jurisdiction under CPR39.2(3)(c) to enable a court to hold a hearing, which would otherwise be in public, in private if:

"(c) It involves confidential information, including information relating to personal or financial matters, and publicity would damage that confidentiality."

4. Mr Stadlen relies on that in respect of material in the judgment concerning the medical condition of Mr Quinn, which he says is confidential information within those terms. He also points out, correctly in my judgment, that if a hearing is heard in private, then it is open to the court to rule that its judgment should be maintained in private. See In re Trusts of X Charity [2003] EWHC 257 (Ch) [2003] 1 WLR 2751, a decision of Sir Andrew Morritt, Vice Chancellor. None of that, I think, is in dispute. The question is nevertheless whether this court should order that its judgment be maintained in public and indeed that an embargo should be made under the Contempt of Court Act.
5. Unlike the position in In re Trusts of X Charity, where the matter before the court was one which the rules provide should be heard in private (see CPR 39PD, paragraph 1.5(10)) -- indeed the matter there was described by the Vice Chancellor as concerned with an "essentially administrative jurisdiction" (see paragraph 12 at 2755D) -- the matters in question in this case arise out of a public trial in litigation of great importance between the parties, involving the Bank of England, a form of public body, and arising out of matters of important and public concern. I need only mention the fact that the collapse of BCCI and the allegations made by the liquidators of BCCI in the case were made promptly the subject matter of a public inquiry, the 1992 Bingham Inquiry, to illustrate the point. Therefore, the application to curtail Mr Quinn's cross-examination, made by the Bank and heard originally by the trial judge, was prima facie a matter to be heard in public and not, as in the case of the matter before the Vice Chancellor, a matter prima facie to be heard in private.
6. It is true that the judge consented to hear the Bank's application in private, apparently at least because that request was not opposed by BCCI. But on this appeal this Court made it plain that, although it would be prepared to hear argument in private, it was concerned about the proper order to make and wished to hear further argument, which it then did not have time to hear and which counsel was not then in a position to make. In the meantime expedition in the hearing and decision of the appeal was necessary. The Court therefore made it plain that while it was prepared to continue to hear the appeal in private, it reserved its opinion on whether it judgement could be in private.
7. Mr Stadlen's application, nevertheless, is made -- and this is entirely understandable -- out of consideration and concern for Mr Quinn's personal interests in maintaining the confidentiality of his medical condition. Mr Stadlen rightly refers the court in his argument to the evidence before the court contained in the 11th statement of Mr Goddard of 22nd June 2005, in which Mr Goddard brings to the attention of the court that Mr Quinn has found it distressing for his state of health to be the subject of debate at all and that he regards it, quite understandably, as a very personal matter and that it may be that he has even by now not had the chance to break the news of his medical condition to all those to whom he might wish to do so, such as, of course, his close, but also his extended, family and his business colleagues. He is therefore, as Mr Goddard makes clear, extremely keen to ensure that any discussion of his health should take place in and be maintained in private.
8. All of that, as I say, is entirely understandable and of course is a matter of concern to this court, which I have considered with concern and with care. There is undoubtedly, therefore, to that extent an element of personal prejudice to Mr Quinn, which, as I say, I take fully into account.
9. However, It has to be recalled that in this litigation Mr Quinn, although not a party but only a witness, as I fully accept and remind myself, is nevertheless not an incidental or accidental witness; he is a witness because, albeit he has been retired for nine years now from the Bank, he was a senior officer and indeed executive director of the Bank, he has been at times intimately concerned in the affairs at issue in this case, is being cross-examined as someone so concerned and is one of those, amongst others, within the Bank who has been allegedly guilty of dishonesty in his dealings with the supervision and regulation of BCCI, which is the issue in the case and naturally a matter of public interest.
10. Indeed, if one turns from the private interest of Mr Quinn to the question of public interest, it is clear that there are important matters of public interest in the case. I have already mentioned the Bingham Inquiry. This is very large and important litigation involving a public body, the Bank of England. Serious allegations are made by BCCI in the matter and that is what Mr Quinn is being cross-examined about.
11. All of that raises considerable matters of public interest. The particular question itself with which we are concerned here, namely the curtailment of cross-examination, is itself a matter of public interest and, bound up, as it is, in the larger public interest of the case, that matter becomes something which is a fortiori.
12. Although Mr Stadlen submits that the judgment which we are about to hand down does not -- and I think he is right about this -- develop principles of law in any new way and in that respect there is no public interest in a technically legal sense in our judgment, nevertheless, the relatively new express power to curtail cross-examination under the rules has been considered in very few cases. Indeed, the one such case which has been cited in our judgment is a case of a very, very different nature, a case in which the judge's decision to curtail cross-examination was, unlike the present case, reversed on appeal. It was a case arising out of a very small claim in which the judge had curtailed cross-examination at only, as it were, five minutes' notice, or indeed at no notice at all, and that was the point on which the Court of Appeal reversed the judge.
13. In this case we are considering very different litigation indeed, much larger concerns arising out of cross-examination and although, as I say, I do not believe there is any development of the law relating to the exercise of discretion or case management powers by the judge in principle, nevertheless the operation of the CPR rule and the case management decision of the judge in this case and the way in which the submissions of counsel on both sides have been dealt with may themselves be matters of public interest for future litigation.
