Open Justice

NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES [27 August 2019]

OPEN JUSTICE

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity” (Jeremy Bentham).

1. The Appeal Division (Judge of Appeal Storey and Deemster Doyle) in Reid v McNicholas (judgment [2] 24 July 2018) referred to the important principles of open justice and stressed the need for courts to be vigilant when the parties consent to derogations for open justice. The Appeal Division referred to Rules 9.2(1), (2) and (3) and stated:

“25. Such procedural rules must, of course, be read in light of the leading judgments in this important area of the law.

26. The local jurisprudence is set out in numerous judgments including this court's judgment (differently constituted) in Taylor v Attorney General (No 2) 2012 MLR 199, Deemster Doyle's judgments in Harding and Re Delphi Trust 2014 MLR 51, Deemster Corlett's judgment in Gubay v Willers 2009/11 (J 1734: 3 December 2015) and this court's judgment in Attorney General v Kelly 2017/12 (24 November 2017).

27. The principle of open justice is well established in Manx law. An Act of Tynwald in 1731 referred to the opportunity to be present "in open Court". Deemster Farrant in Myers 1921-51 MLR 331 at page 337 stressed, in the context of apparent bias, that "justice must not only be done but must be seen to be done" (lines 14 – 15). In the 21st century Deemster Kerruish in Byrne 2005-06 MLR N14 (30 March 2006) at paragraph [14] put it succinctly when he stated:

"The general rule is that all hearings ought to be in public."

28. In Taylor this court at paragraph [97] stated:

"… Anonymity is inconsistent with the overriding requirement for open justice and transparency. We agree with Deemster Doyle that judgments styled like alphabet soup, using the provocative words referred to in Re Guardian News and Media Ltd [2010] UKSC 1, … have no place in the judicial kitchen."

29. In Delphi Trust Deemster Doyle set out the position in respect of open justice generally at paragraphs [51] to [87] stating at paragraphs [60] and [62] on pages 80 – 81:

"[60] In another judgment delivered in Taylor v A-G on 17 June 2011 in respect of doleance claims and wasted costs orders I stated at para [32](10): 1

'Wasted costs hearings should, in the normal course of events, take place in open court and the orders and judgments, unless the most exceptional circumstances arise, should refer to the names of the parties and anonymity should not prevail. The overriding requirement in this jurisdiction should be for open justice and transparency. We do not want judgments styled like alphabet soup (to use the provocative words referred to in [Re Guardian News and Media Ltd [2010] UKSC 1 … (at [1]) unless that is, in the interests of justice, really necessary.'

[62] There may, of course, be occasions when judgments styled like alphabet soup will be necessary. Anonymity and privacy orders may on occasions have a place in the judicial kitchen in cupboards marked: Family (children), Mental Health (patients) and indeed, as will be apparent from this judgment, one marked Trusts (non-contentious directions). These cupboards will on rare occasions have to be opened, and judgments styled like alphabet soup will have to be produced. For recent examples at appeal level see three judgments delivered by the Appeal Division on 15 October 2013 namely K v G 2013 MLR 432 Re C and B (15 October 2013) and A and B (removal from jurisdiction: shared care) 2013 MLR 455 which appear on www.judgments.im. For an example at first instance see Deemster Corlett's judgment in Re Child 1 and Child 2 (adoption: parental consent: assisted reproduction) 2012 MLR 581 which is also to be found on www.judgments.im The requirement for open justice and transparency has to be balanced against legitimate privacy and confidentiality concerns."

30. Deemster Corlett in Gubay v Willers (3 December 2015) did not accede to an application that a hearing be held in private. The application appears to have been made in an attempt to keep private evidence in respect of Mr Gubay's life expectancy. Deemster Corlett at paragraph 5 stated:

"It is important that the principle of hearings not being kept behind closed doors be respected, and I do not believe that Rule 9.2 of our Rules of Court specifically deals with this issue at all …"

31. In Kelly this court at paragraph 12 stated:

"The principle of open justice is an important principle in this jurisdiction … The publication of judgments in respect of appeals in open court is an important aspect of that principle …"

32. Across the water on the adjacent isle Lady Hale DPSC put it well in R(C) v Secretary of State for Justice at paragraph 1 when she stated:

"The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this 2

principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. The rationale for the second rule is not quite the same as the rationale for the first, as we shall see. This case is about the second rule. There is a long-standing practice that certain classes of people, principally children and mental patients, should not be named in proceedings about their care, treatment and property. The first issue before us is whether there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act 1983 ("the 1983 Act"). The second issue is whether there should be an anonymity order on the facts of this particular case."

33. Deripaska v Cherney [2012] EWCA Civ 1235 was a case involving threats to witnesses by Russian organised crime groups. The appeal was in respect of witness protection orders to protect the witnesses' right of life guaranteed by Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 [the 'Convention']. The judge, Andrew Smith J, had directed himself (and such direction was not criticised by the English Court of Appeal – see paragraph 8 of the judgment) that there would have to be demonstrated a real and immediate risk to the witnesses' lives that is to say that they faced "a real risk that [was] objectively verified and an immediate risk that [was] present and continuing" and that the risk would be materially increased. That criterion was one "that is not and should not be readily satisfied: in other words, the threshold is high".

34. At paragraph 14 Lewison LJ (with whom Munby and Maurice Kay LJJ agreed) referred to the judge taking as his starting point the general principle that justice must be done in public:

"Any application to depart from the principle should be allowed only if and to the extent that justice strictly requires. This is not a question of the court's discretion: it is a question whether the necessity for a derogation from the general principle has been established. In considering whether the necessity for a derogation has been established it is appropriate to take into account the extent of the interference with the general rule that is involved. If the restriction relates only to the identity of a witness or a party this is less objectionable than a restriction which involves proceedings being conducted in whole or in part behind closed doors. The judge also directed himself that a witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or

she will be prejudiced by publicity, since the courts depend on their co- operation. Again neither party criticises the judge's self-direction. Since neither side criticises the judge's formulation of the legal principles, there is no need for this court to engage in jurisprudential analysis."

35. Sometimes anonymity is required because of the risk of death or really serious ill-treatment in violation of the rights protected by Articles 2 and 3 of the Convention.

36. In A v British Broadcasting Corp (Secretary of State for the Home Department intervening) [2014] UKSC 25; [2015] AC 588 Lord Reed JSC delivered the judgment of the court in respect of an appeal which raised important issues concerning the principle of open justice: in particular, issues concerning the legal basis of the principle, the circumstances in which it could be departed from and the procedure which should be followed (paragraph 1 of the judgment).

37. In respect of the first respondent there was a risk of death or ill-treatment and effective protection from the police was unlikely if he was returned to his country of origin (paragraph 6). There had been threats of violence in the past, an attack in a public park and police concerns that a house might be fire- bombed. The incidents followed publicity about the case in which his name and the town in which he lived were mentioned (paragraph 7). It can be seen that the evidence in respect of the threat in that case was far more substantial than the evidence in respect of the apparent threat in the case presently before this court.

38. The judgment of Lord Reed (with whom Lady Hale DPSC and Lords Wilson, Hughes and Hodge JJSC agreed) is worth quoting at some length as it contains a summary of the relevant principles the court should have regard to when being requested to anonymise a judgment to remove references to the names of the parties. Lord Reed stated:

"23. It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny. The principle is an aspect of the rule of law in a democracy. As Toulson LJ explained in R (Guardian News & Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618, para 1, society depends on the courts to act as guardians of the rule of law. Sed quis custodiet ipsos custodes? Who is to guard the guardians? In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny…

26. The connection between the principle of open justice and the reporting of court proceedings is not however merely functional. Since the rationale 4

of the principle is that justice should be open to public scrutiny, and the media are the conduit through which most members of the public receive information about court proceedings, it follows that the principle of open justice is inextricably linked to the freedom of the media to report on court proceedings…

38. As I have explained, it has long been recognised that the courts have the power to permit the identity of a party or a witness to be withheld from public disclosure where that is necessary in the interests of justice. The Lord President was plainly right to approach the matter on the basis that the interests of justice are not confined to the court's reaching a just decision on the issue in dispute between the parties. It is necessary in the first place to recognise that the administration of justice is a continuing process: see, for example, Attorney-General v Butterworth [1963] 1 QB 696, 725 per Donovan LJ. The court can therefore take steps in current proceedings in order to ensure that the interests of justice will not be defeated in the future. For example, the High Court of Justiciary has permitted undercover police officers to give evidence while screened from the sight of the general public, and without public disclosure of their identities, in order to avoid jeopardising their effectiveness in future investigations.

39. Other cases may raise different considerations. In some cases, for example, anonymity may be necessary in view of risks to the safety of a party or a witness. The point can be illustrated by the case of A v Scottish Minsters 2008 SLT 412, where a prisoner serving a sentence for sexual offences was permitted to bring proceedings, challenging the notification requirements applicable to sexual offenders, without disclosing his identity publicly, because of the danger to his safety if the nature of his offending became known to his fellow prisoners. The same approach was followed when the case subsequently came before the Inner House. In other cases the health of a vulnerable person may be at risk. An example is the case of HM Advocate v M [2007] HCJ 2, 2007 SLT 462, where the court made a section 11 order to prevent the publication of the identity of a woman who was due to be the principal witness at the trial of a person charged with having recklessly infected her with HIV. There was evidence before the court that the woman's mental health would be endangered if her identity became publicly known. There was also a risk that the woman would otherwise be unable to give evidence, in which event the prosecution could not proceed. An example of a case where harm of a different kind was considered to justify a departure from the ordinary practice is Devine v Secretary of State for Scotland (unreported) 22 January 1993, an action of damages arising from the deployment of the SAS to end a prison siege, where Lord Coulsfield permitted the soldiers to give evidence while screened from the view of the general public, and without disclosing their

names publicly. He did so on the basis that their evidence was essential to the proper presentation of the defence, and the Army's ability to deploy them in future operations would otherwise be compromised. In such a case, their appearance and identities were of such peripheral, if any, relevance to the judicial process that it would have been disproportionate to require their disclosure. These are only a few examples…

41. The examples given by the Lord President of a party or witness whose safety may be endangered or who may suffer commercial ruin if his identity becomes known, or that of the female pursuer where the decision turns on intimate medical evidence, are all capable of raising issues which could warrant a qualification of the principle of open justice, applying the approach which I have explained. In relation to the last example, which was the subject of particular criticism by counsel for the BBC, I agree with the Lord President that it would be in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information about her where there was no public interest in its being publicised. Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of that case. As Lord Toulson JSC observed in Kennedy v Information Commissioner (Secretary of State for Justice intervening) [2015] AC 455, 525, para 113, the court has to carry out a balancing exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others…

45. Article 6 is not the only provision of the Convention which is relevant to the principle of open justice. Articles 2 and 3 may for example apply where parties or witnesses are in physical danger. The rights guaranteed by those articles are, in this context, unqualified. The Convention therefore requires that proceedings must be organised in such a way that the interests protected by those articles are not unjustifiably imperilled: Doorson, para 70. In our domestic law, the court's power to prevent the identification of a witness is accordingly part of the structure of laws which enables the United Kingdom to comply with its obligations under those articles: In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 27, per Lord Rodger of Earlsferry JSC.

