Orders restricting public disclosure of proceedings under rule 49 of the ET Rules 2024, balancing open justice against privacy. Fallows v News Group Newspapers Ltd; Clifford v Millicom Services UK Ltd.
Privacy and breach of confidence; Article 8 ECHR. The House of Lords held that publication of the details of the claimant's treatment for drug addiction at Narcotics Anonymous, together with the photographs, was a breach of confidence and an infringement of her right to privacy under Article 8. She did not complain of publication of the fact that she was a drug addict: she accepted that the press served a legitimate public interest in putting the record straight. The photographs taken covertly outside the therapy clinic added materially to the intrusion. Lord Nicholls said that the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence. The essence of the tort, he said, is better encapsulated now as misuse of private information. [Summary checked against a practitioner text, not the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Anonymity in care proceedings involving children. Hedley J declined to vary an anonymisation order, confirming it indefinitely. The welfare of the child governs; the judgments and the conduct of the proceedings may be discussed publicly, but not in terms that identify the child, the family, the local authority or the social worker.
Interim privacy injunction; anonymity; jigsaw identification. An interim injunction restraining publication of information about the claimant's sexual relationship, with anonymity, was continued until trial by consent and with the court's approval [5], [7]. The dispute was over a Sun article published after the first order, which referred to an individual with a particular occupation [8]. The purpose of the order was to prevent publication of information which identified the claimant or tended to identify him [37]. Jigsaw identification involves separate publication of items which do not identify the claimant alone but risk doing so together: the information need not be private [33]. The claimant was likely to establish at trial that such an order was necessary to protect his article 8 rights [38]. There was no sufficient public interest in publishing the details [39]. No finding of contempt was made [35]. The defendant could not continue to publish the article in its current form [42].
Open justice and private hearings in the Companies Court. The Court of Appeal upheld the refusal of an application for court hearings to be held in private. The court reaffirmed that the open justice principle is paramount and that reputational damage, without more, is not a sufficient basis for derogating from it. The burden lies on the applicant to establish by clear and cogent evidence that a departure from open justice is strictly necessary. The court also addressed the intersection of Articles 6, 8 and 10 ECHR.
“Lord Steyn’s reference to “an intense focus” does not mean that every time a litigant waves an Article 8 flag in support of an application for a private hearing there will have to be a protracted and expensive hearing to determine the issue. Often, indeed usually, experience suggests that the application can be determined very quickly. It also shows that, in most cases … the open justice principle will prevail.”Maurice Kay LJ, at [27]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Anonymity orders in the employment tribunal. The EAT allowed the BBC's appeal against a permanent anonymity order. Simler J held that the ET judge erred in relying on the risk of public misunderstanding of unproven sexual allegations as a basis for permanent anonymity after judgment; this was not a valid reason for derogating from open justice. The default position is that tribunal judgments should be published in full, including the names of parties. Once the only factor relied on was disregarded as invalid, there was no rational basis for anonymity.
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Privacy injunctions; interim relief; s.12 HRA 1998. A two-judge Court of Appeal allowed the claimant's appeal and granted an interim injunction restraining a newspaper from publishing an account of his extramarital sexual activities [2]-[3], [63]. Two shortcomings in the judgment below let the court carry out its own balancing exercise [44], [48]: the judge had not explained how he took the children's article 8 rights into account [45], and press articles showing the couple's commitment did not present a false image requiring correction [47]. Publication would not set the record straight [52]. Kiss and tell stories about a public figure that do no more than satisfy readers' curiosity do not serve the public interest [53]. The claimant's article 8 right prevailed over the newspaper's article 10 right [60], and the children's position went into the balance [61]. The claimant was likely to establish at trial that publication should not be allowed: s.12(3) was satisfied [62].
“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”Lord Steyn in In re S, cited by Jackson LJ, at [30]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Anonymity of mental health patients in judicial review proceedings. The Supreme Court held that there is no automatic presumption of anonymity for psychiatric patients in High Court proceedings. Whether anonymity is justified depends on whether it is necessary in the interests of the patient, balancing open justice against the risk of harm to the therapeutic relationship, the chilling effect on patients' willingness to seek review, and the public interest in knowing how such cases are decided. The case addresses the intersection of open justice and the vulnerable status of mental health detainees.
