England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/04/2017

Mr Justice Mostyn:

1. This is my judgment on the application by the claimant for permission to apply for judicial review against two case management decisions made by the AIM Disciplinary Committee ("ADC") within disciplinary proceedings brought by the London Stock Exchange against the claimant. Those decisions were, first, to hear the disciplinary proceedings in private; and, second, not to recuse the three members of the panel. It has been directed, if permission is granted, that I should go on to consider the substantive claim for judicial review.
2. The claimant is a nominated adviser ("nomad") - a corporate financier which acts as the primary regulator and advisor to companies listed on the Alternative Investment Market ("AIM"), and which has been authorised by the London Stock Exchange ("LSE") to act as such. AIM belongs to the LSE; it has no separate legal existence. The LSE, and therefore AIM, are, unsurprisingly, regulated by European and domestic legislation.
3. I begin with some observations of a general nature.
4. If you want to become a nomad you apply to be admitted as such. If you are admitted, you form a contract with AIM and agree to comply with its rules and procedures and to accept its disciplinary measures. Naturally, such a contract was made in this case. If you are expelled as a nomad because of a breach of the rules, then there is nothing to stop you continuing to provide corporate finance advice and services to AIM companies, or to anyone else, nor from seeking work in a similar capacity, so far as that is applicable, for one of the other 70-odd exchanges or markets in this country. It is not like being disbarred when you are forever prevented from practising as a barrister. Therefore, notwithstanding the legislative regulatory overlay, your tenure as a nomad is much more akin to membership of a private club than that of a regulated profession. The procedures and case management decisions of the ADC must be seen in this context.
5. As I will explain, the rules of the ADC, properly interpreted, provide that disciplinary proceedings will normally be heard in private, but that the accused may ask, but not insist, for them to be heard in public. Two reasons are given for this rule, both of which seem eminently sensible and predictable. First, one of the sanctions available to the ADC is the administration of a private censure or warning. This is in the nature of advice to enable the offender to remediate his misconduct. But such a sanction would not realistically be available if the proceedings were invariably heard in public. The second is that in proceedings of this nature very serious allegations are made which may impact on third parties. For example, it may be alleged that the nomad has irresponsibly brought to the market a defective company. The nomad's defence may impugn the company and its officers. If the allegations are found not to be true, there may nonetheless have been irreparable damage done to the company. Therefore, the possibility of collateral damage to third parties is considered to be a good reason for holding the proceedings in private. In any event, one would normally expect a private club's disciplinary proceedings to be held in private.
6. Another important contextual point is that disciplinary proceedings against a nomad for breach of the rules are likely to involve highly technical and complex allegations. Inevitably, it will be necessary to appoint a disciplinary panel with extensive and thorough contemporary expertise of market standards and conditions. To speak idiomatically, the panel needs to know what everyone is talking about. It seems obvious, that if the allegation is that the nomad has broken the rules the people judging it should either be themselves nomads or should have current market experience. Sensibly, the panel in this case is so qualified. Yet this is the very reason why the claimant says they should be recused. The claimant says that they are people working for firms in direct competition with it, and that it might thus be considered by an objective observer to give rise to the possibility of a corrupt judgment, either consciously or unconsciously. It is said that the adjudicators might be motivated, consciously or unconsciously, when rendering judgment to drive their competitor from the field so they can pick up the business left behind. If accepted, this argument will have the consequence of seriously limiting the size of the pool of qualified people from which disciplinary panels can be drawn.
7. I turn now to consider in detail the first challenge namely the decision made by the ADC to hear the proceedings in private.
8. The relevant AIM rule (Handbook Rule C22.1) provides:

"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 commencement of the hearing."

The claimant says that the verbs "to ask" (as an infinitive) in the first sentence, and "requiring" (in the present continuous tense) in the second sentence grant the accused the right to insist on a public hearing. I do not agree with this reading whether it is analysed grammatically or purposively.

