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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Cleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd  EWHC 2101 (TCC) (31 August 2005)
Cite as:  EWHC 2101 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| CLEVELAND BRIDGE UK LIMITED
|- and -
|MULTIPLEX CONSTRUCTIONS (UK) LIMITED
Midway House, 27/29 Cursitor Street, London EC4A 1LT.
Telephone No: 020 7405 5010. Fax No: 020 7405 5026
MR. PAUL DARLING QC (instructed by Messrs. Clifford Chance) for the Respondents
Crown Copyright ©
JUDGE DAVID WILCOX:
"Any other person may" and I go to (b): "if the court gives permission, obtain from the records of the court a copy of any other document filed by a party ...."
In a letter of 18th August 2005 Clifford Chance explained the reasons for resisting the application. I quote from that letter:
"Our client is obliged to observe the rules of the Australian Stock Exchange, in particular chapter 3 concerning continuous disclosure. If our client were to consent to your application, documentation concerning these proceedings could become disclosable by operation to the exception to Rule 3.1 of the ASX Rules which could in turn oblige our clients to comment on any and all market or other rumours concerning these proceedings, whether such rumours emanate from the documents found at Court or otherwise. Our Client does not wish to become involved in litigating these matters in the press, not least because the proceedings are at a relatively early stage and any speculation concerning the outcome of the proceedings would be unhelpful and more likely than not inaccurate.
There are no public interest considerations in circumstances where your programme will not be aired in this jurisdiction. More generally (and to the extent that this is at all relevant), our Client was very surprised by the statements in your fax of 15 August which imply that our Client has not cooperated with your programme".
They went on to make the point that they had given their co-operation.
"The documents relating to the Court proceedings are voluminous and the issues involved are complex, thereby necessitating a lengthy trial next year. Our Client is concerned that, notwithstanding best intentions, it would be extremely difficult for a fair and balanced representation of those proceedings to be given in a short television documentary. The consequences to our Client and its stock price of your programme falling short in this respect could be substantial and irreparable. Our Client would, understandably, prefer for the issues in dispute to be resolved in Court at the appropriate time".
"I think that in the case of documents read by the court as part of the decision-making process, the court ought generally to lean in favour of allowing access in accordance with the principle of open justice as currently understood, notwithstanding the view that there may have been the view that may have been taken in the past about the status of hearings in chambers".
"Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity, there is no justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial".
"If the way the courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice".
"In litigation of this sort, it is difficult if not impossible for the court to seek or to prevent direct or indirect communication with the media. In our judgment in this case the court should not have attempted to do so. The best way of avoiding ill-informed comments in the media in the case of this nature when the interest of the public is high, is for the court to be as open as is possible and practicable, not only in relation to the trial but also in relation to the interlocutory proceedings which have to take place prior to that trial. The other action which can be taken to reduce the risk of trial by media and the absence of cooperation between the parties affecting the conduct of the proceedings is to ensure that as soon as is practical a timetable is laid down for bringing the case to trial as early as possible, giving any directions to the parties which are necessary in order to require them to co-operate in achieving this".
"Once an entity is or becomes aware of any information concerning it that a reasonable person would expect to have material effect on the price or value the entity's securities, the entity must immediately tell the Australian Stock Exchange that information".
Listing Rule 3.1.A goes on to set out the exceptions to the General Rule contained in the Listing Rule.
"The statement made in the second sentence of point 1 of the letter from Clifford Chance .... does not properly reflect the operation of Listing Rule 3.1 or its exception. The exception contained in listing rule 3.1.A only deals with the issues which must be satisfied if an entity is to be exempted from complying with its obligation of disclosure as required by Listing Rule 3.1. Listing Rule 3.1.A does not, by its operation, make documentation or information disclosable".