LAW REPORT / Press can report civil actions on Maxwell pensions

MGN Pension Trustees Ltd v Bank of America National Trust and Savings Association and Credit Suisse.

Bishopsgate Investment Management Ltd v Credit Suisse Chancery Division (Mr Justice Lindsay)

12 December 1994

Since there was no substantial risk that criminal proceedings alleging crimes in relation to the Maxwell pension funds would be prejudiced by press reports of civil actions concerned with those funds, there could be no order postponing the reporting of the civil actions. The public interest of open justice and the freedom of the press outweighed the public interest in ensuring a fair trial.

Mr Justice Lindsay refused to make an immediate order postponing publication of any report of civil proceedings currently being heard.

The civil proceedings were concerned with assets of pension funds of companies associated with the late Robert Maxwell. They involved allegations of breach of trust in respect of the pension funds, and, in one case, fraud involving three individuals who were also defendants in criminal proceedings.

On 5 December 1994, the 40th day of the civil actions, the Serious Fraud Office applied under section 4(2) of the Contempt of Court Act 1981 for an order postponing publication of reports of the civil actions on the basis there was a substantial risk of prejudice to the administration of justice in the criminal proceedings to begin in April 1995. The application was opposed by six newspapers.

Alan Suckling QC for the SFO; Michael Hill QC and James Richardson (Russell Jones Walker); Edmund Lawson QC and Peter Doyle (Kingsley Napley); Philip Hackett (Burton Copeland) for the defendants in the criminal proceedings; Edward Bannister QC (SwepstoneWalsh) for the press; Michael Crystal QC, Geoffrey Vox QC and Stephen Atherton (Travers Smith Braithwaite) for MGN; Philip Heslop QC, John Brisby, Andrew Fletcher and Christopher Harrison (Stephenson Harwood) for Bishopsgate; Raymond Kidwell QC and Richard Jones (Rowe & Maw) for Bank of America; Gabriel Moss QC, William Trower and David Alexander (Clifford Chance) for Credit Suisse.

MR JUSTICE LINDSAY said that three questions arose under section 4(2): was there a substantial risk of prejudice to the criminal trial? was an order necessary for avoiding that risk? Ought the court in its discretion make any order? The courts recognisedthe importance of considering not just how to avoid the described risk, if found to exist, but whether to avoid it.

There was an overlap between the matters in issue in the criminal trials and in the civil actions. There had been no controversial evidence of witnesses in the civil actions in terms attributing personal fraud or personal breach of trust to any of the defendants in the criminal trials.

The parties in the civil actions were proceeding under a series of "working hypotheses" which simply supposed that certain dispositions of pension fund assets were made fraudulently or in breach of trust but which did not require detailed evidence of thekind necessary if one had to attribute particular frauds to particular people.

It was not possible to see any real likelihood of sensational reporting of any evidence emerging from that process. To judge from the press's reaction so far, not only would there be no sensational reporting but there would be little or no reporting at all of the continuing hearing. So far the press had been either uninterested or thoroughly responsible.

In respect of the hearing of the civil actions, there could be no substantial risk of prejudice and there could be no order as to the reporting of the hearing in the civil actions.

By framing the section as it did, the legislature contemplated that a risk of prejudice which could not be described as substantial had to be tolerated as the price of an open press and that even if the risk was properly to be described as substantial, apostponement order did not automatically follow.

Had there been a substantial risk, it would have been only of very slight prejudice and, as a matter of discretion, a risk of such prejudice would have been outweighed by the requirement of open justice and legitimate public interest and concern in relation to freedom to report the civil actions as they occurred.

Although any likely reporting of arguments and evidence did not require the making of an order, when the judgment was given, the case for a postponement order might be different. The question of whether reporting of the judgment should be postponed was stood over to an appropriate time.

Ying Hui Tan, Barrister