Reporting of proceedings in open court; non-party arrested but not charged; Art 8 v Art 10 ECHR. The appellant, arrested and released without charge, was named at a child sex grooming trial and sought an interim injunction against press identification [3]-[4], [11]. The Supreme Court dismissed his appeal by a majority [36]. Lord Sumption held that the judge made no error of law: there is no reasonable expectation of privacy in matters discussed at a public trial; the impact on family life was indirect and incidental; it would be incoherent to refuse an injunction against damage to reputation directly while granting one for its collateral impact on family life [34]. Lord Rodger's observation in In re Guardian News and Media that the public distinguish suspicion from guilt is not a legal presumption [33]. A pre-emptive injunction is not ruled out, but such cases are likely to be rare for public court proceedings [34]. Lord Kerr and Lord Wilson dissented [59].
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Anonymity; rule 50; tribunal's own initiative. The ET's reasons on a time-limit issue recorded the claimant's transgender status and mental health history from his father's evidence; no rule 50 application was made at the hearing [9]-[10]. Cavanagh J held the judge did not err in referring to those matters: they were directly relevant to a key issue [30], and redaction would be proportionate only in a wholly exceptional case when anonymisation is available [35]. But rule 50(1) allows an order on the tribunal's own initiative: there can be rare cases in which a tribunal must consider anonymisation of its own volition [36]. This was one: the failure to consider it was plainly wrong [37]. Anonymisation was the only possible outcome, so the EAT ordered it without remitting [38], extending it to the respondent [42] and to the EAT judgment [52]. There is no rule that every judgment referring to transgender status or sensitive mental health must be anonymised [43].
Legal advice privilege; iniquity exception; redundancy selection advice. The CA (Sir Terence Etherton MR, Lewison and Bean LJJ) allowed the employer's appeal and restored the ET's ruling: an in-house email advising on including the claimant in a redundancy exercise was standard advice regularly given by employment lawyers, not advice to act in an underhand or iniquitous way, so it remained privileged and could not be relied on; an overheard pub conversation could not be used as an aid to its interpretation. Subsidiary point: anonymity in the Court of Appeal is a matter for that court — the EAT's anonymity order could not bind it, and the employer's application was refused.
“Although none of those Convention rights has automatic priority over the other or others … due to the importance of the principle of open justice it will usually only be in an exceptional case, established on clear and cogent grounds, that derogation from the principle of open justice … will be justified; and, in such a case, the derogation must be no more than strictly necessary to achieve its purpose. There is no general exception to open justice where privacy or confidentiality are in issue.”at [39]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Open justice and non-party access to court documents. The Supreme Court held that the court rules are a minimum, not an exhaustive code, and that courts at all levels have an inherent jurisdiction to allow non-party access to documents in accordance with the principle of open justice. The two principal purposes are: (1) enabling public scrutiny of judicial decision-making, and (2) enabling the public to understand how the justice system works and why decisions are taken. The default position is that access should be permitted where documents have been placed before the court and referred to during the hearing.
“The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question.”Lady Hale, at [41]
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Procedure; register of judgments; rule 50 anonymity. The EAT (HHJ Eady QC) held the ET has no power to exclude or remove a judgment from the public register — rule 67 requires every judgment and written reasons to be entered, subject only to rules 50 and 94 — and the ET had properly exercised its rule 50 discretion in refusing anonymisation, the applicant having failed to displace the open justice principle.
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Open justice; publication of judgments; rule 50. The employment tribunal heard a disability discrimination claim in private, anonymised the parties and directed that its judgment not be entered on the Register; in the EAT Slade J set aside that last order [1], [6]. The Court of Appeal refused permission to appeal [27]. Bean LJ held that, national security cases apart, the rules contain no explicit power to prohibit publication of a judgment altogether; s.12 ETA 1996 confers none in disability cases [20]. Reading rule 50 as allowing a judgment to be kept secret to protect a claimant's Article 8 rights would go against the authorities on open justice [23]. He did not say such an order could never be made, but found it hard to imagine when it would be right [26]. Permission was also refused on redacting the disabilities: that would fundamentally undermine understanding of the judgment [29]. Redaction was confined to what anonymity reasonably required [31].