46. Article 8 may also be relevant. It protects the private lives of the parties, to which article 6.1 also refers, and in addition requires respect for the private lives of other persons who may be affected by legal proceedings, such as witnesses. It is however a qualified right:

"8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

The court therefore allows a margin of appreciation to national authorities in striking a fair balance between the interest in publicity of court proceedings, on the one hand, and the interests protected by article 8, on the other hand: Z v Finland (1998) 25 EHRR 371, para 99.

47. Article 10 is also relevant to the principle of open justice, since the right to receive and impart information, which is guaranteed by article 10.1, may be engaged where measures are taken in relation to court proceedings to prevent information from becoming publicly available. The right guaranteed by article 10.1 is however qualified by article 10.2:

"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."…

75. In these circumstances, it was plainly necessary in the interests of justice, and in order to protect the safety of a party to the proceedings, to depart from the general principle of open justice to the extent involved in the making of the orders made by Lord Boyd. It follows that, subject to any issue arising under the Convention, the order allowing A to withhold his identity in the proceedings was in accordance with the common law, and the section 11 order was made in accordance with the power conferred by that provision.

76. It also follows that the section 11 order was not incompatible with the Convention rights of the BBC. The interference with its freedom of expression was necessary to maintain the authority and impartiality of the judiciary, since its publication of A's identity in connection with the proposed deportation would have completely undermined the judicial review proceedings. In these circumstances, where the publication of A's identity in connection with the proceedings might well have rendered those proceedings pointless, the interference with the BBC's article 10 rights was unavoidable if the authority and impartiality of the judiciary, within the meaning of article 10.2, were to be maintained. Put shortly, the order had to be made if the court was to do its job, notwithstanding the resulting restriction upon the BBC's capacity to do its job. The interference with the 7

BBC's article 10 rights was also necessary for the protection of the rights of others, namely the right of A not to be subjected to violent attack. As Lord Rodger JSC observed in In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 27, the media do not have the right to publish information at the known potential cost of an individual being killed or maimed…

79. A is now residing in the country where, as the tribunal concluded, he is at risk of serious violence if his identity becomes known in connection with these proceedings. His application for judicial review of the tribunal's decision to authorise his deportation has not yet been heard. In these circumstances, it is appropriate both in the interests of justice, and in order to protect A's safety, that his identity should continue to be withheld in connection with these proceedings, and that the order should therefore remain in place."

39. In R(C) v Secretary of State for Justice the Supreme Court dealt with whether there should be a presumption of anonymity in civil proceedings in the High Court relating to a patient detained in a psychiatric hospital or otherwise subject to the compulsory powers under the Mental Health Act 1983. There was a suggestion in that case (see paragraph 9 of judgment) that observing the principle of open justice would risk the safety of the patient if his whereabouts were made public and there was reference to the impact of intense media interest on the patient's care, treatment and progress at the hospital (which would require enhanced procedural, physical and relational security).

40. Lady Hale DPSC at paragraph 36 stated:

"The question in all these cases is that set out in CPR 39.2(4): is anonymity necessary in the interests of the patient? It would be wrong to have a presumption that an order should be made in every case. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them. On the other hand, the purpose of detention in hospital for treatment is to make the patient better, so that he is no longer a risk either to himself or to others. That whole therapeutic enterprise may be put in jeopardy if confidential information is disclosed in a way which enables the public to identify the patient. It may also be put in jeopardy unless patients have a reasonable expectation in advance that their identities will not be disclosed without their consent. In some cases, that disclosure may put the patient himself, and perhaps also the hospital, those treating him and the other patients there, at risk. The public's right to know has to be balanced

against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure."

41. Lady Hale considered the factors relevant in that case and at paragraph 40 concluded:

"Putting all these factors into the balance, I conclude that an anonymity order is necessary in the interests of this particular patient. His regime before he left hospital, involving escorted leave in the community, demonstrated the need for anonymity and the case is even stronger now (as foreseen in R (on the application of M) v Parole Board). Without it there is a very real risk that the progress he has made during his long years of treatment in hospital will be put in jeopardy and his re-integration in the community, which was an important purpose of his transfer to hospital, will not succeed. I would therefore allow this appeal and maintain the anonymity order in place."

42. There is no evidence before this court that the Appellant is a patient within the meaning of the Mental Health Act 1983 (of England and Wales) or the Mental Health Act 1998 (of Tynwald) or that a Receiver has been appointed over his affairs, quite the contrary (see Professor Gournay's letter to Mr Coren dated 5 July 2016).

43. In his supplemental submissions dated 19 June 2018 Mr Coren referred to a number of additional authorities including JX MX (by her mother and litigation friend AX MX) v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, [2015] 1 WLR 3647. Moore-Bick LJ (V-P) (with whom Black and Lewison LJJ agreed) at paragraph [17] stressed that the identities of the parties was an integral part of civil proceedings and "the principle of open justice requires that they be available to anyone who may wish to attend the proceedings or who wishes to provide or receive a report of them". The learned judge stated that whenever a court is asked to make an order which prevents or restricts publication of a party's name or other information which may enable him to be identified "it is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required for that purpose". Moore-Bick LJ also reiterated the obvious point that "an order for anonymity should not be made simply because the parties consent to it".

44. Mr Coren also referred to Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523. In that case Gloster LJ at paragraph [58] referred to various paragraphs of Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003 which at paragraph [9] referred to open justice as a "fundamental principle" and at paragraph [10] stated:

"Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional …"

Paragraph [13] provided:

"The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence."

45. In R (Haralambous) v Crown Court of St Albans [2018] UKSC 1, [2018] AC 236 the Supreme Court at paragraph 61 (per Lord Mance DPSC with whom Lords Kerr of Tonaghmore, Hughes and Lloyd-Jones and Lady Black of Derwent SCJJ agreed) stressed that:

"As a matter of principle, open justice should prevail to the maximum extent possible …"”

2. In respect of access to the records of the court and open justice generally see Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38. The court stated that the constitutional principle of open justice applied to all courts and tribunals exercising the judicial powers of the state. The principal purposes of the open justice principle are two-fold: to hold individual courts and judges to account, and to enable the public to understand how the justice system works and why decisions are taken.

3. The Appeal Division (Judge of Appeal Storey and Deemster Doyle) in Kelly v HMAG (24 November 2017 stated:

“12. The principle of open justice is an important principle in this jurisdiction. See for example Taylor and Neale 2011 MLR 366 at paragraphs 25 and 32; 2012 MLR 199 at paragraph 97 and Delphi Trust Limited 2014 MLR 51. The publication of judgments in respect of appeals in open court is an important aspect of that principle. Against that we must balance any potential prejudice to a fair retrial if the Appellant is successful before the Judicial Committee of the Privy Council and a retrial ordered.”

In that case publication of the judgment was embargoed with after determination of an application before the Judicial Committee of the Privy Council for special leave to appeal which was subsequently refused.

4. See also Deemster Doyle’s Oxford Lecture 2018 The Rule of Law and Open Justice (28 June 2018) available at www.courts.im.

5. Deemster Kerruish in Byrne (judgment 30 March 2006) at paragraph [14] stated:

“The general rule is that all hearings ought to be in public.”

6. The principle of open justice is well established in Manx law. In volume 1 of the Statutes of the Isle of Man 1417-1824 at page 217 Statute Laws 1737 VI(3) there is reference to:

“… the Partys may have an Opportunity to be present, to make their Objections, if they have any, in open Court …”

7. See also section 347 of the Criminal Code 1872 which provides for a misdemeanour punishable by way of imprisonment for a term not exceeding two years and a fine, in respect of “any act or thing … against public justice”.

8. Lady Hale in R(C) v Secretary of State for Justice [2016] UKSC 2 at paragraph 1 stated:

“The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge …”

9. Lord Mance (with whom Lord Kerr, Lord Hughes, Lady Black and Lord Lloyd-Jones agreed) in R(Haralambous) v Crown Court of St Albans [2018] UKSC 1 started the new year off at paragraph 61 with the following important comment:

“As a matter of principle, open justice should prevail to the maximum extent possible.”

10. Geoffrey Ma (the Chief Justice of Hong Kong) in his speech at the Ceremonial Opening of the Legal Year 2018 stated:

“The transparency that is the characteristic of Hong Kong’s common law system comes in two obvious forms. First, it is important to be reminded that almost all of the proceedings in Hong Kong’s courts are open to the public to observe. This applies whether in the magistrates’ courts or in the Court of Final Appeal. The only occasion when the public is not permitted to attend court proceedings is when there are established exceptions that are dealt with, such as children or in certain injunction proceedings. The second aspect of transparency is that the judgments of the courts containing the reasons in arriving at the legal result are published and made publicly available. This means that any member of the public can scrutinise every judgment of the courts …”

11. Rule 9.2(1) of the Rules of the High Court of Justice 2009 (the “2009 Rules”) provides that:

“The general rule is that a hearing is to be in public.”

12. Rule 9.2(3) of the 2009 Rules provides:

“A hearing, or any part of it, may be in private if —

(a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters), and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any minor or patient; (e) it is a hearing of an application made without notice, and it would be unjust to any respondent for there to be a public hearing; (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or (g) the court considers this to be necessary, in the interests of justice.”

13. See Rule 12.63(1) of the 2009 Rules which provides that subject to paragraph (2) “the court on hearing an application for an order of committal may sit in private” in certain cases but if it does under Rule 12.63(2) certain information must be stated in public.

14. Article 6 of the European Convention of Human Rights and Fundamental Freedoms provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

15. From 6 April 2019 a number of changes to the English CPR came into effect with the intention of reinforcing the principle of open justice and clarifying how it should operate in the English civil courts. The amendments included:

• emphasising the general rule that hearings are to be held in public, and clarifying the test for when a court may direct a private hearing or party/witness anonymisation;

• making it clear that the general rule applies not only to traditional hearings in a courtroom, but also those held in chambers or via telephone/videolink;

• a new express duty on the court to take reasonable steps to enable public access to hearings;

• a new procedure requiring orders for a private hearing or anonymisation to be published on the courts’ website;

• a new power for judges to direct a represented party to compile and share with a litigant in person a note of a hearing pending the receipt of a transcript.