9. According to the Oxford English Dictionary "to ask" means no more than to say something to a person with the aim of eliciting a response. To require, when used as a transitive verb, means "to ask, request, or beseech (a person) to do something". Obviously, the verbs in the two sentences must be construed consistently. As I said in argument, to construe the verb in the first sentence as doing no more that expressing a request but construing the verb in the second as granting an entitlement leads to a reading which is nonsensical. In my view the two sentences are to be read as if "to request" and "requesting" appeared instead of "to ask" and "requiring".
10. This interpretation corresponds to a purposive analysis. A plain purposive reading of the rule provides for a presumption or starting point that the proceedings will be heard in private but that the accused (but curiously not the prosecutor) may ask for the proceedings to be heard in public. Thus, the proceedings are placed on a comparable footing to those in the Court of Protection and in the Family Court (see, respectively, the Court of Protection Rules 90 and 93, and the Family Procedure Rules 27.10). Court of Protection Rule 93 provides that the court will only make an order for the proceedings to be heard in public where there is "good reason" for making it. In Independent News and Media Ltd and others v A (by his litigation friend, the Official Solicitor) [2010] EWCA Civ 343, [2010] 2 FLR 1290 Lord Judge CJ stated at [11]:

"None of these orders may be made unless there is 'good reason' for making it. We do not propose to re-write the words 'good reason'. They mean what, taken together, they say. Arguments about whether the general rule that the hearing should be in private amounts either to a presumption or to a starting point are in practice unlikely to be anything other than semantic. If in the judgment of the court there is good reason to grant the authorisation, the order may be made: otherwise not. No doubt more compelling reasons would be likely to be required in support of a full public hearing rather than a suitably anonymised publication of the court's judgment."

11. Therefore, in construing the AIM rule I conclude that the ADC has a discretion to dis-apply the normal prescription provided that the applicant shows good reason why it should do so. And the good reason will necessitate demonstration of something more than repetition of the familiar trope that open justice is a Good Thing. It is noteworthy that the most vociferous advocates of unrestricted media and public access to private business almost invariably cite Jeremy Bentham. The most colourful example is the speech of Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417 at 477 but further examples (among many others) include Home Office v Harman [1983] 1 AC 280 per Lord Diplock and R (C) v Secretary of State for Justice [2016] 1 WLR 444 per Lady Hale. The usual quotation from Bentham's Works is from Vol IV page 316 which speaks of publicity being 'the very soul of justice'. However, on the following page Bentham specifies these exceptions:

"Necessary again as it is that nothing should ever pass injustice which it should not be in the power of every one who had an interest in bringing it to light, to bring to light if he thought proper, it is not so that anything should be brought to light, the disclosure of which would be prejudicial to some and beneficial to nobody. It is on this consideration that I ground the three other divisions of the class of secret cases: causes to be kept secret for the sake of the peace and honour of families; causes to be kept secret for the sake of decency; and incidental enquiries to be kept secret out of tenderness to the pecuniary reputation." (emphasis added)

The second reason for designating these disciplinary proceedings as private business (see para 5 above) seems to me to mirror exactly Bentham's third exception.

