IN THE HIGH COURT OF JUSTICE BETWEEN (1) CENTRAL BANK OF TRINIDAD AND TOBAGO (2) COLONIAL LIFE INSURANCE COMPANY (TRINIDAD) LIMITED AND

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1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN (1) CENTRAL BANK OF TRINIDAD AND TOBAGO (2) COLONIAL LIFE INSURANCE COMPANY (TRINIDAD) LIMITED AND (1) LAWRENCE DUPREY (2) LOUIS ANDRE MONTEIL (3) CL FINANCIAL LIMITED (4) DALCO CAPITAL MANAGEMENT LIMITED (5) STONE STREET CAPITAL LIMITED (6) GITA SAKAL Claimants Defendants BEFORE THE HONOURABLE MR. JUSTICE ROBIN N. MOHAMMED Appearances: Mr. B. St. Michael Hylton, Q.C., leading Mr. Ian Benjamin, Mr. Jagdeo Singh and Mr. Roger Kawalsingh instructed by Ms. Elena Araujo for the Claimants Mr. Andrew Mitchell Q.C., leading Mr. Rajiv Persad instructed by Mr. Lionel Luckhoo for the 1 st and 4 th Defendants DECISION ON 1 ST AND 4 TH DEFENDANTS APPLICATION TO REGULATE THE DISSEMINATION OF COURT DOCUMENTS (APPLICATION FOR GAG ORDER ) Page 1 of 19

2 Introduction, Application and Procedural History 1. Before this Court is the 1 st and 4 th Defendants ( the Applicants ) Notice of Application filed on the 13 th December, 2012, supported by an affidavit of even date, seeking the following orders: (a) that non-parties to the present claim be barred from obtaining copies of any of the court documents filed in the claim; (b) that the parties be barred from using or disseminating any of the court documents filed in the claim for any purpose other than the claim; and (c) that the parties be barred from disclosing any matter or thing arising in court to the print and electronic media. 2. Prior to this application, Dean-Armorer J., pursuant to an agreement reached by the parties, ordered that the Court file relating to this claim be sealed until further order 1. The parties agreed not to use or disseminate the Defences filed in the claim for any purpose other than the claim itself. 3. On the 19 th March 2014, the Applicants filed written submissions in which they reformulated the orders sought in the Application of the 13 th December, They now seek the following orders: (a) that there be a bar imposed on non-parties to this action from obtaining copies of any of the documents filed by the 1 st and 4 th Defendants in this action subject to the provisions outlined at (b) below. (b) that the persons or classes of person permitted to obtain copies of the Defence and filed material of the 1 st and 4 th Defendants be restricted to those who have applied for and obtained leave so to do from this Court. (c) that the parties do not disclose any of the material filed by the 1 st and 4 th Defendants to the print or electronic media without leave of the Court. (d) that there be a bar imposed on the parties to this action from disseminating any of the Court documents filed herein by the 1 st or 4 th Defendants for any purpose other than CV without leave of the Court. Issue 4. The main issue to be determined is whether this Court ought to grant the application to regulate the dissemination of Court documents in the terms specified by the Applicants or at all th November, Page 2 of 19

3 5. In determining this main issue, the following issues must necessarily be resolved: Whether the Applicants circumstances are such as to warrant derogation from the open justice principle: Whether the Applicants have satisfied this Court that the orders sought are strictly necessary; and Whether the Applicants have established that the orders sought are both necessary and proportionate. Applicable Law and Legal Principles 6. There is no dispute between the Applicants and the Claimants (hereinafter referred to as the parties ) that the principle of open justice governs this case. However, the Applicants submit that as with all rules, there are exceptions and their circumstances are exceptional so as to warrant derogation from that principle. On the other hand, it is the Claimants position that the Applicants circumstances are not such as to warrant departure from the general rule. Further, the Claimants are of the view that even if the Court was minded to derogate from open justice, the proposed derogations are more than is needed to ensure that justice is administered effectively. 7. The parties agree that the relevant principles pertaining to the concept of open justice are encompassed in the Report of the Committee on Super Injunctions: Super- Injunctions, Anonymised Injunctions and Open Justice 2 ( the Report ). 8. The Report states that the open justice principle is a long established and fundamental aspect of our justice system and of any liberal democracy committed to the rule of law 3. The Report refers to the case of Scott v. Scott [1913] A.C. 417 which explains the importance of the principle. Therein it was said that it is: on the whole, the best security for the pure, the impartial and efficient administration of justice, the best means for winning for it public confidence and respect. 9. It has been recognized that the principle is not an absolute one. However, it is clear that derogation from the rule is not to be lightly permitted and it was stated that- whether an exception to the general principle is sought either to protect the private life of parties or to further the interests of justice in some other way, the court will ultimately have to apply the same test- that of strict necessity. It is therefore readily 2 This report is also known as Lord Neuberger s Report and is dated 20 th May, of the Report. Page 3 of 19