16. Lord Neuberger in a speech at the Hong Kong Foreign Correspondents’ Club entitled The Third and Fourth Estates : Judges, Journalists and Open Justice delivered on 26 August 2014 stated:

“12. … Open justice is an essential feature of the rule of law. In its most basic form, it means that court hearings take place in public and judges’ decisions are available to the public. If courts sit in private, judges cease to be properly accountable for their decisions, as the public do not know what the evidence and arguments were put before the judge, or why the judge reached a particular decision. Judges will start to get into bad habits if the public and the press are excluded from their courts. And, even if judges resist the temptation to misbehave, how can the public have confidence in them if nobody can see them at work? Sunlight, it has been said, is the best of disinfectants. It is no coincidence that, in England, it was decided that evidence obtained by torture could not be given to a court in the same year that the notorious secret tribunal, the Court of the Star Chamber, was abolished. Sometimes, cases, or aspects of cases, have to be kept secret, e.g. to protect children or confidential information, but, as has been emphasised time and again by judges, in such cases secrecy should only be permitted if it is absolutely necessary, and, even then, it should be kept to a minimum.”

17. Rule 9.2 of the 2009 Rules should now be read in light of the Report of the Committee on Super-Injunctions May 2011 (the “Report”) which at paragraph 6 on page 15 invites the English Civil Procedure Rules Committee to review CPR 39.2 so that it neither replicates nor conflicts with substantive law, makes appropriate reference to strict necessity and is internally consistent.

18. Paragraph 1.36 of the Report states:

“The principle of open justice is an essential aspect of our constitutional settlement. It exists in order to facilitate the proper administration of justice and the rule of law. It is not an absolute principle. This is the case because in certain circumstances strict adherence to the principle would undermine, or frustrate the proper achievement of justice, and thereby undermine the rule of law. Derogations from it can only be made where they are strictly necessary to enable the court to do justice, and are a proportionate means to facilitate the proper administration of justice.”

19. The Report at paragraph 1.37 stresses:

“Derogations from open justice can never be matters of routine. They can only ever be exceptional and can only be justified on grounds of strict necessity.”

20. Derogations should, where justified, be no more than strictly necessary to achieve their purpose. There is no general exception to open justice where privacy or confidentiality is in issue. Exclusions of the public must be no more than the minimum strictly necessary to ensure that justice is done and the parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case (see Ambrosiadou v Coward [2011] EWCA Civ 409 at 50-54). Anonymity will only be granted where it is strictly necessary, and then only to that extent. The burden of establishing any derogation 13

from the general principle lies on the person seeking it. It must be established by clear and cogent evidence (taken from Lord Neuberger’s summary in the Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003).

21. Deemster Doyle in Taylor and Neale 2011 MLR 366 (judgment 17 June 2011) at paragraph 32:

“Derogations from open justice can only properly be made when, and to the extent that, they are strictly necessary in order to secure the proper administration of justice.”

22. At paragraph 25:

“The principle of open justice is an important principle in this jurisdiction and indeed in other jurisdictions within Europe and further afield. It is a principle that should be acknowledged and recognised by advocates and by other court users.”

23. The Appeal Division in Taylor and Neale 2012 MLR 199 (judgment of Judge of Appeal Tattersall and Deemster Corlett 21 March 2012) at paragraph 97:

“Finally, we have no doubt that wasted costs hearings should normally be heard in open court and any orders made should, save in the most exceptional circumstances, refer to the names of the parties. Anonymity is inconsistent with the overriding requirement for open justice and transparency. We agree with Deemster Doyle that judgments styled like alphabet soup, using the provocative words referred to in Application of Guardian News and Media Ltd [2010] UKSC 1 [2010] 2 All ER 799, [2010] 2 AC 697, have no place in the judicial kitchen.”

24. The Appeal Division (Judge of Appeal Tattersall and Deemster Rosen QC) in A v B, C, D, E, F, G and H (judgment 19 April 2017) introduced 8 letters into the soup in the judicial kitchen and ordered that the non-anonymised version of the judgment be placed on the court file but not on the online judgments website. The appeal involved a purported appeal from an arbitrator’s decision and interim award. It was held that the appellant’s applications were:

“… wholly misconceived and liable to be and were dismissed for want of jurisdiction.” (paragraph 23 of the judgment)

25. In Lewis and others v Attorney General 2014 (1) JLR Note 1 the court dealt with a request in effect to ban any reference to an appeal, where there may be an allegation in respect of the adequacy of legal representation, until the advocate concerned had an opportunity to make his views on a publicity restriction known. The Jersey Court of Appeal had no difficulty in refusing such request. The general principle was that all proceedings should take place in public in open court and the principle should not be displaced except for compelling reasons, and potential embarrassment to a party’s former advocate was not enough. Nutting JA stressed that advocates must develop broad backs in relation to criticism which they might receive in court from judges, other advocates or witnesses. Such matters could be reported in the press without restriction.

26. In R v Legal Aid Board ex parte Kaim Todner [1999] QB 966 a firm of solicitors attempted to restrain the disclosure of their identity in proceedings after their legal aid franchises had been terminated following allegations of dishonesty by former employees on the grounds that incalculable damages would be caused if such matters were made public. The judge refused to make an anonymity order. The applicants appealed and at the start of the appeal made a further application for anonymity in respect of the appeal whatever its outcome, indicating that if such an order were not made they would withdraw the appeal or consent to its dismissal. The Court of Appeal refused to make the order and indicated that it would not consent to the withdrawal of the appeal. The appeal was dismissed and it was held that any interference with the public nature of court proceedings was to be avoided unless justice required it. Lord Woolf at page 975 stated:

“There can be no justification for singling out the legal profession for special treatment.”

Lord Woolf at page 978 indicated that the nature of the proceedings was also relevant and stated:

“If the proceedings are ex parte and involve serious allegations being made against another party who has no notice of those allegations, the interests of justice may require non-disclosure until such a time as a party against whom the allegations are made can be heard.”

Lord Woolf at page 979 stated:

“It is not a reasonable basis for seeking anonymity that you do not want to be associated with a decision of the court. Nor is it right for an appellant to seek to pre-empt the decision of this court by saying in effect we will not co-operate with the court unless the court binds itself to grant us anonymity. The applicants had secured anonymity until the end of the appeal and they could not reasonably ask for more. It also cannot be reasonable for the legal profession to seek preferential treatment over other litigants. If the applicants had not raised the issue of anonymity, at the leave stage, it is not likely that their proceedings would have resulted in any publicity at least until the substantive hearing. If publicity did result from the substantive hearing then that publicity, so far as it was unfair, would be mitigated within a short time scale by the judgment of the court. If the judgment was adverse, then it is accepted on their behalf, that publicity could no longer be restrained since their alleged conduct should then be known. If the judgment was favourable, then the judgment would to a substantial extent provide the answer to any adverse publicity.”

27. See ruling made on 10 September 2014 of Judge Howard Riddle, Senior District Judge (Chief Magistrate) in R v E7:

“… a defendant in criminal proceedings must be identified … Open justice is central to the administration of justice … [reference to Harper and Johncox [2010] EWHC 1319 where an application that the home addresses of high- ranking police officers involved in covert operations should not be published was refused] … So is this a case where an exception to the usual rule is necessary and proportionate? In my assessment, and bearing in mind that I have not heard full argument, the answer is no … I am satisfied that there is no risk to 15

the administration of justice by identifying the defendant. I am also satisfied that there is no substantial or immediate risk to his life … Therefore my decision is to refuse anonymity.”

28. R(C) v Secretary of State for Justice [2016] UKSC 2 dealt with an appellant who had a history of severe mental health problems. The Supreme Court unanimously allowed an appeal against a refusal to maintain an anonymity order protecting the appellant. The Supreme Court held that there was no presumption of anonymity and the main question was whether an order for anonymity was necessary in the interests of the patient.

29. See Department of Health v Mudhafar Al-Hiwidi (Deemster Doyle judgment 26 October 2011) at paragraph 9 stressing again the need for open justice and transparency. See also Teare J’s judgment in Suez Fortune Investments Ltd v Talbot Underwriting Ltd [2018] EWHC 2929 (Comm) in respect of concealing the identity of a witness.

30. The following are extracts from Deemster Doyle’s judgment in Financial Supervision Commission v LG SP Investments Limited 2012 MLR 556 (judgment delivered 16 October 2012):

“17. I have not been persuaded that I should make an order restricting the publication of the Inspectors' Reports. There are three main areas to consider. First, the requirement of open justice. Secondly, the public interest in the publication of reports of court appointed inspectors. Thirdly, the reputational and other issues raised on behalf of the Companies.

18. Open justice should prevail in this jurisdiction. See my judgment at first instance in Taylor and Neale (17 June 2011) and the Appeal Division judgment (21 March 2012). At paragraph 97 the Appeal Division refer to the "overriding requirement for open justice and transparency".

19. I accept that the principle of open justice is not an absolute principle. It is subject to exceptions. I have balanced the interests of open justice, the public interest in the publication of the Inspectors' Reports and the interests of the Companies and those closely associated with them. Simply because publicity of court proceedings or of findings of court appointed inspectors may be inconvenient or potentially damaging to reputations is not a good reason for there to be a prohibition on publishing reports of inspectors.”

31. Rule 4 of the somewhat outdated Companies (Winding-Up) Rules 1934 specifies the matters and applications which shall, in a winding up context, be heard in open court, unless a judge shall in any case otherwise order. Rule 4(2) provides that any other matter or application may be heard and determined in Chambers.

32. Lord Atkinson in Scott v Scott [1913] AC 417:

“… in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”

33. X v Australian Prudential Regulation Authority [2007] HCA 4:

“90. ... It may cause some prejudice to the parties, perhaps, but ordinarily the administration of justice is strengthened by openness and full disclosure ...

92. ... it is up to the courts themselves to defend the general principle of openness and transparency of proceedings. Judicial suppression creates suspicion and sometimes concern. It should ordinarily be kept to a strict minimum ... [Litigants] should normally be expected to wear the burden of any publicity ...”

34. Judge Fraser in R v Rush (District Court at Auckland New Zealand ruling dated 7 June 2012) discharged an order suppressing the naming of an acquitted defendant. Judge Fraser stated at paragraph [7] of the ruling that “... the public interest in this matter is not diminished by the fact that the applicant was acquitted of the charges”. There was reference to a financial impact consequent upon publication. At paragraph [9] of the ruling Judge Fraser added:

“There are no compelling reasons, or very special circumstances in this case, that justify departure from the principle of open justice.”

