Jersey Evening Post v Al-Thani

CourtRoyal Court
JudgeBailhache, Bailiff and Jurats de Veulle and Allo
Judgment Date02 December 2002
Date02 December 2002
Bailhache, Bailiff and Jurats de Veulle and Allo

N.M. Santos-Costa for the representor;

F.B. Robertson for the first respondent;

M.J. Thompson for the third respondent;

J.D. Kelleher for the fourth respondent;

C.E. Whelan for the fifth respondent.

The second respondent did not appear and was not represented.

Cases cited:

(1) Att. Gen. v. Leveller Magazine Ltd., [1979] A.C. 440; [1979] 1 All E.R. 745, considered.

(2) Att. Gen. (United Kingdom) v. Wellington Newspapers Ltd., [1988] 1 NZLR 129, followed.

(3) Bank of Scotland (Governor & Co.) v. A Ltd., English Chancery Division, June 23rd, 2000, unreported, followed.

(4) Bhander, In re, 1998 JLR N-18, considered.

(5) Buttes Gas & Oil Co. v. Hammer (No. 3), [1981] Q.B. 223; [1980] 3 All E.R. 475, considered.

(6) Esteem Settlement, In re, 1995 JLR 266, considered.

(7) G v. A, 2000 JLR 56, applied.

(8) Gio Personal Invs. Services Ltd. v. Liverpool & London S.S. P. & I. Assn. Ltd., [1999] 1 W.L.R. 984, followed.

(9) Hodgson v. Imperial Tobacco Ltd., [1998] 1 W.L.R. 1056; [1998] 2 All E.R. 673, considered.

(10) Public Trustee v. Cooper, English Chancery Division, December 20th, 1999, unreported, followed.

(11) R. v. Legal Aid Board, ex p. Kaim Todner (a firm), [1999] Q.B. 966; [1998] 3 All E.R. 541, followed.

(12) Rabaiotti 1989 Settlement, In re, 2000 JLR 173, considered.

(13) S Settlement, In re, 2001 JLR N [37], applied.

(14) Scott (or Morgan) v. Scott, [1913] A.C. 417; [1911-13] All E.R. Rep. 1, followed.

(15) Settlement, In re a, 1994 JLR 139, considered.

(16) V.G.M. Holdings Ltd., In re, [1941] 3 All E.R. 417, followed.

Additional cases cited by counsel:

Att. Gen. (England & Wales) v. Observer Ltd., [1990] 1 A.C. 109.

Att. Gen. (England & Wales) v. Newspaper Publishing PLC, [1997] 1 W.L.R. 926.

Att. Gen. (England & Wales) v. Times Newspapers Ltd., [1974] A.C. 273.

Central Television PLC, Re, [1991] 1 All E.R. 347.

Commonwealth of Australia v. John Fairfax & Sons Ltd. (1980), 147 C.L.R. 39; 32 ALR 485.

Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374.

Crook, Re, [1992] 2 All E.R. 687.

Derbyshire C.C. v. Times Newspapers Ltd., [1993] A.C. 534.

Diennet v. France (1995), 21 E.H.R.R. 554.

Esteem Settlement, In re, 2001 JLR N [8].

Federal Trust Co. Ltd. v. Macdonald-Smith, Guernsey Royal Ct., April 6th, 2001, unreported.

Glazebrook v. Housing Cttee., 2000 JLR 301.

Hodgson v. United Kingdom (1987), 10 E.H.R.R. 503.

Home Secy. v. Rehman, [2001] 3 W.L.R. 877.

Johnson v. Walton, [1990] 1 FLR 350.

Kelly v. B.B.C., [2001] Fam. 59; [2001] 1 All E.R. 323.

Maister v. Rind, Royal Ct., June 14th, 1995, unreported.

R. v. Chief Registrar of Friendly Socies., ex p. New Cross Building Socy., [1984] Q.B. 227.

R. v. Horsham JJ., ex p. Farquharson, [1982] Q.B. 762.

Rosedale (J.W.) Invs. Ltd., In re, 1995 JLR 123.

Yachia v. Levi, Royal Ct., March 26th, 1998, unreported.

Young v. Att. Gen., 1999 JLR 17.

Legislation construed:

Royal Court Rules 1992 (R. & O. 8509), r.13/1: The relevant terms of this rule are set out at para. 22.

Trusts (Jersey) Law 1984, art. 47(1):

"A trustee may apply to the court for direction concerning the manner in which he may or should act in connexion with any matter concerning the trust and the court may make such order, if any, as it thinks fit."

art. 47(3): "An application to the court for an order or declaration . . . may be made by the Attorney General or by the trustee or a beneficiary or, with leave of the court, by any other person."