12. It is an elementary rule of statutory construction that an interpretation should not produce absurd results. Were the interpretation by the claimant to be adopted then, notwithstanding that the rule plainly inclines to privacy, the result would be to leave proceedings in the ADC in a worse position than open court proceedings governed by CPR 39.2. Under that provision the general rule is that a hearing is to be in public but there is a discretion, in certain specified circumstances, to hear a matter in private. One of the exceptions is where the case involves confidential information and publicity would damage that confidentiality. If the interpretation advocated by the claimant were correct then, on asking for a hearing in public, that would have to be granted without scope for refusal on any ground, not even national security. Mr Jaffey QC rightly argues that such a 'right' to force a public hearing could be used by a person to defeat disciplinary proceedings against them. For example, ADC hearings may involve market-sensitive information about an AIM company which a nomad has advised is unnecessary to disclose; unproven allegations by the LSE that an AIM company breached the Rules; unproven allegations by a nomad that an AIM company misled or otherwise disabled it from ensuring the company's compliance; or evidence about confidential governmental contracts entered into by an AIM company, e.g. for the sale of defence or surveillance equipment. In such cases the disclosure of such information could result in serious harm to private or public interests. The very question under examination in the disciplinary proceedings may be whether certain information should have been made public. If nomads could insist on a public hearing, it may force the LSE to abandon the disciplinary action against them. A public hearing could also affect third parties such as former employees, AIM companies and their senior staff.
13. I have already explained why I have reached a conclusion that there is a burden on the claimant to furnish a good reason why the normal rule of privacy should be departed from. Yet beyond statements that open justice is a Good Thing the case for the claimant is strikingly devoid of any reasons why the rule should be departed from. In the statement of facts and grounds the only justification is in the following terms:

"The claimant requires that the allegations against it be made publicly and be heard and determined in public. The fundamental right to a public hearing is conferred on the claimant and the claimant is not required to provide 'compelling reasons' or indeed any justification, for its choice to enjoy that right. Further, there is a strong public interest in public hearings, as providing a safeguard against judicial arbitrariness or idiosyncrasy and maintaining the public confidence in the administration of justice."

Mr Zimmerman's witness statement takes the matter no further.

14. I agree with Mr Jaffey's submission that the stance of the claimant is curious. No nomad has ever before sought a public hearing of disciplinary allegations against it. A hearing in public deprives the claimant of the prospect of a confidential acquittal on unproven allegations; or a private warning if some or all of the allegations are proven. It is very hard to understand why the claimant would want the dirty laundry contained in the case against it washed in public. But it is not for me to speculate as to the claimant's motives. For my purposes, all I need to ask is whether the claimant demonstrated a good reason why the normal rule should be departed from, beyond bland generalisations that open justice is a Good Thing.
15. In argument when pressed by me Mr Assersohn submitted that a good reason for the case to be heard in public was because the LSE was seeking the imposition of a record fine of £650,000. I cannot see how this could possibly justify a departure from the normal rule. If so, then every time a fine greater than that levied before was sought the hearing would be in public. This would be a completely arbitrary and irrational way of operating the rule.
16. In my opinion in the absence of any good reason being furnished by the claimant, the panel was entitled to adhere to the normal rule without further explanation. But in fact, the panel furnished reasons why the rule should be maintained. On 18 November 2016, in response to a request for reasons, the panel stated:

"When considering making its direction of 24 May 2016 in response to a request by ZAI for the hearing to be in public, the ADC considered the fact that both the Statement of Case from the Exchange and the Response to the same from ZAI name a number of individuals and companies and makes comments on their conduct. Some of these individuals and companies are still active in the market and the ADC considered that holding the hearing in public would be unduly prejudicial to their rights, particularly given that they have no notice of these proceedings and therefore no right of reply."

17. Moreover, in her witness statement (in a confidential annex) the chairman of the panel, Elizabeth Kennedy, has gone even further and has given specific details of the third parties, and of the allegations against them. Although the claimant has tried to pick holes in this evidence, I am not satisfied that any serious inroads have been made into the material before the ADC and its reasoning of it. And in any event, I do not think that it was incumbent on the ADC to be drawn into the dust of the arena in the absence of any good reason from the claimant for departure from the normal rule.
18. In my judgment the decision made by the ADC was rational and fair and cannot be impugned. It may have been laconic, but that is of the nature of case management decisions. When it comes to case management decisions in my opinion the general rule should be that "less is more".
19. The claimant further argues that the decision to maintain the normal rule of privacy violated its right under article 6.1 of the European Convention on Human Rights as incorporated into domestic law by the Human Rights Act 1998. This provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