14. But that, I think, is not the real public interest in the case. The public interest is that this is very important litigation, in which very serious allegations are made. At the heart of Mr Pollock's submissions was the fact that in such litigation, in litigation of such size, cross-examination should proceed uncurtailed at all, and the fact that it has been curtailed is, as I say, a matter of public interest. Therefore, this court has to weigh the public interest concerned with Mr Quinn's private interest.
15. In that connection the decision of In re Trusts of X Charity throws no light at all. That was, as I say, a matter for which the rules themselves provided a private hearing, there was no matter of public interest at all, and the only question which was really raised was whether, the argument having taken place in private, the judgment could be in private, consistent with obligations under Article 6 of the European Convention on Human Rights. That is not at issue in this case at all.
16. The issue of the importance of public justice is another question on which the leading authority is still that of Scott v Scott [1913] AC 417. The importance of public justice is perhaps best illustrated there in a paragraph in the speech of Lord Shaw of Dunfermline at page 477, which I need not read but which is a famous passage, and the principles laid down by Scott v Scott, which are still of enduring and modern relevance, subject, of course, to the exceptions which can arise and which were themselves discussed in Scott v Scott, are well summarised in the judgment of Sir John Donaldson MR in R v Chief Registrar Friendly Societies, ex parte Newcross Building Society, [1984] QB 177 in particular at pages 235C to F and 236E to G. I refer to those well-known passages but do not take time to set them out in this judgment.
17. It seems to me that, weighing the public interest and Mr Quinn's private interest, the scale has to fall, however unfortunate this is for Mr Quinn, in the direction of the public interest. However reluctantly, Mr Quinn has consented to his medical condition being in evidence before the Court. No doubt he hoped for maintained confidentiality, but he could not be sure of it, and had to take the risks of publicity. Moreover, as I have said, Mr Quinn is not an incidental or accidental witness. The medical details, which I hope have been sensitively dealt with in this court's judgment, are in no way embarrassing to Mr Quinn whatsoever, as, of course, medical details sometimes can be. Indeed, I consider that there are dangers for Mr Quinn in the maintenance of secrecy in connection with this, since our order, as is common ground, could not in any event be secret and since speculation may well arise in the public arena as to the reasons for the curtailment of the cross-examination and indeed over the health of Mr Quinn. Fortunately, as our judgment makes clear, the prognosis for Mr Quinn is an entirely excellent one. Indeed, the prognosis is that if he needs to have the operation, which it is said on current medical evidence he is likely to need by the autumn of this year, that operation should leave him fully recovered and indeed in better health and with a longer life expectancy than he has at the moment. So I also take into account the dangers and indeed the probability that, in one way or the other, particularly if, as we have found is likely, the operation does take place, these matters will all become public knowledge in due course.
18. For all those reasons I would conclude that the public interest must prevail in this case.
19. Having said that, I have also considered the fallback positions which Mr Stadlen has put before us. His first fallback position is that privacy should only be maintained until Mr Quinn's medical condition comes into the public domain. In my judgment that would be an unsatisfactory and uncertain condition and leave parties subject to the danger of being in contempt of court subject to uncertain condition in an uncertain situation.
20. Of more interest, it seems to me, is Mr Stadlen's second fallback position, which is that Mr Quinn should be given a certain short period of time for him to contact those whom he may not already have contacted and whom he wishes to contact in advance of anything becoming public, to tell them about his medical condition. That, it seems to me, is an entirely reasonable request and does not intrude against the public interest, provided that the period is kept reasonably short, having in mind both the public interest, to which I have referred, in this ongoing trial and also the dangers to Mr Quinn of a leak occurring before he has had a chance to contact those whom he wishes to contact.
21. In these circumstances it would be going too far to put over the entering of this judgment into the public domain until a period after the conclusion of Mr Quinn's cross-examination, which would take us into August.
22. A period of five days has been mentioned. That is certainly enough for Mr Quinn to contact those whom he wishes to contact. I have in mind, however, that he is undergoing cross-examination four days a week, which is a heavy and stressful task. That gives him Friday and his weekends and, of course, his evenings. In the circumstances, in discussions between those on the bench, we have considered a period of seven days. Seven days would take us to next Thursday but the eighth day is a non-trial day and therefore we would extend it to next Friday as well.
23. So we would say the judgment being handed down should not become public before the close of Friday week, 22 July.
24. MR JUSTICE RIMER: I agree with the order that my Lord has proposed and with the reasons he has given. We heard the argument on the claimants' appeal in private, expressly without prejudice to our later decision as to whether the judgment should be delivered in public or private, on which we invited and have received further argument. We have heard argument from the Bank in favour of the proposition that the judgment should remain private but and have had no argument in opposition to it from the claimants, who are neutral on the matter. In circumstances such as that the court needs to be particularly vigilant as to whether it should accede to the application for its judgment to be delivered in private.
25. The importance of publicity to the judicial process is fundamental and the court ought only to take the exceptional case of hearing a matter in private and delivering its judgment in private in a case in which it is necessary, in the interests of justice, to do so. Whilst I, like my Lord, recognise Mr Quinn's private interest in preserving the secrecy of our judgment, I take the view that the public interest, to which my Lord has referred, in the reasons for our decision being publicly available outweighs Mr Quinn's private interests.