Adare Finance DAC v Yellowstone Capital Management SA & Anor [2021] EWHC 2406 (Comm) (26 July 2021)

Adare Finance DAC v Yellowstone Capital Management SA & Anor [2021] EWHC 2406 (Comm) (26 July 2021)

The general rule is that Part 71 examinations should be conducted in public in accordance with the principle of open justice. The burden is on the applicant to justify any derogation. In this case, the evidence provided was insufficiently particularised to justify a private hearing. Any specific confidentiality...

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Citation
[2021] EWHC 2406 (Comm)
Parties
Claimant: Adare Finance DAC; Defendant: Yellowstone Capital Management SA; Defendant: Michel Ohayon
Jurisdiction
England and Wales
Judgment Date
26 July 2021
Procedural Posture
Examination Under Civil Procedure Rules Part 71 (judgment Enforcement) / Application for Examination to Be Held in Private
Outcome
Application for examination to be held in private refused; examination to be conducted in public.
Legal Topics
Open Justice, Privacy in Court Proceedings, Enforcement of Judgments, Balancing Article 8 and Article 10 ECHR
Civil Procedure Judgment Enforcement Human Rights Open Justice Privacy in Court Proceedings Enforcement of Judgments Balancing Article 8 and Article 10 ECHR

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Parties

Adare Finance DAC

Claimant

Yellowstone Capital Management SA

Defendant

Michel Ohayon

Defendant

Procedural Posture

Examination Under Civil Procedure Rules Part 71 (judgment Enforcement) / Application for Examination to Be Held in Private

Legal Issues

  1. 1 Whether a Part 71 examination before a master is a 'hearing' under CPR 39.1(1)
  2. 2 Whether the examination should be conducted in private or in public
  3. 3 Balancing open justice with privacy/confidentiality concerns under Article 8 and Article 10 ECHR

Ratio Decidendi

The general rule is that Part 71 examinations should be conducted in public in accordance with the principle of open justice. The burden is on the applicant to justify any derogation. In this case, the evidence provided was insufficiently particularised to justify a private hearing. Any specific confidentiality concerns can be addressed on a case-by-case basis during the examination. Even if CPR 39.2 applies, the necessity threshold for privacy is not met on the evidence presented.

Court Disposition

Application for examination to be held in private refused; examination to be conducted in public.

Orders

  • Examination to proceed in public, subject to specific applications for privacy if justified during the process.
  • Documents and information obtained in the Part 71 process to be used only for enforcement purposes and not otherwise shared with third parties.