Private v Public Hearings – that is the question

ZAI Corporate Finance Ltd v AIM Disciplinary Committee of the London Stock Exchange PLC (London Stock Exchange PLC, interested party), [2017] EWCA Civ 1924, 30 August 2017

Key note

Generally reflecting the reasoning of Mostyn J in R (ZAI Corporate Finance Ltd) v AIM Disciplinary Committee of the London Stock Exchange PLC (London Stock Exchange, interested party) [2017] EWHC 778 (Admin), the Court of Appeal dismissed an appeal and refused a nominated adviser’s application to quash the decision of the Alternative Investment Market (AIM) Disciplinary Committee that a disciplinary hearing should be held in private.

Background

Disciplinary proceedings were brought by the London Stock Exchange before the AIM Disciplinary Committee, against ZAI Corporate Finance Ltd (ZAI). ZAI was known as a ‘nominated adviser’ or ‘nomad’. A dispute arose surrounding the issue of whether the disciplinary hearing should be held in public, as ZAI contended, or in private, as AIM directed.

Rule C22.1 of the AIM Disciplinary Procedures and Appeals Handbook 2014 states:

‘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".

ZAI did apply, albeit unsuccessfully, for permission to bring judicial review proceedings regarding the issue of holding the hearing in public.

Permission was granted to appeal that decision to the Court of Appeal Civil Division. ZAI sought to interpret the wording of C22.1 such that the word ‘requiring’ in the rule contained an obligation on AIM to conduct the hearing in public once asked to do so.

Decisions

1. Meaning of rule C22.1
   The first issue considered was whether ZAI’s interpretation of C22.1 was correct. Sir James Mumby held the two key phrases in rule C22.1: “the right to ask” and “requiring” had to be read together and had to be construed in a sense in which each phrase was compatible with the other. As such, the construction of the wording of rule C22.1 had not entitled ZAI, a nomad, to demand a public hearing, but it was entitled to request such a hearing. AIM was allowed to exercise its discretion whether or not to agree to hold the hearing in public.
   
   As such, when taking into account the wording of rule C22.1, the onus was on ZAI to advance “good reason” for the hearing to take place in public. Sir Mumby determined that ZAI’s reliance on the primary presumption of open justice was not sufficient in the circumstances.
    
2. Discretion
   The second issue was whether such an exercise of discretion by AIM was flawed in the circumstances of the case. Sir Mumby respectfully agreed with Mostyn, J’s judgment insofar as it was held that: “the decision made by ADC [AIM Disciplinary Committee] was rational and fair and could not be impugned”.
    
3. Article 6 ECHR
   The argument surrounded the reliance on Article 6 of the European Convention of Human Rights (ECHR): the right to a fair trial; whether Article 6.1 ECHR applied, and if applicable, whether it had been breached. Although it is established law that as per Article 6.1 of the ECHR there is a general rule that civil proceedings should be heard in public, it was not inconsistent for an entire exception to this rule where is was considered necessary in the interests of morals, public order or national security provided the judgment is pronounced publically. Therefore the AIM’s decision to hold the hearing in private was compliant with both domestic rule and with Article 6.1.
   
   The appeal was dismissed and ZAI’s application to quash the decision of AIM that the hearing be in private was refused. Permission for judicial review was also refused.

Commentary

This is an interesting case, especially for those who work in the disciplinary/regulatory sector. Ordinarily, the presumption is that hearings will be in public, with the Respondent arguing that it should be held in private. Reasons such as damage to reputation and a breach of human rights, principally the right to a private family life, are often cited. As such, this case is the reverse of the ordinary state of affairs.

The Court decided that whilst the primary presumption is that hearings will be conducted in public, unless there is an overriding reason as to why the hearing should be conducted in private, rules which are drafted with a presumption that a hearing will be conducted in private do not automatically offend the ‘open justice’ principle.