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmnd. 8969), art. 6(1): The relevant terms of this article are set out at para. 28.

Text cited:

Jacob, The Fabric of English Civil Justice, at 22-23 (1987).

Trustspowers and duties of trusteesapplication for directionsprocedurenon-adversarial matters heard in private if individual's right to privacy outweighs need for open justicecourt may ban publication of judgment and media coveragehostile actions to be heard in open courtconfidentiality of private trusts upheld in Jersey to maintain confidence in trust relationshipapproach compatible with European Convention on Human Rights, art. 6(1)

Civil Procedurehearingin camera proceedingsdetails of proceedings confidential but judgment to be made public whenever possiblepotential embarrassment, convenience or parties' preference irrelevantpotential prejudice to parallel criminal proceedings may be sufficient

Civil Procedurehearingin camera proceedingsconfidential materials concerning national security of friendly foreign state not to be made publiccourt may accept state's assertion that publication damaging in absence of compelling contrary considerationsappropriate for courts to act according to principle of comity

The plaintiff sought the discharge of two orders of the court made in proceedings under art. 47 of the Trusts (Jersey) Law 1984.

The first defendant, a member of the ruling family of the state of Qatar and Minister of Foreign Affairs, was being investigated in respect of the payment of commissions to certain Jersey trusts by foreign companies in relation to arms contracts with Qatar, following a suspicious transaction report by the trustee. He made an art. 47 application to the court which was designed to circumvent a police restriction on the distribution of trust funds but it was opposed by the Attorney General on the ground that granting it could amount to directing the trustee to commit a criminal offence. The court ordered that the representation would be heard in camera (the "first order") and, at the hearing, confidential evidence relating to the criminal investigation, the first defendant's activities and the defence policy of Qatar was adduced. When the plaintiff newspaper published an article describing, in broad terms, the nature of the application, the State of Qatar, a party to the proceedings, complained. The court responded by banning all media coverage of the proceedings (the "second order") and ordering that a full transcript of the hearing be taken. The court's judgment refusing the application was not released and the first defendant later discontinued the proceedings. The plaintiff brought the present application prior to the discontinuance of the proceedings. The Attorney General then indicated that the investigation into the conduct of the first defendant was at an end, though the trustee was still being investigated for regulatory offences.

The plaintiff submitted that the first order should be discharged to allow the release of the hearing transcript and the court's judgment as (a) civil proceedings in Jersey were conducted openly and in public except in exceptional circumstances; (b) it had not been appropriate for the court to hold a highly-contentious art. 47 application in camera, as privacy was not necessary to do justice in the case and the private hearing was held merely to avoid embarrassment to the parties; and (c) if it was appropriate to do so in this case to prevent prejudice being caused to the criminal proceedings, that consideration no longer applied. Moreover, the second order should be discharged to allow the plaintiff to report and comment on the proceedings.

The first defendant submitted in reply that (a) as the trust proceedings had been discontinued, the court was functus officio and could not undo the orders it had made in the proceedings; (b) the art. 47 application had correctly been heard in private because it was administrative in nature and to avoid causing prejudice to the ongoing criminal investigation; (c) the release of the transcript would make public confidential information given to the court because it was sitting in private and encourage further articles alleging that the first defendant had acted improperly; and (d) the court's judgment should not be released because adverse inferences might be drawn from the nature of the application.

The State of Qatar submitted in reply that (a) the presumption that justice should be done in public was rebuttable, as a matter of comity and in the public interest, to safeguard the national security of Qatar; and (b) it was in the United Kingdom's interest that the contents of confidential documents concerning the interests of other friendly sovereign states were not disclosed by a private litigant without their consent.

The trustee submitted in reply, inter alia, that the transcripts and court judgment should not be released because (a) it was still being investigated for regulatory offences; (b) the judgment contained the names of certain persons who were not involved in the proceedings and not represented in court; and (c) the court had indicated that it would uphold the duty of confidentiality that was central to the client/trustee relationship unless there was good reason not to do so.

The court also considered the use of the terms "in camera" and "in chambers" to denote private hearings.

Held, allowing the application in part:

(1) The court was not functus officio because (a) the reporting prohibition was a continuing obligation and, if the circumstances had changed, it was open to the court to review or discharge its order; (b) there could be no appeal against the imposition of the prohibition until the court of first instance had considered whether to discharge the order; (c) the plaintiff's representation had been correctly brought before the discontinuance of the substantive trust proceedings and it would be unjust to discontinue those proceedings to bring to an end the court's jurisdiction to determine issues properly placed before it; and (d) even if the first order (that the representation be heard in camera) was effectively dead, the court had an inherent jurisdiction to discharge it if it was just to do so ( paras. 8-11).

(2) The principle of open justice had not yet found statutory...

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