35. See Articles 6 (fair trial), 8 (private and family life) and 10 (freedom of expression) of the European Convention on Human Rights and Fundamental Freedoms and consider the need to balance competing interests. Simple assertions of confidentiality or damage if matters were made public or desires to consider feelings of delicacy and embarrassment should not prevail. See ENRC v Dechart [2016] EWCA Civ 375; [2017] 3 All ER 1084 where it was held that the judge was right to conduct a costs hearing in private otherwise publicity could have damaged legitimate confidentiality in the form of legal professional privilege and may have prejudiced ongoing criminal investigations. In that case putting the confidential information into the public domain (whether subject to continuing legal professional privilege and whether or not that had been waived) would have prejudicial ENRC. The other side had no substantial legitimate interest in having the proceedings heard in public. See also Henderson J in the Banerjee case [2009] EWHC 1229 (Ch) at paragraph 14 where reference was made to the need to strike a fair balance between the interest of publicity for court proceedings and the interest of a party or third person in maintaining confidentiality of personal data. This appears to go against the incoming tide of openness and transparency. Has the highwater mark been reached yet?

36. See also Khuja (formerly PNM) v Times Newspapers & Ors [2017] UKSC 49 which considered issues of privacy, open justice and the right to report on judicial proceedings with Lord Sumption holding that there was no reasonable expectation of privacy in relation to proceedings in open court.

37. See also the judgment of Flaux J delivered on the 21 January 2013 in Graiseley Properties Limited v Barclays Bank plc [2013] EWHC 67 (Comm). Flaux J at paragraph 16 stated:

“The starting point for any consideration of the law in this area [whether to grant anonymity orders] is the fundamental principle of English law of open justice, that the general rule (now reflected in CPR 39.2) is that all hearings, whether interlocutory or at trial are public.” 17

38. Flaux J added:

“46. ... in my judgment there is not some general exception to the principle of open justice to protect non-parties from identification in proceedings to avoid the risk of reputational harm ...

52. In my judgment, the law is clear that anonymity orders will only be made in those cases where the applicant for the order establishes that it is strictly necessary for the proper administration of justice ...

54. That the proper administration of justice does not include protecting people from reputational harm emerges from a number of authorities.”

39. Kennedy v The Charity Commission [2014] UKSC 20 concerned Article 10, the principle of open justice at common law, the exceptions to it and the Freedom of Information Act 2000. Lord Mance at paragraph 1 stated:

“1. Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend upon it; likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection. But information can be genuinely private, confidential or sensitive, and these interests merit respect in their own right and, in the case of those who depend on information to fulfil their functions, because this may not otherwise be forthcoming. These competing considerations, and the balance between them, lie behind the issues on this appeal.”

Lord Toulson at paragraph 114 stated:

“There may be many reasons why public access to certain information about the court proceedings should be denied, limited or postponed. The information may be confidential; it may relate to a person with a particular vulnerability; its disclosure might impede the judicial process; it may concern allegations against other persons which have not been explored and could be potentially damaging to them; it may be of such peripheral, if any, relevance to the judicial process that it would be disproportionate to require its disclosure; and these are only a few examples.”

40. In R(T) v Secretary of State for the Home Department [2014] UKSC 35 the Supreme Court of the United Kingdom considered the provisions of the Rehabilitation of Offenders Act 1974 (Act of Parliament) and warnings issued to a young boy and a caution issued to a woman. It was held that disclosure of such matters to a potential employer constituted an interference with the right to private life guaranteed by Article 8 of the European Convention of Human Rights and Fundamental Freedoms. See also the decision of the European Court of Justice in May 2014 in respect of the Google Spain case ECJC – 131/12 May 13, 2014 and the “right to be forgotten”. See also any appeal from the Amsterdam District Court ruling in 2019 that a doctor’s right to privacy weighed more heavily than the public interest in knowing about a doctor’s past medical misfeasance. 18

41. Lord Neuberger in a keynote address Technology and the Law (21 April 2016) stated:

“27. And in the traditional world of hard copy, most information would be difficult to access a year later. Yesterday’s newspaper would be today’s fish and chip wrapping, and tomorrow’s waste material. However, in the brave new world of webpages, yesterday’s news will be accessible not merely next year but next century, and it is relatively easily findable through a search engine. Hence the development of the so-called “right to be forgotten”, as developed by the Luxembourg court in the Google Spain case, as a result of which search engine companies have accede to requests to remove outdated, embarrassing stories from their websites. Quite how far this decision, which nowhere considers freedom of expression, goes remains to be seen.”

42. In the normal course of events any written or electronic communications to the clerk to the court should be copied by the party sending the communication to all other relevant parties and this should be clearly marked on the face of the communication. In the normal course of events the court should only see what all the parties see. In Lime Petroleum plc (in liquidation) (judgment 13 April 2017) I stated:

“25. Mr Wild is right to refer to the importance of open justice and the principle that what is filed with the court should normally be seen by all other parties. In the Petition of Attorney General and Chief Constable (judgment 31 January 2006) I stated:

“13. I have regard to the important and fundamental principle of open justice that a judge should not receive representations from one side which are not copied to the other. (See for example the decision of the High Court of Australia in Re JRL ex parte CJL (1986) 161 CLR 342). Save and except in rare and exceptional cases such as public interest immunity matters, it is important that the court sees and hears no more than what all parties to the proceedings see and hear. Any communications with the court (such as correspondence to the clerk to the court) should be copied to all other parties to the proceedings. The Deemster should not see what the parties have not seen. The parties should see everything that the Deemster has seen. Justice must not only be done it must be seen to be done.

14. A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, transparent impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge hears the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives. It would be inconsistent with basic notions of fairness that a judge should take account or even receive communications which are not copied to all parties to the proceedings.”

26. In Bitel LLC (judgment 8 December 2006) I stated:

“170. In my judgment it is trite law that in the normal course of events whatever is presented to the Deemster at the without notice stage should be provided to the parties who are affected by the order made at the 19

without notice stage subject to any specific order made by the Deemster granting the without notice order. If an applicant has made previous unsuccessful applications involving the same parties then the applicant should in the normal course of events disclose those applications and the documentation and information presented in support of those applications to the parties who would have been on the receiving end of the relief had the application been successful. In a nutshell the respondent needs to be provided with exactly what was before the Deemster when he granted or refused the without notice orders. In the Isle of Man I can see no difficulty with the applicant providing the respondent with the audio recording of the proceedings and as soon as it is available a typed transcript. In the Isle of Man proceedings before the High Court are recorded and copies of recordings in the form of a compact disc can be made available within minutes after the hearing. There can be little excuse for an applicant not providing a respondent with a copy of the recording as soon as it is available. The applicant should promptly provide the respondent with copies of the papers that were presented to the court otherwise the respondent cannot know the case against him or have a proper opportunity to discharge the order.

193. In the Petition of the Attorney General and the Chief Constable (CP 2005/146 judgment delivered on the 31st January 2006) I stressed that “The parties should see everything that the Deemster has seen” save and except in rare and exceptional cases such as public interest immunity matters. It is well established that an applicant for without notice relief is under a duty to promptly disclose to the other side, once the proceedings become with notice proceedings, information and documentation in respect of the without notice hearing. If any authority is required for that basic proposition see for example Thane Investments v Tomlinson [2002] All ER (D) 91, Gill v Flightwise Travel Service [2003] EWHC 3082 and Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd (Times Law Reports 10th November 1999).”

27. Clarke L J (with whom Chadwick L J and Auld L J agreed) in a judgment in Lloyds Bank Plc v Cassidy [2004] EWCA Civ 1767 at paragraph 71 stated:

“… In my opinion a judge should not be provided with transcripts in circumstances where one of the parties is not, at any rate without informing the judge of the position and giving that party the opportunity to make submissions to the judge. There is an important general principle that save in exceptional circumstances, no document or other material should be provided to a judge without the same material being provided to the other parties in the case. The respondents failed to adhere to that principle in this case. However, as Mr Haines properly accepted, the question is whether that procedural irregularity caused any prejudice or injustice to the applicant. Mr Haines again properly accepted that it did not unless he could show that the appeal should be allowed on the basis of material in the transcripts which he would have had regard to. He now has the transcripts. We have considered all the evidence before the judge which we have been invited to consider and, for the reasons I have tried to

give earlier, I have reached the clear conclusion that the applicant has no arguable case that the judge’s decision was wrong.

It follows that, unsatisfactory though the position with regard to the transcripts was, it affords no separate ground of appeal.”

28. In Fred Perry (Holdings) Limited v Brands Plaza Trading Limited [2012] EWCA Civ 224, Lewison L J at paragraph 44 stated:

“It is, of course, a fundamental principle of our system that judges should not act upon evidence which only one side has seen. Whether or not it would have made a difference, and I am not saying that it would or it would not have done, that is such a fundamental principle of the common law that with regret I have come to the conclusion that the judge’s order for interim payment cannot stand for that reason alone. It will, of course, be open to the claimant to reapply for interim payment and it will have to decide how to deal with the confidential schedule either by a renewed request for confidentiality undertakings or waiving confidentiality, or proceeding without reference to the confidential material or applying to the court for an injunction in anticipation of its disclosure to the other side, but in my judgment the order cannot stand on the basis upon which it was made.”

29. In R (British Sky Broadcasting Limited) v The Commissioner of Police of the Metropolis [2014] UKSC 17 the issue was whether on the hearing of an application under the Police and Criminal Evidence Act 1984 (Act of Parliament) the court may have regard to evidence adduced by the applicant which had not been disclosed to the respondent. Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agreed) stated at paragraph 30:

“Equal treatment of the parties requires that each should know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it. That is inherent in the concept of an “inter partes” hearing.”

30. Lord Reed sitting in the Supreme Court of the United Kingdom in A v British Broadcasting Corporation [2014] UKSC 25 explained:

(1) the importance of the general constitutional principle of open justice (paragraphs 23 to 25);

(2) that there were exceptions. The courts have an inherent jurisdiction to determine how the principle of open justice should be applied (paragraphs 27 to 37); and

(3) that central to the court's evaluation will be the purpose of the open justice principle, the potential value of the information in advancing that purpose, and any risk of harm that its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others (paragraph 41).”

43. In R v Parton 2009 MLR 370 I stated:

“120. The concept of fairness means that all parties to proceedings should be entitled to proper participation in the proceedings. The concept of fairness means that all parties to proceedings should, in principle, be given the opportunity to see and comment upon all documents which have been filed with the court and which may impact upon the court’s decision. The entitlement to disclosure of relevant documentation is not however an absolute right. It is subject to other competing interests. There are exceptions (such as matters covered by public interest immunity) to the general principles in favour of disclosure. …

122. In the normal course of events any written or electronic communications filed with the clerk to the court or court administration by the prosecution should be copied by the prosecution to the defence and those filed by the defence should be copied by the defence to the prosecution. This should be clearly marked on the face of the communication. In the normal course of events the court should only see what all the parties see. I accept that material covered by public interest immunity still represents an exception to these fundamental principles of fairness, openness and transparency.

123. A central element in the system of justice administered by our courts is that it should be fair and it must be open, transparent, impartial and even- handed. One of the fundamental principles of law is that a Deemster hears cases before him based on the material presented to him and made available to the parties to the proceedings. It would be inconsistent with basic notions of fairness that a Deemster should take into account or even receive relevant documents which are not copied to all parties to the proceedings.”