4 apparent why limits imposed on the general principle will only ever properly be wholly exceptional 10. It is useful at this juncture to consider in context the approach which local Courts may now have to the principle of open justice. Doing so necessarily requires a consideration of Order 63 rule 6 of the Orders and Rules of the Supreme Court of Judicature of Trinidad and Tobago 1975 ( the RSC 1975 ). These Rules, which were in force prior to the Civil Proceedings Rules 1998 (as amended) ( CPR ), governed the approach of the High Court and the Court of Appeal to civil procedure. Order 63 rule 6 concerned the Right to Inspect etc. Certain Documents Filed. More particularly, that rule provided as follows: 6.1 Any person shall, on payment of the prescribed fee, be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Registry or a Sub-Registry, namely:- (a) the copy of any writ of summons or other originating process; (b) any judgment or order given or made in Court or the copy of any such judgment or order; and (c) with the leave of the Court, which may be granted on an application made ex parte, any other document. [Emphasis mine]. 11. Thus, under Order 63 rule 6.1(c), non-parties were not automatically entitled access to filed documents other than the originating process or any judgment or order given or made in open Court. Rather, the permission of the Court was required to obtain any other document. Order 63 rule 6(1) essentially mirrored the provision found in the Supreme Court Practice Rules of the United Kingdom ( UK ). These Rules governed civil procedure in the UK before the coming into force of their Civil Procedure Rules in April of Notably, in the UK, provisions dealing with the supply of documents from Court records, more particularly, that the access to other documents by non-parties is only permissible with leave of the Court, were imported into their new Civil Procedure Rules 4. Thus, there was in effect substantive continuity of that particular provision from the old rules (the Supreme Court Practice Rules) 5 to the new Rules (the Civil Procedure Rules). 13. The White Book on Civil Procedure 2005 Vol. 1 explained the position regarding the supply of documents from Court records to non-parties as follows: 4 See Rule 5.4(1)(c) of the UK Civil Procedure Rules White Book on Civil Procedure See Order 63 Rule (4)(1)(c) of the Supreme Court Practice Rules 1967 of the UK. Page 4 of 19

5 Sub rules (3) to (9) of r. 5.4 do not make sense unless they are read as indicating that, save as permitted under the rules, documents on a court file of particular proceedings are not intended to be inspected or copied. That is to say, a court file is not a publicly available register. Documents in the file do not become available for inspection or copying save to the extent that access to specified documents or classes of documents is granted, either generally under the rules or by leave of the court in a particular case (Dobson v. Hastings [1992] Ch. 394, Sir Donald Nicholls V-C). 14. Rule 5.4(5)(c) of the UK Civil Procedure Rules ( updated to April 1,2005) stipulates that any other person may, if the Court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person. The new Rule 5.4C of the UK Civil Procedure Rules was introduced by the Civil Procedure (Amendment) Rules Rule 5.4C(2) states that a non party may, if the Court gives permission, obtain from the records of the Court a copy of any other document filed by a party, or communication between the Court and a party or another person. The substantive position is thus the same: a non party has no right to documents on the Court file except where the rules so specify and the Rules dictate generally that documents other than originating processes cannot be viewed by non-parties without the Court s permission. 15. Unlike in the UK, in Trinidad and Tobago the provisions of Order 63 rule 6(1)(c) of the RSC 1975 were not incorporated into the New Rules. Glaringly, the Civil Proceedings Rules 1998 (as amended) contain no provision which deals with the right of access by non-parties to certain documents filed. In the UK, even where the provision continues to exist, the substantial weight given to open justice is evident in the requirement that the rule may only be derogated from where it is strictly necessary. Indeed, it has been said that there should be as few impediments as possible to the reporting of cases, not only by specialist law reporters, but also by the national and local press. Members of the public should not lose the ability to know the contents of a witness s evidence which would have been given orally under earlier practices 6. Further, it has been stated that applications to derogate from the open justice principle must be subjected by the Courts to intense scrutiny It stands to reason that in Trinidad and Tobago, where the provisions dealing with the restriction of access to Court documents have been excluded from the Civil 6 The White Book on Civil Procedure 2013, pg See Terry v Persons Unknown [2010] 1 FCR 659 at [108]; JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 at [21(4)]. Page 5 of 19

