Open justice victory for Sunday Times in battle to see Irish billionaire's bankruptcy files

Documents on the bankruptcy file of one-time billionaire Irish property developer Bernard McNamara should be made available to the press, a judge has ruled.

The issue of McNamara's bankruptcy application in London was a matter of general public interest,said chief bankruptcy registrar Stephen Baister.

His comments came as he agreed to a request by Times Newspapers Ltd, publisher of the Irish edition of The Sunday Times, for permission to inspect and take copies of the Bankruptcy Court's file on the case.

Firms owned by McNamara, who applied for bankruptcy to the High Court in London under his full name, Michael Bernard McNamara, are reported to owe more than £1bn to Ireland's so-called "bad bank", Nama – the National Asset Management Agency – and other lenders following the collapse of the country's property market.

Times Newspapers applied to inspect the bankruptcy court's file under Rule 7.31A of the Insolvency Rules, and take copies of documents, arguing that they were needed for coverage of the case by financial and legal affairs specialist Mark Tighe.

The registrar said: "In the course of the last 30 years or so there has been a gradual but increasing momentum to recognise that legal proceedings should, so far as possible, be conducted publicly and/or openly and to allow inspection of documents in aid thereof."

He said that a Court of Appeal case brought by Gurdian News & Media last year "attached particular importance to journalistic access 'for the purpose of stimulating informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British subjects to the United States'."

A number of important principles, he added, emerged from the Court of Appeal's judgment:

  • the administration of justice should be open, which includes openness to journalistic scrutiny
  • such openness extended not only to documents read in court but also to documents put before the judge and thus forming part of the decision-making process in proceedings
  • openness should be the default position of a court confronted with an application such as this
  • however, there may be countervailing reasons which may constitute grounds for refusing access
  • the court would thus in each case need to carry out a fact-specific exercise to balance the competing considerations.

"Plainly those principles, like the authority itself, apply to proceedings of all kinds, including insolvency proceedings," Registrar Baister said.

"I do not think this is a simply a fishing expedition," he added.

"I think there is genuine and legitimate interest on the part of the press in this significant bankruptcy and its surrounding circumstances."

McNamara's contention that only creditors or the official receiver had a legitimate interest in the file was "manifestly wrong".

"I have sympathy with the debtor's desire for respite, but the bankruptcy process provides that by protecting the bankrupt from action against him by his creditors and by providing him with a release from his bankruptcy debts and discharge," he said.

"The regime is not, as a general rule, concerned to protect the bankrupt in any wider way.

"It is plain from the respondent's witness statement that the journalistic interest and intent are far from prurient. I can guard against the misuse of information for any prurient purposes by imposing restrictions in any order I make …

"It is entirely appropriate for the press to seek to delve into the mind of the registrar (to the extent that it can) and to comment on what the court has done or appears to have done.

"The bankruptcy tourism question remains very much alive and is a legitimate matter of public interest in this country, in Ireland, in Germany and in Europe generally. The number of cases this court hears (to say nothing of those heard in other courts) attests to that.

"Finally, as we have seen, the distinction between chambers and open court has largely disappeared.

"The reasons put forward by the respondent do not, in my view, warrant a departure from the presumption in favour of access to the court file posited by the Court of Appeal."

Times Newspapers was entitled to see and copy documents from the court file, he ruled.

The registrar accepted an undertaking from the publisher that it would not disclose specified private information relating to McNamara and members of his family which might be on the file.

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