UT (Tax & Chancery) UT-2024-000010 - [2024] UKUT 00416 (TCC)

The Tribunal is highly conscious of and sensitive to the nature of the issues raised by the Applicant in relation to her mental health. The Tribunal accepts that the Applicant has in the past and continues to this day to suffer from some level of mental illness, being anxiety and depression. Nonetheless, while the Tribunal expresses its sympathy for the Applicant experiencing depression or anxiety and symptoms of “stress and low mood”, these do not overcome the presumption in favour of publication of the Decision Notices and inclusion of the reference on the register. This is for the reasons set out below.

The Tribunal is required to decide whether the starting point of the principle of open justice and the presumption of publication of Decision Notices enshrined in section 391 FSMA should apply. The primary issue for the Tribunal to decide is whether publication of the Decision Notices and the details of the reference on the register would cause the Applicant a significant likelihood of unfairness. This would include by causing her a significant likelihood or a substantial risk of psychological harm or damage such as significant harm to her mental or even physical health. A “possibility” of such damage or harm is not enough; there must be a “significant likelihood” of such damage or harm occurring.

Likewise, there must be a causal connection or link between the publication and the risk of harm – it is not enough that the investigation conducted by the Authority or the proceedings or hearing of the reference in themselves are demonstrated to have caused or be causing psychological or physical harm or damage to the Applicant (and it is sadly common that a certain level of non-clinical anxiety may be experienced by any litigant or witness connected to any litigation).

The burden is on the Applicant in the Privacy Applications to show a real need for privacy by demonstrating unfairness that may be caused by publication of the relevant information concerning her case (publication of the Decision Notices and inclusion of the reference on the register). To discharge this burden, the Applicant must produce “cogent evidence of how unfairness may arise and how she could suffer a disproportionate level of damage” if publication were not prohibited. The need for “cogent” evidence is an important threshold that must be met before the presumption in favour of open justice, underpinned in this context by statute, can be reversed.