6 Proceedings Rules, the open justice principle is all the more important and any application to derogate therefrom ought to be subjected to even greater scrutiny. 17. The Report highlights that the onus is on the applicant who seeks derogation from the general principle to establish through very clear and cogent evidence that it is strictly necessary, that is, that without the specific exception, justice cannot be done. It must be demonstrated therefore that the exception sought is both necessary and proportionate 8. The Applicants submit that given their circumstances, derogation from the open justice principle is strictly necessary and that the relief sought by them is proportionate. The Claimants are of the view that the Applicants have not established that the relief sought is strictly necessary or proportionate and submit that their application should be refused. 18. I move now to a consideration of the grounds advanced by Applicants in support of their claim that the relief sought by them is strictly necessary. The Applicants submit that the Court, in determining this application, must have regard to the constitutional rights of the Defendants. If steps are not taken to regulate the dissemination of the material relative to the 1 st and 4 th Defendants, there is a real likelihood that the protections that exist to ensure a fair trial for the 1 st and 4 th Defendants may be rendered nugatory should the information filed by them make its way into the public domain via the media or be passed over to the investigators in the criminal process. a. Protection against Self-Incrimination 19. The Applicants state that under the Constitution of Trinidad and Tobago, any person charged with a criminal offence is entitled to a right to a fair hearing in accordance with the principles of fundamental justice. The right to a fair trial includes the right of anyone charged with a criminal offence to remain silent and not contribute to incriminating himself. They say that the 1 st Defendant is entitled, if he so wishes, to remain silent in relation to any criminal investigations and in the absence of statutory obligations, he does not have to provide any material in his possession to investigators and he is not obliged to say anything under the law. The Applicants submit that there are ongoing criminal investigations and by virtue of the civil proceedings filed against the 1 st and 4 th Defendants, the former has been compelled to file a Defence and commit to answering the Claimants case as well as setting out a positive case of his own. 8 See 1.27 of the Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice. Page 6 of 19

7 20. According to the Applicants, there is a real and substantial risk that if the contents of these documents filed by them are accessible to the public at large, then the investigators can seek to access this material to assist in their investigations. Unless there is some reasonable mechanism to regulate the dissemination of the Defence material filed, the risk remains that the 1 st Defendant s right to remain silent will be rendered nugatory and useless. Further, they contend that his right not to incriminate himself will be violated where use can be made by third parties of the material disclosed in the defence that has been compelled in these proceedings. 21. The Claimants have raised persuasive arguments in response to this matter concerning the privilege against self-incrimination. Firstly, they raise the issue of the timing at which the Applicants have sought to rely upon this privilege. Reference is made by the Claimants to the case of Compagnie Noga D Importation et D Exportation v. Australia and New Zealand Bank Group Limited 9. In that case Mr. Abacha was ordered to file an affidavit disclosing his assets. He did so in April 1999 without objection and without raising any issue of privilege. He then filed supplemental affidavits in October 1999 and April 2001 regarding his assets and again did not claim privilege against self-incrimination. In February 2006, Clarke J. ordered that another affidavit be filed disclosing assets. This time Mr. Abacha filed an affidavit claiming privilege against self-incrimination while still providing updates on the assets previously disclosed. Steel J. noted that Mr. Abacha had ample opportunity to claim privilege against self-incrimination and did not do so. The learned judge regarded this failure as a waiver of privilege as it related to the disclosure of assets. He stated that - in my judgment, the genie was out of the bottle. It was not open to Mr. Abacha to seek to impose ex post facto a privilege which he had not advanced when the disclosure was made. In short, Mr. Abacha had waived any claim to privilege so far as disclosure of his assets is concerned Indeed, to me, it would seem that the time for raising the issue of breach or rather, likely breach of the privilege against self-incrimination would have been prior to filing the Defence. Like Mr. Abacha who disclosed his assets, the Applicants went ahead and filed their Defence containing material which they now claim ought to be subject to the privilege (and I will traverse this very point concerning the nature of that material as we progress in this judgment). They failed to avail themselves of the opportunity to raise the privilege then. Having provided what they deem to be protected material therein and not raised issue at the time of filing, they now seek to 9 [2007] EWHC 85( Comm). 10 Paragraph [32]. Page 7 of 19