20. It is common ground that in order for this provision to be engaged the ADC must be a "public body" within the terms of section 6 of the 1998 Act; and, further, that it must be making a determination of the claimant's civil rights and obligations. I have heard a good deal of interesting argument about these two aspects but I am satisfied that I do not need to decide them, even if I do incline in favour of the submissions of Mr Jaffey QC and Miss Carss-Frisk QC. AIM seems to me to have far more of the characteristics of a private club than a public body. Moreover, in circumstances where there is no question of the result of the proceedings being a deprivation of the claimant of its ability to practice as an adviser on an alternative exchange, it is hard to see how the second requirement is met. But I do not have to decide definitively these questions as I am wholly satisfied that even if article 6.1 is engaged, it is not violated in this case.
21. Article 6.1 does not prevent national legislatures from providing for generic classes of cases to be heard in private. It does not require that the question of whether or not to impose privacy must be determined without exception on a case-by-case basis. If the opposite were true then COP rule 90 and FPR 27.10 would be per se incompatible with the Convention; and no one has ever suggested that. In B v UK, P v UK [2001] 2 FLR 261 the Strasbourg court had to consider whether the rule of hearing children cases in private was convention compliant. The complainant submitted that a "decision to hold the hearing in private should be taken on an individual basis in each case, and weighty reasons should always be given" (see para 33). In para 39 the court held:

"…while the Court agrees that Art 6(1) states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a State to designate an entire class of case as an exception to the general rule where considered necessary in the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the Court's control. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Art 6(1)." (citations omitted)

