Claim No: IP-2021-000080 - [2024] EWHC 396 (IPEC)

At the outset of the hearing the Claimants applied for an order under CPR31.22 (2) covering documents said to be subject to the without prejudice rule. Having heard brief submissions, the order applied for was made.

The Claimants submitted that the part of the hearing dealing with without prejudice materials should be in private to preserve the confidentiality of those documents pending the outcome. They relied on the judgment of HHJ Hodge QC, sitting as a judge of the Chancery Division in Holyoake v Candy [2016] EWHC 2119 (Ch), at [12]-[14] (Holyoake),a case dealing with materials subject to the without prejudice rule.HHJ Hodge set out the public interest considerations that require hearings to be in public but also noted that where the object of the hearing would be defeated by holding it in public, an order under CPR 39.2(3)(a) is necessary.

Both advocates submitted that the portions of the hearing dealing with without prejudice materials should be heard in private.

Having considered the parties’ submissions and given that HHJ Hacon had directed that the without prejudice material should be dealt with by another judge, I made an order under CPR 39.2(3)(a) that the portion of the hearing dealing with the without prejudice material should be held in private. The remainder of the hearing relating to expert evidence and to reply evidence was held in public.