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 information about the claimant's drug addiction and therapy was a breach of confidence and an infringement of her right to privacy under Article 8. The photographs taken covertly outside the therapy clinic added materially to the intrusion. The case established that there are now two distinct causes of action: breach of confidence and misuse of private information, the latter being the vehicle for giving effect to Article 8 rights. [Summary not yet checked against 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.
Anonymity in civil proceedings alleging sexual assault. The House of Lords held that defendants in civil proceedings involving allegations of sexual misconduct were entitled to anonymity where there was a real risk of prejudice to related criminal proceedings. The open justice principle must be balanced against the risk of injustice in the criminal process. The case recognises that anonymity may be necessary to protect Article 6 rights in connected criminal proceedings. [Summary not yet checked against 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.
Interim privacy injunction; anonymity; blackmail. Tugendhat J granted an interim injunction restraining publication of the claimant's identity in proceedings against the media where the claimant alleged blackmail. The court applied the intense focus test from In re S, balancing Article 8 privacy rights against Article 10 freedom of expression. The case illustrates the circumstances in which anonymity may be granted to protect a claimant from further harm, even where the underlying allegations are contested. [Summary not yet checked against the judgment.]
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.
Restricted reporting orders in the employment tribunal. Simler J (as she then was) upheld a restricted reporting order under section 12 of the Employment Tribunals Act 1996 where the claimant had been subject to serious harassment. The court conducted the full balancing exercise between open justice and the claimant's right to protection from further harm. The case is a leading authority on the circumstances in which RROs are justified in ET proceedings. [Summary not yet checked against the judgment.]
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. [Summary not yet checked against 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.
Privacy injunctions and the 'blue pill' principle. The Court of Appeal refused to discharge a privacy injunction even though the information had been published extensively online and in foreign jurisdictions. The court held that the fact of widespread internet publication does not automatically remove the protectable quality of private information. The impact of publication in this jurisdiction remained a relevant consideration, and the balance between Article 8 and Article 10 fell in favour of maintaining the injunction. [Summary not yet checked against the judgment.]
“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.
Anonymity of suspects prior to charge; Art 8 ECHR vs Art 10. The Supreme Court held that the identification of a person under investigation prior to charge is not automatically a breach of Article 8. The court must undertake an intense focus on the comparative importance of the specific rights being claimed in the individual case, taking into account the justifications for interfering with or restricting each right, and applying the proportionality test to each. The fact that publication may cause serious damage to reputation is not, without more, determinative. [Summary not yet checked against 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; rule 50; tribunal's own initiative. Where the ET's reasons disclosed the appellant's transgender status and sensitive mental-health matters, this was a rare case in which the EJ was plainly wrong not to consider of his own volition whether a non-disclosure/anonymity order should be made, no rule 50 application having been made at the hearing; appeal allowed, with the parties anonymised in both the ET and EAT judgments. Distinct from the existing KB entry X v Y [2019] IRLR 588 (UKEAT/0265/18), which concerns anonymity on a re-hearing. [Summary not yet checked against the judgment.]
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. [Summary not yet checked against the judgment.]
“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]
Cites
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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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.
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. [Summary not yet checked against 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 the employment tribunal; re-hearing. The EAT held that the principles governing anonymity orders apply with equal force to re-hearings as to original hearings. A fresh balancing exercise is required, taking into account any changed circumstances and the continued relevance of the factors that justified anonymity initially. The case confirms that the passage of time and the procedural history do not diminish the need for proper Article 8/Article 10 analysis. [Summary not yet checked against the judgment.]
Anonymity in family proceedings; risk of serious harm. The High Court held that anonymity was necessary where disclosure of the parties' identities would put them at risk of serious physical harm. The open justice principle yielded to the paramount need to protect the welfare and safety of vulnerable individuals. The case illustrates the outer limits of open justice where Article 2 and Article 3 rights are engaged. [Summary not yet checked against the judgment.]
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. [Summary not yet checked against the judgment.]
“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.
Open justice; publication of judgments; rule 50. The Court of Appeal ([2019] EWCA Civ 1417, Bean LJ) held that rule 50 does not permit an employment tribunal to direct that its judgment never be published or entered on the register, even where a disabled claimant contends publicity would cause serious embarrassment: anonymisation and targeted redaction are the proper protections, and redacting the disabilities founding the claim would fundamentally undermine understanding of the judgment. [Summary not yet checked against the judgment.]
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]
Cites
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.