44. The Appeal Division in Alder v Lloyds Bank International Limited (12 June 2017) stated:

“75. The High Bailiff distinguished reliance on Department of Health v Al Hiwidi [26 October 2011] in which Deemster Doyle had concluded, without hesitation, that he should see and hear no more than the parties saw and heard [the principle of open justice] because that was not a case where the 2009 Rules [in this case rule 12.9(4)] expressly provided that an application by a creditor for execution may be made without notice.”

45. In the Privy Council case of Dr Anneliese Diedrichs-Shurland v Talanga-Stiftung (judgment 6 December 2006) Lord Hoffmann described letter communications by one party to the court with no copy being sent to the other parties as “grossly improper”.

46. See also Chief Justice Smellie’s judgment in AHAB v SICL (Grand Court Cayman Islands 28 November 2017) in respect of the applicability of rules for regulating access to the court file and the open justice principle which sets out the relevant law. The decision itself was overturned on the facts (The International Banking Corporation BSC (in admin) v AHAB 30 July 2018). Consider the judgment in detail. See also Blue v Ashley [2018] 2 ALL ER 284 Leggatt J – application by non-party newspaper to have access to witness statement in advance of trial. See also China Fishery Group Limited [2019] HKCFI 174 Harris J declined to give leave for a copy of a decision and reasons 22

marked “Not Open to the Public” to be used in proceedings in the United States Bankruptcy Court of the Southern District of New York. The learned judge referred to the principle of open justice, international judicial assistance and public policy.

47. The Supreme Court of the United Kingdom in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 provided useful guidance in respect of the access to records of the court. The extent of any access permitted by the court’s rules is not determinative (except where they contain a valid prohibition). The default position is that the public should be allowed access, not only to the parties’ submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing, which are not limited to those the judge had been asked to or has said he has read. A non-party must however explain why he seeks access and how granting access will advance the open justice principle. The court will carry out a fact-specific balancing exercise to take account of any countervailing principles, such as the need to protect national security, privacy interests or commercial confidentiality. The practicalities and proportionality of granting the request will also be relevant, especially when proceedings are over.

48. See AZT and others v AZV [2012] SGHC 116 (Andrew Ang J : Singapore High Court) in respect of sealing court documents making reference to confidential arbitration matters.

49. Bayley J in Daubney v Cooper [1829] 109 ER 438 stated:

“... it is one of the essential qualities of a Court of Justice that its proceedings should be in public and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, - provided they do not interrupt the proceedings and provided there is no specific reason why they should be removed – have the right to be present for the purpose of hearing what is going on.”

50. Lord Judge C J in R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65 stated:

“38. Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial. So it should be, and any exception to the principle must be closely limited. In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspaper or television, acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.”

51. Lord Neuberger at paragraph 176 stated:

“... the central point [is] that the court should administer justice in public, which means that all parts of a judgment should be publicly available, unless there is a very powerful reason to the contrary. This principle is so important not merely because it helps to ensure that judges do not, and do not appear to, abuse their positions, but also because it enables information to become available to the public.” 23

52. In Harding v Officeholder 2013 MLR 293 (judgment 19 June 2013) Deemster Doyle reviewed some of the authorities and stressed the importance of open justice (see paragraphs 30-37 of the judgment):

“30. The principle of open justice is well established in this jurisdiction. Taylor and another v Attorney General (No.2) 2012 MLR 199 is a recent example where the Appeal Division at paragraph [97] stated “Anonymity is inconsistent with the overriding requirement for open justice and transparency”. In my judgment at first instance in that case delivered on 17th June 2011 reported at 2011 MLR 366 I stated:

“Derogations from open justice can only properly be made when, and to the extent that, they are strictly necessary in order to secure the proper administration of justice.” (paragraph [32])

The applicant in that case sought anonymity because of his concern over his reputation in a compact jurisdiction (see paragraphs [34] and [36] of the judgment).

At paragraph [39] of the judgment, I stated:

“I am not persuaded however that the concern of Mr Taylor in respect of his reputation in this case should override the important principle of open justice in this jurisdiction.”

At paragraph [41] I added:

“I see no good reason to delete from the judgment references to the names of the claimants in this case. I see many good reasons as to why this court should administer justice in open court and the names of parties to the proceedings should be openly specified in the judgments and orders of the court.”

31. In Financial Supervision Commission v LG SP Investments Limited (judgment delivered 16th October 2012) I stated:

“18. Open justice should prevail in this jurisdiction ...

19. I accept that the principle of open justice is not an absolute principle. It is subject to exceptions ... Simply because publicity of court proceedings or of findings of court appointed inspectors may be inconvenient or potentially damaging to reputations is not a good enough reason for there to be a prohibition on publishing reports of inspectors.”

32. See also the English authority R (on the application of Christopher Willford) v Financial Services Authority [2013] EWCA Civ 674 (judgment delivered on 13th June 2013) and helpfully brought to the court's attention on 14th June 2013 by Mrs Bermingham and referred to this morning by Mr Farrer.

33. Mr Farrer also usefully brought to my attention Rubin v Director of Public Prosecutions [1990] 2QB 80 (Rubin) where Watkins L J at page 90 stated:

“Unquestionably, a defendant is entitled to know the identity of who it is who accuses him of an offence and that person must have authority to lay an information ... The paramount considerations are the authority to prosecute and the right to know the prosecutor. As to the former, there can in the present case be no doubt. As to the latter, it was clear that a police officer was prosecuting. All that was lacking was his easily ascertainable name.”

34. Advocate Laughton made similar comments (see the report in the Manx Sun 12 December 1874) in the Isle of Man:

“But it could not be a state secret. It was a public prosecution in a public court of one of Her Majesty's subjects, and it could be no state secret whether or not his Excellency the Lieut. Governor instigated this prosecution ... but in no country under the sun is there such confidence in the administration of justice as in this happy country we live in; but if such things as this go on unchecked, we shall lose all sense of what is decent and right and have to go back to the old rules of might making right ... And that these questions were relevant there can be no doubt because they went to the very foundation of the case, viz., to show that this prosecutor was not bringing the case at his own bidding, but by direction of another person altogether.”

35. The need for open justice and the disclosure of the identity of the Officeholder in this case easily prevailed over any subjective fears of “personal, professional or public criticism”. Those public officials who authorise criminal prosecutions should not fear “personal, professional or public criticism”. Such potential criticism goes with the territory such officials willingly inhabit. Attorney Generals, Government Advocates, persons who authorise prosecutions and persons who preside over criminal proceedings may all be subjected to criticism (on occasions ill-informed). They should not fear criticism. They must be accountable and their identities must be publicly known. They should just get on with their jobs to the best of their abilities without fear of criticism. They can do no more than that and their public duty requires them to perform their functions without fear of criticism. It is interesting to note that the oath of Attorney General states that the Attorney will “faithfully, justly, truly, without favour or affection, dread or fear, envy or malice, and without respect to love or gain, kindred or friendship, consanguinity or affinity” perform his duties as required by the law. Those who are delegated to perform the duties of the Attorney General in his absence or during his inability to perform them should not fear “personal, professional or public criticism”.

36. Mr Harding and the Manx public were entitled to the disclosure of the identity of the Officeholder who authorised the criminal prosecution against him. This is pursuant to the principle of open justice and is consistent with the comments of Watkins L J in Rubin. Mr Harding was entitled to this information to enable him and his legal team to satisfy themselves that all was in order in respect of the authorisation of the prosecution by the Officeholder. They were concerned over the lack of disclosure of this important information which should have been in the public domain. They referred to the contents of the witness statement of the Director of Prosecutions, Stuart Ronald Neale, dated 24th May 2013 which seemed to suggest that despite his letter of 14th October 2011 to the Chief Secretary the prosecution was instigated without reference to him. Mr Farrer says that suspicion that all was not as it should be was “fostered by the bizarre exclusion of the Director of Prosecutions from the decision to use s20(2)(b), following his previous involvement.” Seth Fargher Caine in his witness statement dated 5th April 2013 at paragraph 17 stated: “A dispassionate observer might infer that those involved in this exercise have something to hide.” I do not benefit from any evidence of the Chief Secretary on the point and I say no more in respect of it other than to add that I can appreciate why the suspicions of Mr Harding and his defence team were aroused in such circumstances.

37. There is a strong public interest in open justice and in the identity of the Officeholder being disclosed. Mr Harding was entitled to that information. The Manx public were entitled to that information. The failure to disclose such information merely excited suspicions and did not assist in generating confidence in the criminal justice system. Advocate Laughton would have been outraged. The identity of the Officeholder should have been disclosed from the outset. It was not. The identity of the Officeholder has now been disclosed albeit very late in the day. This court has received no satisfactory explanation as to why it was not disclosed in October 2012.”

53. On the same day as Deemster Doyle delivered his judgment in Harding the members of the Supreme Court of the United Kingdom delivered their judgments in Bank Mellat v Her Majesty’s Treasury (No.1) [2013] UKSC 38 a case which also involved the fundamental principle of open justice. Lord Neuberger stated:

“1. This judgment is concerned with two connected questions:

(i) Is it possible in principle for the Supreme Court to adopt a closed material procedure on an appeal? If so, (ii) Is it appropriate to adopt a closed material procedure on this particular appeal?

A closed material procedure involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing (i.e. a hearing at which the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present), and to contemplate giving a partly closed judgment (ie a judgment part of which will not be seen by one of the parties).

Open justice and natural justice

2. The idea of a court hearing evidence or argument in private is contrary to the principle of open justice, which is fundamental to the dispensation of justice in a modern, democratic society. However, it has long been accepted that, in rare cases, a court has inherent power to receive evidence and argument in a hearing from which the public and the press are excluded, and that it can even give a judgment which is only available to the parties. Such a course may only be taken (i) if it is strictly necessary to have a private hearing in order to achieve justice between the parties, and, (ii) if the degree of privacy is kept to an absolute minimum – see, for instance A v Independent News & Media Ltd [2010] EWCA Civ 343, [2010] 1 WLR 2262, and JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645. Examples of such cases include litigation where children are involved, where threatened breaches of privacy are being alleged, and where commercially valuable secret information is in issue.

3. Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to fundamental principle than a private hearing. At least a private hearing cannot be said, of itself, to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the court can look at evidence or hear arguments on behalf of one party without the other party (“the excluded party”) knowing, or being able to test, the contents of that evidence and those arguments (“the closed material”), or even being able to see all the reasons why the court reached its conclusions.

4. In Al Rawi v Security Service [2012] 1 AC 531, Lord Dyson made it clear that, although “the open justice principle may be abrogated if justice cannot otherwise be achieved” (para 27), the common law would in no circumstances permit a closed material procedure. As he went on to say at [2012] 1 AC 531, para 35, having explained that, in this connection, there was no difference between civil and criminal proceedings: “[T]he right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that”.