Anonymity and privacy orders (now Rule 49, formerly Rule 50); the EAT allowed an appeal against refusal of an anonymity order where the judge had failed to conduct the balancing exercise, had not directed himself to the rule or the open justice principle, and had failed properly to take account of new GP evidence that the lack of anonymity had worsened the claimant's mental health to the point of a risk of self-harm. Substantive medical evidence carries real weight in the balance.
“When considering an application for an anonymisation order pursuant to r.50, there is a clear structure to be adopted. It is necessary to identify relevant Convention rights and then carry out the requisite balancing act between those rights.”HHJ Tucker, at [39]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Privacy and anonymity orders (now Rule 49, formerly Rule 50); the Court of Appeal upheld the EAT's order remitting a refused privacy application: a party's subjective fear of harm supported by a reasonable evidential foundation can engage the interests of justice, and objective proof of a specific threat is not required. At para 48, if the judge held the applicant's fears to be more than mere feelings of delicacy but to have some reasonable foundation, she should have factored them into whether the order was necessary in the interests of justice. Open justice remains the default and the burden on the applicant is real.
“The first and main difficulty with the EJ’s approach is that she gave no separate and distinct consideration to the relevant language of Rule 50 or to the common law open justice principle. She wove these together with issues arising under the Convention and treated her Convention analysis as decisive of the application under the “interests of justice” limb of Rule 50.”Warby LJ, at [26]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Anonymity orders under Rule 50 (now Rule 49) ET Rules. The EAT held that the ET erred in failing to consider a second anonymity application on its merits and instead treating it as a reconsideration of an earlier refused application. Bruce Carr KC granted anonymity where claims were compromised, there was no press interest, and the claimant had produced a disability impact statement. The EAT emphasised that changed circumstances (including compromise of claims and production of medical evidence) may justify revisiting an earlier refusal of anonymity, and that the interference with open justice is limited where no full merits hearing has taken place.
“The burden of establishing any derogation from the principle of open justice lies on the person seeking it and in order to do so, it is necessary to provide ‘clear and cogent evidence’ that harm will be done to the privacy rights of the applicant if the derogation is not granted.”Bruce Carr KC, at [23]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Privacy orders; anonymity; disability; correct legal test. The ET had set too high a bar in refusing anonymity to a claimant with autism spectrum disorder (Asperger's syndrome) who feared his disability would become public and permanently damage his employability. The correct test (derived from Millicom Services UK Ltd v Clifford [2023] ICR 663, Warby LJ) is whether the applicant's subjective concerns, even if not objectively well-founded, were such as would prejudice the administration of justice if the order were not made. The ET erred by requiring objective proof of future professional harm; medical evidence cannot address stigma-based employability fears, and the fact that the claimant had since obtained employment was irrelevant without knowing whether the new employer was aware of the disability. EAT substituted its own decision: only one possible outcome on the evidence, anonymity for both parties granted. Anonymisation of the respondent was necessary to prevent identification of the claimant by association.
“The identity of the parties is not critical to public understanding of the case — the lay members, in particular, consider that the interference with the principle of open justice is relatively minor, and far outweighs the genuine and, on our findings, reasonably held fears that the claimant holds.”HHJ Barklem, at [20]
Procedure; anonymity; Tribunal was wrong to refuse Rule 50 order without allowing claimant time to obtain medical evidence.
“In many cases it will be a proper exercise of judicial discretion to conclude that the medical material available does not demonstrate the clear and cogent evidence needed to establish a departure from the open justice principle. Sometimes a judge may even properly conclude that obtaining medical evidence would be futile. There are many cases where anonymity applications are made with no supporting evidence and they are properly refused.”Judge Barry Clarke, at [37]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Anonymity and open justice in employment tribunals. Cavanagh J summarised the authorities on Rule 50 (now Rule 49) applications, confirming the approach to derogations from open justice including anonymisation. The same approach applies in ET claims as in any other type of claim; the burden rests with the party seeking derogation; and the ET must undertake an intense balancing exercise between Articles 8 and 10.
“The question whether there should be a derogation from the principle of open justice in a particular case is fact-specific.”Cavanagh J, at [95]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.