8 do so in support of their claim to restrict public access to or the dissemination of Court documents. The onus is on the Applicants to satisfy the Court that derogation from the open justice principle is strictly necessary. It is a heavy burden to discharge on their part and the threshold imputed by strictly necessary is arguably high. Having provided the information in their Defence without having raised the privilege then, the Applicants cannot now seek to rely upon a privilege which they had not advanced at the time the disclosure was made. I am not convinced that they have managed to meet the high threshold of establishing that the relief sought is strictly necessary in the circumstances. It is not that they were barred from raising the privilege at the time the Defence was required to be filed. It was open to them to raise the argument then and seek to prevent disclosure of what they alleged is the protected material. They chose not to pursue that avenue and opted to provide the information. Having taken that course, it would be illogical to conclude that having made that choice, the relief sought is now to be deemed strictly necessary based on the potential breach of the very privilege which it can be concluded, they did not consider it necessary to invoke at the time of filing or more particularly, when they opted to proceed with the provision of information. 23. This brings me to the second point. The Applicants have claimed that they were compelled to file a Defence. Counsel for the Applicants submit that in so doing they were in essence, mandated to provide certain information as the CPR do not allow for bare denials to be made. They highlighted the monumental consequences which may have been attendant upon the Applicants in terms of judgment should they have failed to file the Defence and submit that it cannot realistically be said that they did not have to file same. 24. The Claimants submit that the issue is more refined than that of whether the Applicants were compelled to file a defence but rather, it is whether they were compelled to file that Defence to make statements which may be self-incriminatory. The Claimants say that compelling someone to give evidence for the purpose of selfincrimination has been construed in a specific manner by the Courts and the filing of a defence does not fall within that scope. Reference was made to the case of VTFL v. Clough [2001] EWCA Civ where Waller J. stated as follows: First the privilege is against being compelled and this must mean being compelled by lawful authority or compelled on pain of punishment Second the privilege in any civil proceedings is against being compelled to answer questions or produce documents. If the privilege had been against being required to put in a defence, one would expect that to have been established heretofore Third the privilege seems to be against being compelled to provide Page 8 of 19

9 evidence or information. So far as pleading a defence is concerned there is no compulsion to put in a defence at all. Judgment can be allowed to go in default. Furthermore if a defence is pleaded there is no compulsion to plead anything which provides information to the claimant. A claimant can be put to proof (see CPR 16.5). Of course if the defendant intends to put forward a different version of events from that given by the claimant, he is required by CPR 16.5(2)(b) to put forward that version. But I stress there is no compulsion on him to do so because there is no compulsion on him to put forward a different version of events as opposed simply to putting the claimant to proof of the allegations that the claimant makes. 25. It is understandable that the Applicant would feel as though he was required to flesh out his defence as the consequences of not doing so would be costly to him. That said, this does convert the situation into one where he cannot be said to have had a choice. He was not compelled to file a defence. The fact remains that he could have opted not to file or further, opted to respond in a limited fashion and put the Claimant to proof. While these may not be desirable options they were nonetheless open to him. He did not choose those routes. As such, the argument that he was compelled to file a defence and that his right not to incriminate himself would be violated where use can be made of it by third parties rests on a flawed foundation. He was not compelled to provide a Defence and further, there was no obligation to provide the information that he did. Accordingly, having pursued the avenue of opting to do so, he has not convinced me that the relief sought is strictly necessary when it was open to him to avoid having to seek it in the first place by not providing the information which he alleges is protected. 26. In any event, I note that the Claimants raised the point that as far as they are aware, the Applicants have not raised any matters which could be said to be selfincriminating. The Claimants submit that the Applicants have mounted a defence that consists of a denial of the Claimants Claim. I note that the thrust of the Claimants claim as it relates to the 1 st and 4 th Defendants is that the 1 st Defendant mismanaged, misapplied and misappropriated income and assets of CLICO, its policyholders and creditors 11 and they have also claimed that he breached and/or assisted in the breach of various statutory and common law duties and trust. 12 They also claimed that the 4 th Defendant knowingly received misappropriated assets and payments and that it dishonestly assisted the 1 st and 2 nd Defendants to breach fiduciary duties and trust See paragraph 1(1) of the Re-Amended Statement of Case ( RASOC ). 12 See paragraphs of the RASOC. 13 See paragraphs of the RASOC. Page 9 of 19

10 27. In his Amended Defence the 1 st Defendant denies at the outset the mismanagement of CLICO and further denies allegations pertaining to him in that regard 14. He denies any misappropriation or misapplication of the assets and income of CLICO, its policyholders and creditors by himself and the 4 th Defendant. He also denies that he mismanaged the mutual funds. He denies that he was the directing mind of CLICO, and says essentially that the financial problems that the Claimants claim CLICO suffered were as a result of the world financial crisis and action or rather, inaction on the part of the Claimants themselves. The 1 st Defendant denies the breaches of duty and trust alleged against him This is thus the thrust of the Applicants Defence. Accordingly, the Applicants Defence is constructed to establish or support the contention that they did not mismanage, did not misappropriate and did not breach duties as alleged. The facts provided therein relate to the establishment of this position. This position is the antithesis of the claim. Accordingly, I have not seen material that can be pointed to as being incriminating in the Defence which is what Counsel for the Applicants has impliedly alluded to in referring to the compelled filing of the Defence and the danger posed should it get into the hands of the police. Indeed, I note that despite alleging the potential breach of the privilege against self-incrimination and relying on this in support of their claim that the relief sought is strictly necessary, curiously enough, Counsel for the Applicant has not pointed to any information in the Defence which he perceives to fall within the protected category. Accordingly, as it stands, there is an absence of any concrete reference to any material that can be deemed to be incriminating. In light of the weight given to open justice principles, it cannot be said that derogation ought to be permitted in circumstances where it is claimed that the relief sought is strictly necessary because of the potential breach of the privilege of protection against self-incrimination when no incriminating material has been highlighted in the first place. If the Court were to grant an order on that basis, it would be doing so on the basis of unsupported claims which, arguably without more, may be said to be conjecture. 29. The onus is on the Applicants to show that the relief sought is strictly necessary and as was said earlier, an application to derogate from open justice must be subjected to intense scrutiny. By failing to refer to any material in the Defence that may be construed as incriminating, the Applicants have fallen short of the high threshold which they are expected to cross in seeking to establish that derogation from open justice is warranted in the circumstances of this case. 14 See paragraph 19a. of the Amended Defence of the 1 st and 4 th Defendants filed on the 18 th September, See Paragraphs 19, 21 and 237 to 240 and Aof the Amended Defence of the 1 st and 4 th Defendants. Page 10 of 19