5. The effect of the Strasbourg Court’s decisions in Chahal v United Kingdom (1996) 23 EHRR 413 and A and others v United Kingdom [2009] ECHR 301 is that Article 6 of the European Convention on Human Rights (“Article 6”, which confers the right of access to the courts) is not infringed by a closed material procedure, provided that appropriate conditions are met. Those conditions, in very summary terms, would normally include the court being satisfied that (i) for weighty reasons, such as national security, the material has to be kept secret from the excluded party as well as the public, (ii) a hearing to determine the issues between the parties could not fairly go ahead without the material being shown to the judge, (iii) a summary, which is both sufficiently informative and as full as the circumstances permit, of all the closed material has been made available to the excluded party, and (iv) an independent advocate, who has seen all the material, is able to challenge the need for the procedure, and, if there is a

closed hearing, is present throughout to test the accuracy and relevance of the material and to make submissions about it.

6. The importance of the requirement that a proper summary, or gist, of the closed material be provided is apparent from the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. At para 59, Lord Phillips said that an excluded party “must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations”, and that this need not include “the detail or the sources of the evidence forming the basis of the allegations”. As he went on to explain: “Where, however, the open material consists purely of general assertions and the case against the [excluded party] is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.”

7. The nature and functions of a special advocate are discussed in Al Rawi [2012] 1 AC 531, by Lord Dyson, paras 36-37, and by Lord Kerr, para 94. As Lord Dyson said, the use of special advocates has “limitations”, despite the fact that the rule-makers and the judges have done their best to ensure that they are given all the facilities that they need, and despite the fact that the Treasury Solicitor has ensured (to the credit of the Government) that they are of consistently high quality.

8. In a number of statutes, Parliament has stipulated that, in certain limited and specified circumstances, a closed material procedure may, indeed must, be adopted by the courts. Of course, it is open to any party affected by such legislation to contend that, in one respect or another, its provisions, or the ways in which they are being applied, infringe Article 6. However, subject to that, and save maybe in an extreme case, the courts are obliged to apply the law in this area, as in any other area, as laid down in statute by Parliament.”

54. Lord Kerr at paragraph 102 of his judgment in Bank Mellat referred to Lord Dyson’s judgment in Al-Rawi v Security Services [2012] 1 AC 531 at paragraph 11:

“The open justice principle is not a mere procedural rule. It is a fundamental common law principle.”

55. Lord Hope at paragraph 81 of his dissenting judgment in Bank Mellat stated that:

“The court cannot abrogate the fundamental common law right by the exercise of any inherent power... The court has for centuries been the guardian of these fundamental principles. The rule of law depends on its continuity to fulfil that role.”

56. Lord Hope at paragraph 98 of his dissenting judgment in Bank Mellat added:

“... Secret justice at this level is really not justice at all.”

57. Lord Reed at paragraph 137 of his dissenting judgment in Bank Mellat stated:

“... it is a matter of great importance that proceedings in the highest court in the land should be conducted in accordance with the highest standards of justice: in particular, that the court should sit in public, and that all parties should be equally able to participate in the hearing. There is to my mind a very serious question whether secret justice at this level is acceptable...”

58. See Lord Neuberger Open Justice Unbound (Judicial Studies Board Annual Lecture 16 March 2011) where reference is made to the fundamental principle that justice is done in public and what goes on in the courts should be open to public scrutiny.

59. See Deemster Doyle’s judgment in Delphi Trust Limited 2014 MLR 51 delivered on 4 February 2014 which considered the law in detail (probably too much) as to when it was appropriate for a court to sit in private when dealing with an application by a trustee for assistance, under the court’s inherent jurisdiction and/or section 61 of the Trustee Act 1961. The following is an extract from the judgment summary:

“The First Deemster reviewed authorities from England, Jersey, Guernsey, Bermuda, the British Virgin Islands and the Cayman Islands and set out the position in Manx law stressing the importance of the fundamental principle of open justice.

The First Deemster concluded that in broad terms the four categories of applications by trustees under section 61 of the Trustee Act 1961 could be shortly outlined as follows:

(1) Where the issue is whether some proposed action is within the trustees’ power which is ultimately a question of construction of the trust instrument or a statute or both;

(2) Where the issue is whether the proposed course of action is a proper exercise of the trustees’ powers where there is no real doubt as to the nature of the trustees’ powers and the trustees have decided how they want to exercise them, but, because the decision is particularly momentous, the trustees wish to obtain the blessing of the court for the action on which they have resolved and which is within their powers;

(3) In cases of the surrender of discretion properly so called;

(4) When trustees have actually taken action and that action is being attacked in hostile litigation as being either outside their powers or an improper exercise of their powers.

Normally (following authorities in England and Jersey) cases falling within categories (1) and (4) would be heard in open court whereas cases within categories (2) and (3) would be heard in private. These categories are not cast in concrete and there will be overlap and there may be applications not covered by any of the categories. Sometimes cases falling within category (1) may be heard in private. As Robert Walker J stated it will not always be easy to

distinguish situations in categories (1) and (2). It would however be very rare for an application in category (4) to be heard in private.

Normally the court would sit in private to hear a Beddoe application whereby a trustee is seeking directions from the court in respect of existing legal proceedings or proposed proceedings and in particular what action or stance the trustee should adopt in respect of such proposed or existing proceedings. The disclosure to the public or other parties of full and frank information in respect of such proceedings by a trustee including any weaknesses in the case of the trustee may adversely impact on the best interests of the beneficiaries. Applications by trustees for rectification would normally be dealt with in open court. Hostile applications to remove trustees or protectors would normally be dealt with in open court. Hostile applications for disclosure orders against trustees in respect of substantive proceedings for the replacement of trustees would normally be dealt with in open court.

In the Isle of Man we accord great importance to the fundamental principle of open justice. We also accord great importance to our vibrant trust industry and the need to respect the confidentiality of private trusts and the privacy concerns of settlors and beneficiaries in non-contentious matters.

The court should normally only sit in private where it is strictly necessary in order to secure the proper administration of justice and where privacy considerations legitimately override the important principle of open justice.

In this case the Applicant as trustee applied to the court for assistance under the court’s inherent jurisdiction and/or section 61 of the Trustee Act 1961. The Applicant sought an order that the proceedings be held in private as a major charitable beneficiary had expressed concerns that the publicity associated with the matter might have adverse consequences internally and externally for the charity as there could internally be competition for the allocation of funding and externally donations could drop because of the size of the fund.

The First Deemster ordered that all hearings and the trial be conducted in open court but placed restrictions on references to the identity of the settlor, the beneficiary, the size of the fund and the amounts of the proposed distributions.

The First Deemster considered the wide ranging relief sought by the Applicant and endeavoured to balance the important interest of open justice and the legitimate concerns of a beneficiary in respect of privacy and confidentiality.”

60. In CMI Trust Company (IOM) Limited 2014 MLR 45 (judgment delivered 29 January 2014) Deemster Doyle stated:

the confidential family arrangements under the settlement would have remained entirely private. In such circumstances I do not think (and neither did Bailiff Bailhache in Saffrey) that the needs of open justice in general require a court to identify the settlor, the beneficiaries or the settlement by name and I have not done so.”

61. In AB v CD (30 June 2016) under the heading Protected information order Deemster Doyle stated:

“80. In Delphi Trust Limited 2014 MLR 51 I considered the law as to when it was appropriate for a court to sit in private when dealing with applications in respect of trusts.

81. In CMI Trust Company (IOM) Limited 2014 MLR 45 I stated:

“18. In this matter this morning I have sat in open court to consider the claim. The fundamental principle of open justice required that I do so. However, the practice of this court is also to accord some importance to the confidentiality of private trusts. As was stated by Bailiff Bailhache in Saffrey Champness Trust Corporation [2005] JRCO52 in cases of this kind the privacy of the trust, and the nature of the confidential family arrangements to which the settlement relates would not generally have seen the light of day. But for the mistakes made by CMITC it would not have been necessary to make an application to the court and the confidential family arrangements under the settlement would have remained entirely private. In such circumstances I do not think (and neither did Bailiff Bailhache in Saffrey) that the needs of open justice in general require a court to identify the settlor, the beneficiaries or the settlement by name and I have not done so.”

82. I have heard this claim in public court but made an order designed to protect the confidentiality of the identity of the settlor, the Trustee and the beneficiaries. There was a need to protect the confidentiality of the Trustee in this case as the identification of the Trustee may have led to the identification of the settlor and beneficiaries. This is a case where confidentiality is appropriate and the Claimant understandably wished to keep the confidentiality "ring" as narrow as possible.”

62. In A (judgment 24 January 2017) Deemster Doyle referred to Delphi Trust and AB v CD and was content to continue to sit in private:

“… noting also the legitimate privacy, confidentiality, anonymity and personal safety and security concerns of some of the beneficiaries, I reached the conclusion that it would be appropriate to sit in private and to anonymise the judgment and to make orders restricting access to the recording of the proceedings and the court file.” (paragraph 1).

63. In A Ltd 2013 (1) JLR 305 Commissioner Clyde-Smith sat in private to hear an application for directions in respect of a foundation which he described at paragraph 46 as:

“… a wealth-structuring entity economically resembling the role of a trust, for which confidentiality was important …”

64. In V v T&A [2014] EWHC 3432 (Ch) reporting restrictions were made in respect of minor beneficiaries in proceedings under the English Variation of Trusts Act 1958. See In the matter of the Banayou Trust [2019] JRC 078 and the importance of publishing judgments in trust cases. See also MN v OP [2019] EWCA Civ 679 and whether anonymity should be the norm in applications made under the Variation of Trusts Act 1958.

65. In G Trusts [2017] SC (Bda) 98 Civ (15 November 2017) Chief Justice Kawaley stated:

“11. For the above reasons I had no reticence about tacitly confirming the Confidentiality Order I made at the beginning of the present case when the proceedings reached their conclusion. The present proceedings concern the internal administration of a private trust into which the general public have no right to pry. Persons administering, interested in or settling Bermuda trusts should rest assured that this Court’s firmly established practice of making confidentiality orders in appropriate cases, which is merely designed to enable law-abiding citizens to peaceably enjoy their actual and contingent property rights, has a venerable legal basis. The existing practice will continue to be applied in appropriate cases such as the present.”