22. In my opinion the normal rule promulgated for the proceedings before the ADC holding them in private falls squarely within the final exception within article 6.1. To apply that rule for the reasons stated by the ADC was in my opinion wholly compliant with the terms of article 6.1.
23. Article 6.1 appears to require that every "judgment" must be given in public. As it happens, the substance of judgments of the ADC which go beyond a mere private warning are given in public. However, in B v UK, P v UK the Strasbourg court held at paragraph 48 that a literal interpretation of article 6.1 concerning the pronouncement of judgments would not only be unnecessary for the purposes of public scrutiny but might even frustrate the primary aim of article 6.1, which is to secure a fair hearing. Thus, for that class of private proceedings the convention did not require making available to the general public the judgments. In my opinion proceedings before the ADC would secure compliance with the convention if the result of the proceedings was published, but not necessarily the reasoning.
24. Thus, for the reasons given above I conclude that the challenge to the decision of the ADC to hold proceedings in private is unarguable and permission to seek judicial review of it is therefore refused.
25. I now turn to the second challenge which is to the decision of the ADC not to recuse and replace its panel members. It is said that the panel members are to be fixed with "apparent bias". Actual bias is not alleged.
26. The law concerning recusal on the ground of apparent bias is perfectly straightforward. The test is whether the fair-minded and informed observer (who is neither complacent nor unduly sensitive or suspicious), having considered the facts, would conclude that there was a real possibility that the tribunal was biased. See Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 per Lord Hope of Craighead at [103], and Lawal v Northern Spirit Ltd [2003] UKHL 35; [2004] 1 All ER 187 per Lord Steyn at [14]. For obvious reasons, the bar is set high because otherwise litigants might be tempted to engage in preliminary exercises of "judge picking". For an example of just how high the bar is set see Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556, [2016] 3 All ER 902. A "real possibility" does not mean a 1% chance. It means a level of probability or chance that falls short of 50%, but not by much.
27. In this case the non-sensitive, non-suspicious, non-complacent, fair-minded and informed observer is me. As Lord Radcliffe said in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 728: '. . . [t]he spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself.'
28. Inevitably the exercise is highly fact-specific. In the recent case of Watts v Watts [2015] EWCA Civ 1297 at [28(iii)] Sales LJ bemoaned the syndrome "in cases of this kind of multiplying reference to authority in the hope of finding analogies on which to found arguments one way or the other, and we were presented with a plethora of authorities to address what is really quite a simple matter." In line with that syndrome I have been treated to a host of authorities showing how the settled test has been applied to specific facts.
29. Recusal applications arise quite frequently in relation to part-time fee-paid judges who practice in the same field as the litigants. A number of the cases concern barristers sitting as deputy High Court judges or Recorders. In Watts v Watts the application for recusal was made on the ground that the judge, a QC, was leading one of the barristers before her in another case. In [28(i)] Sales LJ held that the notional fair-minded and informed observer would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges and would understand that those standards are part of a legal culture in which ethical behaviour is expected and high ethical standards are achieved, reinforced by fears of severe criticism by peers and potential disciplinary action if they are departed from. Similar short shrift was given in Azumi Ltd v Zuma's Choice Pet Products Ltd [2017] EWHC 45 (IPEC) to a recusal application on the ground that the Recorder was in the same chambers as one of the barristers in the case.
30. Consider a female QC who sits as a deputy High Court judge in the field in which she practises. She will inevitably have before her colleagues with whom she is in direct competition for new work as a practising barrister. A cynic might say that she might be motivated, consciously or unconsciously, to issue a critical judgment against her colleague in order to improve her prospects for competing for new work against that colleague. Were such a suggestion to be made it would be given very short shrift indeed. It is impossible that the fair observer would conclude that such a motive could arise, let alone that there was a real possibility of it.
31. The cases show that the courts have almost invariably concluded that a professional or other close connection between the fee-paid judge and a party is not a reason for recusal on the ground of apparent bias. Thus, in R v Holderness Borough Council, ex parte James Robert Developments Ltd (1993) 66 P&CR 46 an industry rival of the applicant, who ran a similar sized business and competed with it, was not disqualified by an indirect pecuniary interest in the success or otherwise of a competitor. In AT&T Corp v Saudi Cable Co [2000] 2 All ER (Comm) 625 (CA), an arbitrator was not disqualified notwithstanding that he was a non-executive director of a commercial rival to one of the parties. In R (PD) v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311, a psychiatrist employed by the hospital that was said to have improperly detained the claimant was not disqualified from hearing an application for his discharge. In R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] IRLR 582, a panel consisting entirely of employees of the body carrying out the disciplinary function was not recused. In Zatuliveter v SSHD (Recusal) [2011] SIAC TRS300/2011, Sir Stephen Lander (former Director of MI5 and a specialist in Russian espionage) was not recused from hearing allegations that the appellant was a Russian agent. In Gillies v SSWP [2006] 1 WLR 781 (HL), a doctor who carried out welfare benefit assessments for the Department of Work and Pensions was not recused from hearing an appeal relating to disability benefits paid by that Department.