11 b. Media Publicity 30. The Applicants state that since November, 2012, there has been increasing publicity in the newspapers on the CLICO matter relating to the Commission of Enquiry. They refer to newspaper articles in which the Director of Public Prosecutions ( DPP ) made comments to the effect that CL Financial officials had a case to answer and that there is ample material to justify an investigation into whether more serious offences- conspiracy to defraud and larceny were committed by the controlling minds of CLICO, CLICO Investment Bank Ltd., CLICO Energy and CL Financial. The Applicants submit that if their documents find their way into the public domain, there is the real likelihood of such information creating a great deal of publicity on issues relative to the areas which may be under investigation. They set out the prejudicial effect as follows: If the Defendant s case finds itself in the public domain and the Defendant decides to exercise his right to remain silent such entitlements will be severely undermined by the fact that his case or response would be in the minds of the public who make up the jury. 31. The Applicants fear that allowing the civil case to be debated in the public domain will prejudice the Defendants in receiving a fair civil trial having regard to past and present adverse pre-trial publicity and potentially prejudice the heralded criminal proceedings which, the DPP has indicated to the Commission of Enquiry and the Attorney General, are imminent. 32. While the Applicants acknowledge that the trial judge has ways of trying to neutralize and mitigate pre-trial publicity, they submit that it is prudent to regulate the process now rather than wait until the material is on the front pages of the newspaper. Further, they contend that there is a difference between newspaper reportage and quotes of what Mr. Duprey states in his Defence. I note that the Applicants go no further in highlighting what exactly they perceive that difference to be. According to the Applicants, the balance must be in favour of making orders now to prevent such difficult situations from arising in the future. 33. In response, the Claimants submit that criminal proceedings can hardly be described as imminent. Further, they claim that the Applicants argument, that the Court should permit this significant derogation from open justice now because allowing the public to see their response to this claim will undermine their ability to claim privilege in criminal proceedings that may be instituted, is flawed in that it overlooks the fact that the Applicants ability to invoke privilege against self-incrimination is not limited to Page 11 of 19

12 the criminal proceedings. They may do so in these proceedings. The Claimants further contend that in any event, the general rule regarding pre-trial publicity should apply, that is, the appropriate time to raise the issue is when that criminal trial has actually begun. The Claimants also highlight the fact that while he complains of the potential prejudicial effect of pre-trial publicity, the 1 st Defendant nonetheless himself has given interviews to the press on the very matters which form the subject matter of the civil claim and may well be the bedrock of the criminal proceedings. 34. In considering the parties submissions on this issue of pre-trial publicity, I bear in mind the requirements for derogation from open justice, that it is for the Applicants to establish that such derogation is strictly necessary in the circumstances. Such being the case, I find that in relation to this issue they have not satisfied me that the relief sought can be said to be strictly necessary, that is, that without the specific exception, justice cannot be done 16. [Emphasis mine]. 35. First, with respect to the Applicants argument that allowing the public to see their Defence will undermine their ability to claim privilege in any criminal proceedings, I agree with the Claimants insofar as they claim that it was open to the Applicants to invoke same in these proceedings. They failed to do so and the conclusion I arrived at earlier is still applicable. Having failed to avail themselves of that opportunity and having provided certain information, they cannot now say that it is strictly necessary to restrict access to that very information on the basis that the privilege is likely to be infringed should the information be accessed by the public. They themselves could have chosen to refrain from divulging the information and claim privilege from the outset but opted not to, whatever their reasons. 36. The Applicants could have prevented any potential infringement of their right in the criminal proceedings by invoking the privilege prior to filing at the civil stage but chose not to do so. Thus, insofar as they claim that their right to protect themselves against incrimination will be rendered nugatory, they are the authors of any potential infringement to be found at the criminal stage. In any event, as I have said above, there is nothing to suggest the existence of any actual incriminating material. Further, bearing in mind that the relief sought applies to all documents filed by the 1 st and 4 th Defendants (past and future), in relation to documents not yet filed by them, it is still open to them to seek to invoke this privilege prior to providing any material which they deem to be incriminating. In light of the aforementioned, it can hardly be said that the relief sought is strictly necessary. 16 Scott v. Scott [1913 ]A.C. 417 at Page 12 of 19

