AC-2025-LON-000559 - [2025] EWHC 1984 (Admin)

The IPT recorded the parties’ submissions in paragraphs 4-7 and 8-12.

The Claimant’s position was that the IPT should not revisit its previous orders, particularly when no-one was asking it to do so. The justifications for the orders continued, as the public judgments showed that the Claimants’ property had been searched. Those actions were unlawful, but had caused continuing adverse effects on the Claimants’ business. As a result, the IPT, at the Claimants’ request, had asked for privacy for Decision 1. If that were revisited, there was a risk that the consequences which the privacy order was designed to avert would materialise. The answer to the Judge’s questions should be that the judgments and rulings of the IPT which were delivered in private could not be referred to in public, and the same applied to the documents in the Lists.

HMRC submitted that in the claim the Claimants had themselves relied on the earlier proceedings. HMRC had sought to rebut their allegations by relying on Decision 1, which found that HMRC had ‘conducted a proper and compliant exercise to trace and quarantine any produce of unlawful authorisations’. HMRC relied on the principle of open justice. There could be no risk to the Claimants’ privacy from references to judgments or decisions which were already public. There was no general prohibition on the use of documents in the claim which had been used in the IPT proceedings. The fact that the documents had been used in private proceedings did not decide whether or not they could be referred to in public in the claim. Whether they could or should be would be for the Administrative Court to decide. Similar reasoning applied to documents which were referred to during the private hearing in the IPT. Cases of doubt should be left to the Administrative Court to decide.

The IPT emphasised three points.

The IPT also emphasised the importance of the principle of open justice. A facet of that principle is that courts sit in public. Anything which is said in a public hearing may be reported, unless a reporting restriction has been imposed. Reporting restrictions work like injunctions contra mundum. Anyone who breaches them is guilty of contempt of court. It is therefore important that the terms of such restrictions are clear. If material is subject to a restriction imposed by one court, another court in separate proceedings will try to give effect to, rather than to undermine, that restriction.

An order or direction that a court or tribunal sits in private ‘governs who may attend a hearing’. It excludes the press and the public from a hearing. It follows that the press cannot report on the hearing, because they were not present at it. But such an order does not itself prohibit reporting of what was discussed at the hearing. A separate reporting restriction is necessary (AF Noonan Limited v Bournemouth and Boscombe ACFC Limited [2007] EWCA Civ 848; 1 WLR 2616) (‘Noonan’). If the press find out about something which was discussed at a private hearing, they are free to report it unless a separate restriction is imposed. There might be an express or implied obligation of confidence, which is a different type of restriction. A breach of that would not be punishable in the same way as a contempt of court.

The IPT had decided that there was a compelling reason for holding the hearing which led to Decision 1 in private. That of itself did not impose a reporting restriction on the fact of the hearing or on the fact that Decision 1 had been made. The IPT’s decision that Decision 1 should not be published would ‘no doubt be undermined if the Administrative Court were to decide to publish it…but no-one appears to have suggested publication in that form. Subject to that, no order or direction of [the IPT] prevents the disclosure of the content of’ the Decision.

That was not to say that the considerations which persuaded the IPT to have a private hearing and to issue a private judgment were irrelevant to the extent if any of a private hearing in the Administrative Court or the contents of any public judgment. As the IPT said: ‘In our judgment, however, that is a matter for the Administrative Court to determine, evaluating and balancing the damage which it is said that disclosure would bring against the public interest in open justice in the particular context of the judicial review proceedings which the [Claimants] have decided to bring’ (paragraph 21).

The IPT’s answer to question A (see paragraph 12, above) was that in its ‘view’, it was for the Administrative Court to decide ‘whether and to what extent the existence and/or content of the rulings referred to in question A can be referred to in a public hearing or public judgment’.

The IPT noted that in Decision 3 the President of the IPT had given HMRC permission to rely on and to cite Decision 1 (which had been given in private) and had given the Claimants permission to cite other documents disclosed in the IPT proceedings. The IPT had done so on ‘the agreed footing’ that the proceedings in the Administrative Court ‘were currently being held in private’ (paragraph 1 of Decision 3). The President’s view was that the Administrative Court should have access to all the documents. He had added (in paragraph 8 of Decision 3) that it would for the Administrative Court to decide to what extent it was necessary to refer to the documents in order to deal with the case fairly, and that the Administrative Court was better placed to make that assessment than the IPT. The President had ‘no doubt that the Administrative Court will ensure that appropriate arrangements are made for preservation of confidentiality where that is required’. That was consistent with the IPT’s approach to answering question A. The imposition of ‘confidentiality protections’ in respect of the documents which were the subject of Decision 3 ‘is a matter for the Administrative Court’. There was no express or implied assumption that the proceedings in the Administrative Court would ‘always remain in private’. Everyone understood, not that the proceedings in the Administrative Court would always be in private, but that that was the position which was ‘current’ then.

The IPT considered that the Administrative Court was ‘better placed than we are to weigh up the matters relied upon in support of the claim for confidentiality against the public interest in open justice…not least because it will have a better understanding of the issues in those proceedings, the extent to which the [Claimants] have put the contents of the documents in issue by bringing the claim and the extent to which any relevant parts of the documents are already substantially in the public domain as a result of other proceedings’.

It followed that the answer to questions B and C (see paragraph 12, above) was that ‘it is a matter for the Administrative Court to determine whether and if so to what extent the documents or their contents can be referred to in a public hearing or public judgment’.

The IPT prepared a public version of the Decision and put it on the IPT website. A note at the foot of title page says, ‘This is public version of a judgment handed down in private. It has been modified to maintain the anonymity of the Complainants’. In this version of the Decision, the Claimants are anonymised. Very little has been redacted or modified, apart from the references to the earlier litigation from which the Claimants might be identified.