PT-2025-000706 - [2025] EWHC 2928 (Ch)

Open justice is a fundamental principle of common law. Any derogation from the principle of open justice should be the minimum strictly necessary in the interests of justice and for the proper administration of justice.

Applications for part or all of a hearing to take place in private, or for anonymity and/or confidentiality in respect of some or all of the court file must be supported by evidence. Applications for anonymity and/or to limit access to the court file are often made in the same application but may be made as separate applications. In all cases the evidence in support must justify the derogation from the principle of open justice. Such applications are often made before issue or at the point of issue although they can be made at any stage including after judgment. Further guidance can be found in CPR 39.2, Chapter 15 (Urgent Applications), Chapter 25 (Trusts) and Chapter 26 (Pensions) of this Guide.

As a general rule, hearings take place in public. The circumstances in which a hearing must be held in private are set out in CPR 39.2(3).

Even if the parties are in agreement, the court will have to be satisfied that one or more of the matters set out in CPR 39.2 (3) (a) to (g)) applies and that it is necessary to hold part or all of the hearing in private to secure the proper administration of justice. An order that a hearing to be held in private will rarely be made without a hearing. It will usually be considered at the commencement of the hearing in respect of which privacy is sought. However if, unusually, an order is made on paper or an interim order has been made, even if not contentious between the parties, it will be considered afresh at the start of the hearing. Any order for privacy once made shall be published on the judiciary website unless the court orders otherwise (see CPR 39.2(5) and the Practice Guidance: Publication of privacy and anonymity orders. Even if part or all of a hearing takes place in private the court may consider it appropriate to publish any judgment, if necessary in redacted form.

In an appropriate case the court may order that the identity of a party or witness is not disclosed where this is necessary to secure the proper administration of justice and in order to protect the interests of that party or witness (CPR 39.2(4)). It most commonly arises where additional safeguards may be needed to protect the identity of children or protected parties or where an application for a freezing injunction or search and imaging order is issued. Further guidance on anonymity applications can be found at paragraphs 15.66 to 15.68 (Urgent Applications) and paragraphs 25.39 to 25.45 (Trusts). In some circumstances it may be considered appropriate to issue an application to seek permission to anonymise some or all of the identities of the parties to a claim prior to issue. In such a case the applicant should have regard to the guidance in paragraph 13.39. In a simple case the judge may be willing to deal with such an application on paper.

CPR 5.4B, 5.4C and 5.4D set out the rules on the provision of documents from the court file (upon payment of the prescribed fee) to parties and non-parties with and without permission of the court. Where permission is required the party or non-party should apply using form N244. Although the application can be made without notice the court may direct that notice should be given to any person who may be affected by the decision.

However, CPR 5.4C(4) enables the court to restrict who can access documents and what documents (individually or as classes) may be accessed by non-parties. In every case the court will need to consider the balance between the importance of open justice, the risk of harm and the legitimate interests of others.

Where the parties consider that a question of confidentiality or anonymity arises, they should, when they issue proceedings, include a covering letter together with an application for confidentiality or anonymity if sought, requesting that the assigned Master consider the application before any other step is taken. Further guidance on applications relation to privacy, anonymity and confidentiality can be found paragraphs 3.32 to 3.38 and paragraphs 15.66 to 15.68.

In some circumstances it may be considered appropriate to issue an application to seek permission to anonymise s one or all of the identities of the parties and/or for The Business and Property Courts of England & Wales Chancery Guide 2022 confidentiality in relation to some of the documents that would be on the court file before the claim is issued.

If the parties wish to apply for confidentiality or anonymity before the claim is issued, the application together with any covering letter requesting that the assigned Master consider the application on paper should be issued on CE-File as a pre-issue application and marked confidential. A note should be added to the Comment Box on CE-File so that the nature of the application is clear to the court staff. In an appropriately sensitive case in may be considered appropriate for the application and covering letter to be emailed to the Master’s clerk to seek the order before even the application for anonymity and confidentiality is issued on CE-File. Such a course of action will be exceptional. However, as set out in Chapter 3 and Chapter 15 any derogation from the principles of open justice will be the minimum necessary.

If an order is made, when the claim is subsequently issued, the claimant must write to the court requesting that the claim be assigned to the same Master who dealt with the confidentiality or anonymity application and case managed with the application (the application and claim form will otherwise, generally, have been given separate case numbers).

The covering letter should propose case management directions so that the claim (whether issued or not) can be progressed following disposal of the confidentiality or anonymity application.

It will be unusual for a confidentiality or anonymity order to made without a hearing. The Master must be satisfied that it is necessary and in the interests of justice for an order to be made. Any order made will be the minimum necessary to achieve that purpose. Any order exceptionally made on the papers will be reviewed at the first directions hearing of the claim.

The orders may include anonymising some or all of the parties, listing the first hearing in private, listing the hearing in public but with a reporting restrictions order, managing how the parties and key facts are referred to in court. The court may order that parts of the court file, that might otherwise be available, will only be released to non-parties upon written application on notice and a hearing is likely to be listed. A Variation of Trusts Confidentiality Order is at Form CH43