13 37. Moreover, in determining whether the relief sought is strictly necessary, I am of the view that the status and nature of any criminal proceedings must be taken into account. In the newspaper articles referred to and annexed by Counsel for the Applicants, it is said that the DPP concluded on the basis of documents forwarded to him that officials of CL Financial had a case to answer. He also said that he is satisfied that a criminal investigation should be conducted into whether breaches of the Insurance Act and Companies Act were committed by the controlling minds of CLICO. The DPP is also said to have stated that there is ample material to justify an investigation into whether more serious offences- such as conspiracy to defraud and larceny- were committed by such persons. 38. That being said, I note that the fact remains that to-date no criminal proceedings have been instituted against the Applicants. The issue of potential criminal proceedings was considered by Sir Anthony Colman ( the Commissioner ) in giving his reasons for refusing to stay the Commission of Enquiry Proceedings 17. In refusing the request, the Commissioner had this to say: Whereas the pendency of judicial proceedings will certainly engage the vigilance of a court investigating the issue of the risk of fair trial prejudice, where parallel proceedings have not yet been commenced but are instead a future prospect, the magnitude of the risk of unfair prejudice has to be tested by reference to the state of affairs known to exist at the time when a decision as to stay or adjournment of the Commission s proceedings falls to be taken. 39. There the Commissioner was considering a request to stay proceedings while here the Court is considering a request to restrict access to documents by the public. However, I am of the view that his statements there would be equally applicable to the instant matter- where criminal proceedings have not been commenced but are a future prospect, the magnitude of the risk of unfair prejudice has to be tested by reference to the state of affairs known to exist at present, which is the time when the decision, in this case, whether or not to restrict access, falls to be taken. 40. The Commissioner noted that all that existed at present was a possibility of some kind of criminal proceedings at some stage in the future. He stated that whether such criminal proceedings will ever eventuate, who will be charged and what charges will be brought is a matter of speculation. He went on to observe that if ever there will be criminal proceedings, it was impossible to predict when, if ever, they will occur or the issues to which they will give rise. He found that at this stage 17 See paragraph [5] of the Reasons for the Commissioner s Ruling made on the 29 th June, 2011, E.A.2 of the affidavit of Elena Araujo filed on the 21 st February, Page 13 of 19

14 the likelihood of a criminal trial must be regarded as somewhat remote, albeit probably greater than negligible. 41. The same may be said of the instant case. I note that this ruling by the Commissioner was given in June Three more years have since lapsed without any criminal proceedings being instituted against the Applicants. Accordingly, the Commissioner s sentiments at paragraph [40] above are particularly apposite. I cannot agree with Counsel for the Applicants that criminal proceedings are imminent. There is nothing before me to suggest that this is the case. In fact, as years continue to pass without initiation of any such proceedings, one leans more greatly towards the remoteness of such proceedings. It is not known if indeed charges will be brought against the Applicants or the nature of any such charges, if indeed they materialize. Further, the Applicants Counsel himself admitted during his oral submissions that matters could take approximately a decade before they come to trial. All that is afoot is speculation and I daresay mere speculation of criminal proceedings, being brought at some point in time in the unspecified future with unknown charges does not provide a solid foundation for concluding that derogation from open justice ought to be permitted. 42. The Applicants have expressed that publicity can result in the infringement of their rights to a fair trial. I understand them to be pointing to the potential for bias in the minds of those tasked with determining the proceedings due to media exposure of aspects of the matter should access to the public be unfettered. In relation to the civil proceedings, the issue of jurors serving in the case is not one with which the Applicants have to contend. The matter is determined by a judge who is well placed, through experience and training, to be objective and filter out extraneous influences which ought not to factor into the decision-making process. Accordingly, I do not see any real potential for prejudice insofar as reference is made to media publicity adversely affecting the civil proceedings and the Applicants right to a fair trial. 43. With respect to this issue of jurors, it is well known that the criminal justice process in Trinidad and Tobago tends to span lengthy periods, as Counsel for the Applicants has pointed out. By the time any criminal proceedings are brought, it may well be that the matter rests with a different generation of people not as intimately connected with the events then before the Court. In any event, as Counsel for the Applicants has recognized, the trial judge has a wide range of powers to seek to cure any residual effects of media coverage on potential jurors. Attorneys themselves may engage in the process of questioning and filtering out jurors during jury selection (the process of jury challenge, peremptory and for cause) should they perceive potential bias: [Sections 23, 23A and 23B of the Jury Act Chap. 6:53 refer]. Counsel for the Applicants submitted that while the trial judge has powers which he may exercise in Page 14 of 19