32. In contrast, in Gautrin v France (1998) 28 EHRR 196, a Strasbourg decision, members of the relevant disciplinary body were already involved in a substantial competitive trade dispute with the defendant in disciplinary proceedings, in which they had already expressed adverse opinions. That was an obvious case where the high bar had been crossed.
33. In my opinion R (Agnello/A1 Veg) v Hounslow LBC [2003] EWHC 3112 (Admin) is not in point. That was a case about an unfair process (receiving secret evidence from competitors) on the part of the decision-makers which unsurprisingly led to a conclusion that there was a real possibility of the panel being biased.
34. In this case the three panel members are Elizabeth Kennedy (Chair), Nicola Mitford-Slade and Dru Danford. Ms Kennedy is a non-executive Director of a number of companies (including two LSE main market investment companies) and a solicitor at Kergan Stewart in Glasgow. Ms Kennedy has over three decades of corporate finance advisory experience with companies listed on both the LSE main market and AIM. She has been Head of Compliance at N+1 Brewin. She is a fellow of the Chartered Securities Institute and the Institute of Secretaries. Ms Mitford-Slade is a barrister and the Head of Legal and Compliance of Smith & Williamson Group Holdings Limited. A company in the Smith & Williamson group has a small nomad business. Mr Danford is the Head of Corporate Finance at Shore Capital, which has a nomad business. He is a Qualified Executive. He qualified as a chartered accountant in South Africa in 1998.
35. Although the panel members have not in fact taken the judicial oath they must be treated as if they had. Thus, they must be taken to have solemnly promised to try the case without fear or favour, affection or ill will. Their independence, professionalism, integrity, experience and expertise is not to be disregarded or downgraded.
36. The claimant's complaint about the panel members is summarised at para 6 above. It says that the panel members might be motivated, consciously or unconsciously, when rendering judgment to drive their competitor from the field so they can pick up the business left behind. Thus, it says, there is a real possibility of bias. On its face this presents as implausible. The claimant only acts for 13 of the 973 AIM companies (i.e. 1.3% of the nomad appointments). Its departure (which the LSE is not seeking) would not release a significant market share. There are 35 other nomads. Therefore, it is hard to see that the claimant's exit would give any material benefit to those nomads to which the panel members are connected.
37. The specific complaints against the individual panel members are as follows.
38. Ms Kennedy: She is a solicitor in part-time private practice in Scotland employed by Kergan Stewart on a modest fixed salary. The great majority of her income, however, derives from her non-executive director appointments and other sources. One of Kergan Stewart's clients is Spark Advisory Partners. Part of Spark's business is as a nomad. It now acts as nomad to one of the companies ("company X") in respect of which the LSE criticises the claimant.
39. Ms Kennedy provides external compliance advice to Spark as an employed solicitor. Spark focuses on a different sector of the AIM market to the claimant. Ms Kennedy receives no additional fee linked to Spark's performance. Neither she nor her employer are likely to benefit from Spark obtaining more nomad work. In respect of the appointment of Spark to act as nomad for company X Ms Kennedy has explained that her involvement in Spark's new client process is only to review the internal take-on memorandum from a compliance perspective. She does not review or assess any aspect of the commercial relationship Spark has with its clients.
40. Obviously, the amount of Ms Kennedy's income that can be indirectly traced to Spark is minuscule. She has no commercial involvement with Spark. I conclude that there is no possibility whatsoever, let alone a real possibility, that she would be guilty of bias, consciously or unconsciously, by virtue of her relationship with Spark.
41. Ms Mitford-Slade: as Head of Legal and Compliance for Smith & Williamson Group Holdings Limited she is responsible for compliance for the whole group of companies, including a large accountancy firm. As mentioned above, one company in that group is a corporate finance entity which contains a nomad business: Smith & Williamson Corporate Finance Ltd. In 2016, corporate finance work comprised around 5% of the group's revenue and nomad work is only a proportion of that. Ms Mitford-Slade's supervisory role involves no day-to-day responsibility for the compliance function of the corporate finance subsidiary which contains the nomad business. Those responsibilities are delegated to others. No significant part of her remuneration is derived from nomad work.
42. I conclude that there is no possibility whatsoever, let alone a real possibility, that Ms Mitford-Slade would be guilty of bias, consciously or unconsciously, by virtue of her relationship with Smith & Williamson Corporate Finance Ltd.
43. Mr Danford: Shore Capital acts as a nomad for under half of its clients. I have been told that Mr Danford is not aware of any instance of competition between Shore Capital and the claimant; this was not disputed. Shore Capital acts mainly for UK companies, whereas the claimant specialises in international clients. Shore Capital acts for clients in various fields including chemicals, telecommunications and media; the claimant appears to act primarily for financial services companies. I was told in argument that a rough estimate of the proportion of revenue of Shore Capital that derives from nomad work was 20%.
44. I conclude that there is no possibility whatsoever, let alone a real possibility, that Mr Danford would be guilty of bias, consciously or unconsciously, by virtue of his position at Shore Capital.
45. Thus, my conclusion is that the second ground of challenge is unarguable. Accordingly, permission to seek judicial review of the decision is refused.
46. That concludes this judgment.