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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ZAI Corporate Finance Ltd, R (on the application of) v AIM Disciplinary Committee of the London Stock Exchange PLC & Anor [2017] EWHC 778 (Admin) (11 April 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/778.html Cite as: [2017] EWHC 778 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN on the application of ZAI Corporate Finance LTD |
Claimant |
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- and - |
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AIM Disciplinary Committee of the London Stock Exchange PLC |
Defendant |
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- and - |
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London Stock Exchange PLC |
Interested Party |
____________________
Ben Jaffey QC (instructed by Latham & Watkins) for the Defendant
Monica Carss-Frisk QC (instructed by CMS) for the Interested Party
Hearing date: 6 April 2017
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Crown Copyright ©
Mr Justice Mostyn:
"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.
"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."
"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.
"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.
"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."
"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."
"…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)