15 relation to this issue, it is open to them to seek to protect the infringement of rights now. Privy Council authority such as Nankissoon Boodram v. the Attorney General of Trinidad and Tobago [1996] A.C. 842 states that the appropriate time is at the time of the criminal trial. Therein, Mustill L.J. states that- The proper forum for a complaint about publicity is the trial court, where the judge can assess the circumstances which exist when the defendant is about to be given in charge of the jury, and decide whether measures such as warnings and directions to the jury, peremptory challenge and challenge for cause will enable the jury to reach its verdict with an unclouded mind, or whether exceptionally, a temporary or even permanent stay of the prosecution is the only solution. 44. It is noteworthy that their Lordships in Boodram did not altogether foreclose the possibility of an application to the High Court for relief under the Constitution in a case of trial by media where the chance of a fair trial is obviously and totally destroyed, for they noted that in such circumstances, there is no due process of law to put the matter right. They were careful to emphasize, however, that it is only in a very rare case that an application to the High Court ought to be entertained. 45. The Application before me is not a Constitutional Motion, though the Applicants raise issues concerning their constitutional entitlements. Further, unlike the instant matter, Boodram was a case of murder, and even then, the Court was of the view that the time for a complaint about publicity is the trial court. In the circumstances, it cannot to me be said that derogation from open justice is strictly necessary when there are mechanisms via which the issue of publicity and the protection of rights can be dealt with at the time of the actual criminal trial. At that point in time the actual state of affairs would be considered, rather than, as is the case now, speculating blindly. Justice can still be done and the Applicants right to a fair trial protected without restricting access to the public as requested in the Applicants Notice of Application via the judge in the criminal trial giving the appropriate directions and particular processes being engaged in during jury selection. As was stated by Lord Mustill, in extreme circumstances, the judge may even decide that a temporary or permanent stay is the only solution. Accordingly, at the criminal trial phase a wide spectrum of safeguards exist to protect the infringement of the rights which the Applicants seek to protect, if in fact any such proceedings come to fruition. 46. The Applicants complain of the adverse effect that pre-trial publicity would have on their right to a fair trial. The Claimants have countered that whilst on the one hand, the Applicants complain of the adverse effect that dissemination of their documents to the public would have on the exercise of their right to a fair trial, the 1 st Defendant Page 15 of 19

16 has nonetheless given exclusive interviews to the press in which he in effect conveys the same position stated in his defence, that is, that he is not responsible for the financial position of CLICO and is not guilty of mismanagement and so forth. They submit that the Applicants are prepared to restrict the flow of information by some parties while allowing others such as themselves to give access. 47. In support of their claims, the Claimants annexed to the affidavit of Elena Araujo filed on the 21 st February, 2014 copies of two articles in which Mr. Duprey was interviewed by the Guardian newspaper. Counsel for the Applicants did not dispute that such interviews were in fact given by the 1 st Defendant. The articles are dated the 17 th May, 2013 and the 10 th February, The first article, in which Mr. Duprey alleges that it was the recession and not mismanagement that caused CLICO s collapse, states that Mr. Duprey was interviewed a week earlier. The Notice of Application seeking to restrict access to the public to the Defendant s documents was filed since the 13 th December, Thus, it would appear to me that the issue of publicity is only deemed problematic for the Applicants to the extent that they are not able to direct what exactly is published. Surely the Applicants do not think it just that the Court should apply one standard regarding dissemination to the Claimants whilst they are permitted free reign regarding same. 48. By stating in the interviews that there was no mismanagement of CLICO, the 1 st Defendant in essence has revealed the thrust of his Defence, the very information which he is claiming ought not to be made accessible to the public without leave due to the potential for bias and self-incrimination. The only logical conclusion to be drawn is that the Applicant cannot harbour a real belief that the publication of the Defence would result in the ills of which he complains. Proportionality 49. The Applicants submit that their Application seeks to restrict public access to the Court documents in a necessary and proportionate manner with a view to protecting the rights of the Defendants to a fair trial. They maintain that it is not a blanket restriction of access that is sought and highlight that the Court may still grant leave to access upon an application being made. The Claimants on the other hand contend that the relief sought by the Applicants is disproportionate in that it goes beyond what is strictly necessary to ensure that justice is administered fairly. 50. In the Report, the Committee stated that: Page 16 of 19