66. Chief Justice Smellie in his International Trusts and Trust Litigation Update (a keynote address to the International Wealth Structuring Forum in the Cayman Islands 28-30 January 2018) highlighted the principle of open justice and the debate on the privacy of trust proceedings. The learned Chief Justice referred to Deemster Doyle’s judgment in Delphi Trust Limited 2014 MLR 51 and Chief Justice Kawaley’s judgment in G Trusts [2017] SC (Bda) 98 Civ (15 November 2017) along with a number of other authorities and stated:

“In my view, and I think as these cases show, judges are well aware of the complexity of issues faced by trustees in the modern field of trust administration, not only as regards the need for confidentiality but also increasingly now-a-days, the need for appropriate application of fundamental trust principles, in the context of cross-border claims against trust assets.”

67. Justice Kawaley in The Settlement (Cause No FSD 54 of 2018 Grand Court of the Cayman Islands; reasons delivered 25 July 2018) dealt with a confidentiality order in respect of administration of trust proceedings.

68. See also Privacy, Open Justice and the Turning Tide Peter Sheen and Emilia Piskorz Trusts and Trustees October 2018.

69. Chief Justice Smellie in Project Panther Ltd (Cause No FSD 130 of 2018 Grand Court of Cayman Islands; judgment delivered 15 November 2018) dealt with an application for rectification of a corporate register of shareholders and an application to redact certain information. The learned Chief Justice stated:

“34. Whenever it is called upon to grant orders of this kind protective of the confidentiality of material filed in aid of proceedings, this court must conduct an assessment of the conflicting imperatives of the public rights to open justice and 32

the receipt of information on the one side and the rights to privacy which are to be impacted by disclosure, on the other side.

35. Even while inevitably juxtaposed in that way, these are rights to which the Constitution accords equal recognition and protection.

36. Clear and cogent guidance for the conduct of the assessment was recently provided by this Court, per Kawaley J, in Re a Settlement dated 16 December 2009, Cause FSD 54 of 2018, in written reasons delivered on 25 July 2018. I am content to quote the following passages from those reasons as also explaining the principles to my approach, in the exercise of discretion, to the grant of confidentiality orders in this case. From paras 14 - 16:

“14. In my judgment… the privacy guaranteed under section 9(1) of the Constitution are fully fledged fundamental protections which are entitled to be broadly interpreted and given effect to in their own right. It is fair to assume that some fundamental freedoms have more general importance than others because they underpin the main pillars of democracy. As Smellie CJ noted in Re Sphinx13 (13 [2017] 1 CILR 176) (at para. 10) “the right to freedom of information about all aspects of the democratic process enables members of the public to exercise the right to freedom of expression and participation in good governance”. The fair trial rights including the right to a hearing before an independent and impartial court also forms part of the central underpinnings of the Bill of Rights. However, there is a danger that in placing of too much emphasis on the importance of open justice the countervailing protected rights of privacy will be diminished to an unacceptable degree. The various elements of the Bill of Rights form part of an interlocking system or code and must be construed so far as possible in a consistent manner.

15. I incline to the view that section 7(10) of the Constitution is the most reliable guide as to the basic ground upon which the open justice principle may be limited, taking into account the allied rights to receive information under section 11 of the Constitution and of privacy under section 9, because these grounds are formulated as exceptions to the general rule that civil hearings should be heard in public. Embedded, implicitly, in section 7(10), is an acknowledgement of the fact that a judicial assessment must be made of the conflicting elements of open justice (section 11(1) and privacy rights (section 8(1)). Section 7(10), it bears repeating, provides as follows:

“(10) Nothing in subsection (1) or (9) shall prevent the court from excluding from the proceedings persons other than the parties to them and their legal representatives to such extent as the court –

(a) may be empowered by law to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings… [public morality], the welfare of minors or the protection of commercial confidence or of the lives of persons concerned in the proceedings; …”

(b) [Thus] (t)he basic grounds upon which private hearings may take place are circumstances of necessity or expedience involving the following categories of cases:

(a) where publicity prejudices the public interest;

(b) in interlocutory proceedings;

(d) the welfare of minors;

(e) the protections of commercial confidence;

(f) the protection of the private lives of persons concerned in the proceedings.”

37. The ground which I regarded as being of obvious applicability here was ground (e) – the protection of commercial confidence. I was also satisfied – albeit I should note without the benefit of argument to the contrary such as a person seeking disclosure in the public interest might have advanced – that it would not be in the public interest in the due administration of justice in this case to require the disclosure of the information for which protection is sought because of its commercial sensitivity.

38. Nonetheless, it is in recognition of the public interest in open justice that the material filed in this case, suitably redacted will be available to the public in keeping with the Rules of Court.”

70. Sir Michael Birt Commissioner and Jurats Grime and Sparrow in HSBC Trustee (CI) Limited v Siu Hing Kwong [2018] JRCO51A referred to open justice as “a principle of fundamental importance to the rule of law” (para 16) and considered various authorities including Jersey Evening Post v Al Thani [2002] JLR 542 – M [2012] JRC 127, C [2010] JRC 001, Delphi 16 ITELR 885, G [2017/371] and stated:

“32. In some cases, publication of even an anonymised judgment is not possible if the interests of justice are to be served. For example, in a Beddoe application, the trustee must tell the Court about all the strengths and weaknesses of its position in the proposed litigation. Publication of even an anonymised judgment would inform the other side in the proposed litigation of the weaknesses in the trustee’s case. That would clearly be extremely prejudicial to the trust and would not be in the interests of justice. Another example might be where a trustee seeks directions as to the price for which the main asset of the trust should be sold. Even an anonymised judgment might, depending on the facts, disclose to potential purchasers information about what price the trustee might be willing to sell for. Again, in such circumstances, the Court is likely not to publish any judgment at all.

33. However, subject to exceptions such as these, this Court’s policy is clear, namely that although direction applications will normally be heard in private, any reasoned judgment should be published subject to anonymisation so as to protect the privacy of those involved and to ensure that full disclosure to the

Court is given by the parties as described in the passages cited above from In the matter of M and Other Trusts and The C Trust.

34. In our judgment, this policy strikes the appropriate balance between, on the one hand, the privacy rights of the beneficiaries under Article 8 European Convention of Human Rights (“ECHR”) (respect for private life) and the interest of justice as summarised at paras 24 and 25 above and, on the other, the importance of public justice and the Article 10 ECHR rights in respect of freedom of expression.”

The learned Commissioner (and part time Justice of Appeal in Cayman) also dealt with the situation where the choice is between not publishing a judgment at all or publishing the judgment with anonymisation (para 40) and concluded that any decision must be fact specific (para 48). In that case the court concluded (at para 68): “… Given the level of detail already in the public domain and the attitude of the other members of the family, we consider that, in the particular circumstances of this case, the balance comes firmly down in favour of publication of the judgment rather than non-publication.”

71. In Girls’ Day School Trust v GDST Pension Trustees [2016] EWHC 1254 (Ch) Norris J (at paragraph 50) stated that in future cases for rectification of mistake in pension scheme dealt with without a hearing it is likely that the court will insist that after judgment all evidence will be open to inspection.

72. See also Saga Group v Paul [2016] EWHC 2344 (Ch) especially at paragraphs 23 and 24, but what right does court have to order disclosure of privileged documents such as legal opinions? Consider further.

73. See Guardian News and Media Ltd v AB CD (decision of English Court of Appeal (Criminal Division) delivered on 12 June 2014). The following are extracts from the decision delivered by Gross L J:

“2. … The Rule of Law is a priceless asset of our country and a foundation of our Constitution. One aspect of the Rule of Law – both a hallmark and a safeguard - is open justice, which includes criminal trials being held in public and the publication of the names of defendants. Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system; exceptions are rare and must be justified on the facts. Any such exceptions must be necessary and proportionate. No more than the minimum departure from open justice will be countenanced.

3. These principles as to open justice were essentially not in dispute before us. However, it was also common ground that there are exceptions. For example, as rightly accepted by Mr. Hudson (for the media), the Court has a common law power to hear a trial (or part of a trial) in private (“in camera”). The Court does not require a party to destroy the right it is seeking to assert or protect as the price of its vindication. We detect no difference of substance in this connection between the common law and Art. 6 of the European Convention of Human Rights (“ECHR”).

4. National security is itself a national interest of the first importance and the raison d' etre of the Security and Intelligence Agencies (“the Agencies”), who themselves operate within a framework of law and oversight. For the Agencies to operate effectively, at least much of their work is secret and must remain so as a matter of necessity. From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.

5. As is well-established in our law, these tensions are resolved along the following lines:

i) Considerations of national security will not by themselves justify a departure from the principle of open justice.

ii) Open justice must, however, give way to the yet more fundamental principle that the paramount object of the Court is to do justice; accordingly, where there is a serious possibility that an insistence on open justice in the national security context would frustrate the administration of justice, for example, by deterring the Crown from prosecuting a case where it otherwise should do so, a departure from open justice may be justified.

iii) The question of whether to give effect to a Ministerial Certificate (asserting, for instance, the need for privacy) such as those relied upon by the Crown here is ultimately for the Court, not a Minister. However, in the field of national security, a Court will not lightly depart from the assessment made by a Minister …”

74. See R(Wang Yam) v Central Criminal Court [2015] UKSC 76 in respect of the discretion to refuse to permit disclosure of material deployed in camera. Refusal to permit disclosure to the European Court of Human Rights did not constitute a breach of international law, and even if it did English courts would be obliged automatically to give effect to such obligation. The starting point when considering a general discretionary common law power is that domestic and international law considerations are separate. The decision-maker may take international obligations into account but is not bound to do so.

75. See Chief Justice of Canada Beverley McLachlin’s lecture Openness and the Rule of Law 8 January 2014:

“The open court principle is a venerable principle, deeply rooted in western consciousness. And for good reason.”

76. “Sweden has a centuries-old tradition of openness in relation to public documents” (paragraph 11 R v McGeough [2015] UKSC 62).

77. Geoffrey Ma, the Chief Justice of Hong Kong, in his comments at the Ceremonial Opening of the Legal Year 2016 on 11 January 2016 stated:

“It is important that the works of the courts and the way cases are handled by judges is open for all to see. Openness is an objective indicator to test the effectiveness and fairness of our legal system; if you like, it is a measure of the rule of law operating in practice. Transparency in the judicial process becomes 36

critical in our legal system, and this takes the form of almost all court proceedings being open to the public or in the publication of almost all of the written judgments of the courts. I say “almost all” to exclude those few cases where the subject matter is of such sensitivity that it would not be in the public interest to make them public.”

78. Deemster Corlett in Gubay v Willers (3 December 2015) dealt with an application for a hearing to be held in private. The Deemster was sympathetic to issues of life expectancy not being reported. Deemster Corlett stated:

“3. If members of the press do attend the hearing I shall have to give a direction about the way in which the hearing is reported. I very much doubt that will actually be necessary, but if it is necessary I will address it on the day.