17 The court must ensure that derogations from open justice are kept to the absolute minimum, and the parties are under a duty to assist the court in this exercise. Consideration will therefore have to be given to what information can properly be put in the public domain, without compromising the proper administration of justice Parties who intend to apply for a derogation from open justice should, as explained in Ambrosiadou v. Coward in the context of private hearings, consider whether any less drastic course of action could be adopted in the particular case. 51. The Claimants submit that by paragraphs 26 to 35 of their submissions, the Applicants accept that only the documents they file are the subject of the application. I note that those paragraphs indeed speak to the prejudicial effects which the Applicants contend are likely to occur if the Defendant s case and/or Defence make their way into the public domain. In any event, I am of the view that the revised relief sought by the Applicants in their written submissions of the 19 th March, 2014 is clear. They seek to bar access to and the disclosure of documents and material filed by the Applicants (the 1 st and 4 th Defendants) without leave of the Court According to the Claimants, while it may be correct to say that the orders sought would not prevent the media from accessing the majority of the documents on the file, they would bar non-parties from seeing all documents filed by the Applicants, even those, the contents of which it cannot be said would expose the Applicants to criminal charges. Further, the order may also bar access to all other documents which may be filed by the Applicants in the future and the Claimants submit that is not necessary at all as the Applicant can simply claim privilege in relation to those documents and not make any potentially incriminating statements. This, they say, would be a less drastic course of action than barring access to all documents filed in the proceedings. 53. While the Applicants are correct insofar as they state that the relief being sought is not blanket in nature and thus not an absolute bar to access, acceding to the relief sought would in essence be creating a default situation prohibiting access. It is only where leave is applied for and granted that access would be permissible. The CPR, as was stated earlier, contain no similar provision to Order 63 rule 6 of the RSC 1975 (TT). Thus the relief sought is a derogation from the open justice principles, which, it is arguable are perhaps even more deeply ensconced in our CPR than the UK CPR given the absence of provisions similar to Order 63 rule 6 from our CPR. Therefore, while the relief sought may not be an absolute bar, it is nonetheless a derogation from open justice and the threshold for satisfying the Court that it is strictly necessary - not only necessary but proportionate - remains high. 18 See paragraphs (a)- (d) of the Introduction of the Applicants written submissions. Page 17 of 19

18 54. I find that the disproportionate nature of the relief sought lies, not in the fact that it is a non-absolute bar but in the fact that it relates, as the Claimants contend, to all documents filed by the Applicants. The underlying foundation on which the need for this application rests is the criminal proceedings. I find that the relief sought is so sweeping in nature as to capture within its net, documents, the disclosure of which, it cannot be said will adversely impact upon any criminal proceedings instituted against the Applicants. By way of an extreme example, something as mundane as an application for an extension of time filed by the applicants will be caught within the scope of the order should it be granted, and access to same would be prohibited without leave. Certainly an extension of time application cannot be said to impact adversely upon the Applicant s right to a fair trial. Thus, in seeking the relief, the Applicants complain of pretrial publicity and self-incrimination in light of future criminal proceedings and rely on these as a basis for the granting of the said relief. To grant the relief, however, would have the effect of including within the default prohibition position documents to which the very basis of the relief claimed cannot be said to relate. This would result in a wholly unsatisfactory position and serves to demonstrate the disproportionate nature of the orders sought. 55. Moreover, as the Claimants rightly state, in relation to future documents filed by the Applicants the Applicants can opt for the less drastic route of claiming the privilege against self-incrimination at the outset. Summary and Decision 56. The authorities make it clear that open justice is not to be departed from lightly. Indeed, the general position favours open justice and derogation from same ought only to be had in wholly exceptional circumstances. In determining whether circumstances are ripe for derogation, the Court must subject the application for same to intense scrutiny. A heavy onus rests with the party seeking derogation to establish that it is strictly necessary in the sense that the relief sought is not only necessary but proportionate. The Applicants have failed to cross this high threshold. As it stands, the relief sought is sweeping in nature, over and above what is necessary to protect their rights. Other methods are available to protect the rights which they say are likely to be infringed. The Applicants themselves have had missed opportunities to protect the rights which they complain are likely to be infringed but have not done so. In any event, the Applicants have not satisfied me that the material which they seek to protect is actually incriminating. Further, the very criminal proceedings, around which their arguments are constructed and in relation to which they claim likely infringement of rights, are speculative at best. In the circumstances, I am not Page 18 of 19

19 convinced that derogation from open justice so as to grant their relief sought is strictly necessary. 57. Accordingly, the order of the Court is as follows: ORDER (i) The 1 st and 4 th Defendants Notice of Application dated the 13 th December, 2012 be and is hereby dismissed. (ii) The 1 st and 4 th Defendants shall pay the Claimants costs in relation to this Application to be summarily assessed pursuant to Part CPR (iii)the Claimants to file and serve a statement of costs for assessment on or before the 2 nd July, (iv) The 1 st and 4 th Defendants to file and serve objections to the statement of costs on or before the 16 th July, Dated this 18 th day of June, 2014 Robin N. Mohammed Judge Page 19 of 19