4. I have also taken into account in particular the helpful judgment of the Court of Appeal dated 12th April 2011 in the case of Ambrosiadou v Coward [2011] EWCA Civ 409 and in particular paragraphs 51 and 54 of that judgment. I will not repeat them now, but paragraph 51 is particularly useful in setting out the basis upon which the court can deal with private information. It says for example that if for some reason there needed to be revelation of private information, counsel could ask the court to sit in private temporarily, and that if counsel had accidentally revealed information orally, the court can make an appropriate order preventing its reporting.

5. In other words, there are ways round this matter without making the hearing one in private. It is important that the principle of hearings not being heard behind closed doors be respected, and I do not believe that Rule 9.2 of our Rules of Court specifically deals with this issue at all. There are many cases in which medical information does of necessity have to come out in court, but there are ways of dealing with particularly confidential and troubling matters and they can be dealt with as and when they arise in an appropriate way in my view.

6. I also take into account that there has already been a degree of revelation of Mr Gubay’s medical condition in previous judgments, both in this court and the Staff of Government Division, and the matters have been dealt with in open court without there being any issue raised that those proceedings should be heard in private.”

79. In Re C (A Child) (Private Judgment: Publication) [2016] EWCA Civ 798 concerned, according to the Times Law Report 10 November 2016, a holding by the English Court of Appeal on 29 July 2016 that a court had power to publish a judgment given during or at the end of proceedings in private under its inherent jurisdiction. The English Court of appeal gave guidance in respect of cases where there may be a concern that future criminal proceedings may be prejudiced. At paragraph 22 the Master of the Rolls stated:

“The judge rightly recognised … that open justice is at the heart of our system of justice and vital to the rule of law. As she said, it promotes the rule of law by letting in the light and allowing the public to scrutinise the workings of the law …”

80. R v R and Times Newspapers Ltd [2017] EWCA Civ 1588 referred to the principal judgment given by Gloster LJ in Norman v Norman [2017] EWCA Civ 49. Gloster LJ in Norman concluded that the principles and approach to anonymisation which are applicable to the English Court of Appeal in general apply in like manner to cases relating to matrimonial financial provision and it would be very rare for the court to order anonymisation in such a case. Whilst the balance under Article 8 and the right to freedom of expression under Article 10 still falls to be struck, on appeal the principles of open justice and its importance, together with the normal principles in favour of openness, will only be curtailed in exceptional circumstances.

81. In a valuable lecture at a Jersey Family Law Conference on 5 October 2017 Deemster Corlett stated:

“Publicity – Clients may be anxious about publicity. The Manx law on this is untested. Rules of Court provide that financial claims are held “in Chambers”. Is there a right to exclude the public and/or the press? Anonymisation is a particular issue in small jurisdictions. We do our best to produce anonymised judgments on interesting points of law but it can present overwhelming difficulties in trying to give a coherent summary of the important factual background without which the legal principles set out can be difficult to understand.”

82. See Mostyn J in W v M [2012] EWHC 1679 (Fam) at paragraph 50 in respect of reporting restrictions in family financial remedy proceedings in England and Wales.

83. See in detail Norman v Norman [2017] EWCA Civ 49 which raised important issues relating to the making of anonymity orders in the English Court of Appeal. At paragraph 34 Gloster LJ (the Vice President of the Court of Appeal, Civil Division) stated:

“I observe at this stage that there has been no formal paper application by the wife for anonymity directions in relation to these proceedings. That is an error on the part of her legal representatives. This court needs to have a properly formulated paper application, rather than some vague oral application or one that is made by letter. In future (and subject to the exception below), this court will expect that any application for this court to hear an appeal, or an application for permission to appeal, relating to financial relief proceedings either in private, or subject to reporting restrictions which anonymise the parties or prevent publication of information relating to the application (“an anonymity application”), will be the subject of a formal court application, setting out the grounds and supported by necessary evidence, upon which the anonymity application is based. Notice of the intended anonymity application, a copy of the Notice of Appeal and any evidence in support of the anonymity application should also be given by the applicant to media organisations by service on the Press Association’s Copy Direct Service. The exception to which I refer is as follows: in a financial remedy appeal, where all that is sought is to anonymise the names and dates of birth of minor children or, for example, to restrict publication of information relating to where they attend school, or about their medical condition, and the parties agree, a formal application may not be necessary. However, even in such a case, a letter should be sent to the court indicating that such an application will be made and stating that the court may wish to consider whether the press should be informed.” 38

84. See also Lady Hale’s Sir Nicholas Wall Memorial Lecture 2018 Openness and Privacy in Family Proceedings (10 May 2018) and Challenges in the Justice System and the Contribution of Empirical Research (14 May 2018) and her informed comments on “the transparency agenda in the family courts” (page 5); “… open justice is a cardinal principle of our legal system …” (page 8); “… open justice is there, not only to police the courts and the professionals who work in them, to ensure that they are doing their jobs properly but also to reassure the public that they are doing so. Thus the corollary of open justice is the freedom to report what goes on.” Consider also Lady Hale’s comments on “jigsaw identification” in the context of anonymisation of judgments to prevent the identification of children. On a general note Lady Hale (at page 15) gave the important reminder to judges, academics and practitioners that:

“what the current law is and what the law ought to be are quite separate matters.”

85. See Asia Television Ltd v Communications Authority [2013] HKCA 104 Chief Judge Cheung dealing with an application that an appeal be heard in private. At paragraph 19 the learned judge reminded the court of the basic principle that justice should not only be done but should manifestly and undoubtedly be seen to be done. The Chief Judge emphasised that:

“Open administration of justice is a fundamental principle of common law … It is of great importance from the perspective of administration of justice for a number of reasons. The public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely …”

The learned Chief Judge at paragraph 23 referred to case law firmly establishing that the following considerations or matters do not by themselves justify any restriction on open administration of justice:

(1) publicity of litigation leading to embarrassment and inconvenience;

(2) publicity leading to economic damage, even very serious economic damage;

(3) professional embarrassment and possible damage to professional reputation;

(4) the parties’ agreement that the proceedings be held in private;

(5) the mere fact that the subject proceedings which gave rise to a judicial review application were held in private.

The learned judge referred to the balancing exercise between various rights and at paragraph 59 added:

“In the balancing exercise, the court must proceed on the basis that Hong Kong is an open and free society. It is the professional duty of our media and journalists to report court proceedings in a responsible and unbiased manner. Transparency of information is the best safeguard against inaccurate quotations or distortions of what happens in court proceedings …”

86. These comments in respect of the media are echoed by the English Master of the Rolls in C (A Child) [2016] EWCA Civ 798 at paragraph 29:

“… broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice …”

87. See James Spigelman Justice “Seen to be done” “Seem to be done” (10 March 2016). See also English Court of Appeal in Guardian News and Media Ltd (No 2) (9 February 2016) reported in the Times on 30 March 2016 in respect of a national security case and the necessity test for hearing trials in private.

88. See also Lord Neuberger’s lecture at the Northern Ireland Judicial Studies Board 27 February 2014 on Justice and Security (available at www.supremecourt.uk). At paragraph 14 Lord Neuberger states:

“The need for justice to be conducted openly is a fundamental.”

89. Lord Neuberger in a keynote address Technology and the Law (21 April 2016) stated:

“6. The principle of open justice is a topic on which judges wax lyrical - and rightly so. If it is to command public respect and confidence, justice must be seen to be done, and if trials and judicial decisions were not routinely performed in public, suspicions would soon arise that judges were developing bad habits, and such is human nature that there is a real risk that we would get into bad habits. So, save to the extent that it is necessary to have secrecy (protection of children, national security, trade secrets for example), the public must have the right to see and hear what happens in court. So, too, we must allow journalists to attend hearings and be free to report what happens in court. So far so uncontroversial.

7. But technology gives rise to the possibility of a significant development, which may seem to many people, at least at first sight, to be an obviously logical step, but which, in the eyes of many other people, is more controversial. If the public has the right to see, and to be told about, what goes on in the courts, why should we not allow cameras into the courts, so that the public can watch court hearings as they happen streamed into their living rooms or offices? It could be said with some force that this is merely the techno-logical extension of the traditional public right to come into court physically. I see no satisfactory answer to this argument so far as hearings without witnesses and juries are concerned.”

90. Lord Hodge The involvement of the public in the criminal process in the United Kingdom (24 October 2018) at page 1:

“It is an important principle in the jurisdiction of the United Kingdom that there should be open justice. This means that the courts, when hearing evidence or legal argument, are open to members of the public. Citizens can walk into the court and see and listen to the legal proceedings. Journalists also may do so and can report to the public on what has occurred in a trial.”

91. See R v MacKinlay (UKSC 23 May 2018) reporting restrictions in respect of pre-trial proceedings in criminal matters.

92. See Maharaj v Petroleum Company of Trinidad and Tobago Ltd [2019] UKCP 21 judicial review of determination of freedom of information request.

93. In Deemster Doyle’s lecture on The rule of law – judicial independence and accountability at the Oxford Union on 6 July 2016 (available at www.courts.im under the hearing Lectures) at page 11 the following is stated:

“One of the key foundation stones to accountability is that judges hear cases in open court under the watchful eyes of members of the public and the media.

There are some exceptions to hearings in open court, for example to protect children, but these are rare. See also my judgments in Delphi 2014 MLR 51 and CMI Trust Company (IOM) Limited 2014 MLR 45 in respect of open justice and private trust matters.

Judicial decisions, with reasons, being delivered in open court, and judgments being publicly available, are in my opinion the two keys to accountability.

In the Isle of Man all court proceedings are recorded and transcripts can be obtained. The proceedings and the decisions of the judges can be scrutinised by the parties, their advisers, lawyers, academics, other judges, members of the public and others. That intense scrutiny helps to hold judges to account. Open justice means that judges are some of the most scrutinised individuals in the world.

Jeremy Bentham captured the depth of the concept when he said:

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.”

On 21 April 2018, Lord Neuberger in a keynote address on Technology and the Law emphasised (at paragraph 6) the importance of open justice:

“… save to the extent that it is necessary to have secrecy (protection of children, national security, trade secrets for example), the public must have the right to see and hear what happens in court. So, too, we must allow journalists to attend hearings and be free to report what happens in court …”

Earlier, on 3 March 2018, Lord Neuberger captured the essence and importance of the idea at paragraph 20 of his lecture:

“Open justice is a fundamental ingredient of the rule of law. Unless what goes on in court can be seen by the public, by those in government, and by the media, there is a real risk that public confidence in the courts will start to wane, and, indeed, a real risk that we Judges will gradually start to get sloppy in our ways. Sunlight has been famously said to be the best disinfectant, and without public access to the courts, there is a real danger that justice is neither done nor seen to be done.”

However, sunlight in the form of social media is not always so helpful. I referred to the use of social media in my last lecture. I am all in favour of modern technology, but we must all guard against social media being abused in attempts to irresponsibly and improperly influence the result in legal proceedings.”

[Doyle August 2019]