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The Privacy Application
The Privacy Application
Given that we have struck out the appeal the question of whether the hearing of the appeal should be in private and whether any decision on the appeal should be anonymised does not arise. However, the Privacy Application included an application to anonymise this decision so as to remove reference to Circleplane, Counsel and the Company and any other detail which would allow Counsel to be identified. HMRC are neutral on the Privacy Application.
We have jurisdiction to make such a direction pursuant to Rule 14(1). However, we are not satisfied that we should do so.
The starting point is the principle of open justice which was recently considered by this Tribunal in HM Revenue & Customs v Dettori [2024] UKUT 00364 (TCC). The Upper Tribunal in that case (Miles J and Judge Thomas Scott) applied the principles set out by Nicklin J at [118]-[120] of Farley v Paymaster Limited (1836) t/a Equiniti [2024] EWHC 3883:
The default position, under the CPR, is therefore that the name and address of a party to civil litigation is required to be publicly available. These requirements are an important dimension of open justice and transparency. The Court has the power to permit derogation from this default position under CPR PD 16 §2.3 and CPR 39.2(4). As these are derogations from the principles of open justice, the following principles apply (drawn from Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003 (“the Practice Guidance”) [9]-[13] and [16]):
Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are, public: see Article 6.1 of the Convention, CPR 39.2 and Scott -v- Scott [1913] AC 417.
Derogations from this 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: R -v- Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227, 235; Donald -v- Ntuli [2011] 1 WLR 294 [52]–[53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.
The grant of derogations is not a question of discretion. It is a matter of obligation, and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M -v- W [2010] EWHC 2457 (QB) [34].
There is no general exception to open justice where privacy or confidentiality is in issue.
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: Scott -v Scott [1913] AC 417, 438–439, 463, 477; Lord Browne of Madingley -v- Associated Newspapers Ltd [2008] QB 103 [2]-[3]; Secretary of State for the Home Department -v- AP (No.2) [2010] 1 WLR 1652 [7]; Gray -v- W [2010] EWHC 2367 (QB) at [6]-[8]; and JIH -v- News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645 [21].
When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication of article 8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8 Convention right is entitled. The proper approach is set out in JIH [21].
Derogations from the principle of open justice cannot be granted by consent of the parties. Such orders affect the Article 10 Convention rights of the public at large. Parties cannot waive or give up the rights of the public.
Anonymity orders are usually justified on one of two bases: maintenance of the administration of justice and harm to other legitimate interests. The first category of case is where, without the relevant order being made, the administration of justice would be frustrated. Examples of this type of justification for derogations from open justice would include cases involving trade secrets or other confidential information. In such cases, if no derogations from open justice were granted, the proceedings themselves would destroy that which the claimant was seeking to protect, thereby frustrating the administration of justice: Lupu -v- Rakoff [2020] EMLR 6 [28]-[30]:
“Restrictions on open justice to protect the legitimate interests of others raise more difficult issues. The starting point is the recognition that open justice (and probably of greater practical significance, the privilege that attaches to media reports of proceedings in open court) will frequently lead to some interference with the legitimate interests of parties and witnesses. Media reports of proceedings in open court can have an adverse impact on the rights and interests of others, but, ordinarily, the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public’: Khuja -v- Times Newspapers Ltd [2019] AC 161 [34(2)] per Lord Sumption.”
Consistent with the requirement to establish the necessity for any derogation from open justice with convincing evidence, the Court will scrutinise with care any application that the Court should withhold the name of a party or other details about the claim (including the party’s address) from the public. Mere assertion that a party may suffer some harm is unlikely to discharge the burden to justify the order.
Circleplane, Counsel and the Company have not satisfied us that there should be a derogation from the general principle of open justice in this case. No evidence has been filed to explain the need for a derogation and no attempt has been made to identify any “exceptional circumstances” which might justify a derogation. Reliance has been placed solely on email communications in January 2018 in which Counsel raises complaints against members of Chambers. That does not begin to satisfy the evidential requirement.
The focus of the Privacy Application is on the alleged need for privacy owing to the fact that “evidencing the dispute” and the Judge’s knowledge of the dispute would require reference to sensitive information. This judgment is not concerned with the substantive appeal and does not involve any “public airing” of the substance of the dispute.
In any event, we can see no reason why the fact of a dispute between members of a set of chambers, the identity of that chambers and the identity of the individuals in dispute are matters which should fall within the derogation. No evidence has been filed as to any harm that may be caused to Counsel or the members of Chambers by reason of their being identified. Indeed Chambers was given an opportunity to make representations in relation to the Privacy Application as set out above. It did not seek to support the Privacy Application.
It has not been suggested that reference to the existence of a dispute would in itself involve a reference to confidential or otherwise sensitive information. As Nicklin J said at [120] of Farley: “mere assertion that a party may suffer some harm is unlikely to discharge the burden to justify the order”.
We also note that there is no suggestion that the application for recusal to the Judge was heard in private or that there was any application that the Recusal Decision should not be published or should be anonymised. We do not read anything in to the fact that the Recusal Decision was not in fact published.
Dettori was concerned with the well-known jockey Frankie Dettori. The application for anonymity in that case was on the basis that an application for privacy should not be what causes privacy to be lost where the taxpayer had withdrawn the underlying appeal. In holding that the general principles outlined above should apply, the Upper Tribunal referred at [18] to the principles applied in tax cases by Henderson J in HMRC v Banerjee [2009] EWHC 1229 (Ch) and in its previous decision in Dettori at [2024] UKUT 12 (TCC).
Mr Eissa submitted that the decision in Dettori is distinguishable due to the emphasis in that case on the wider public interest in even the most mundane tax disputes. He contended that the present case was a private matter relating to Counsel, who was a non-party and so the same considerations do not apply. His case appeared to be that there is “nothing to be gained from naming” Counsel and that “there is no disadvantage to the reader [of our decision] in not knowing his identity”. This does not begin to satisfy the test for a derogation from the default position of open justice. The emails relied on by Mr Eissa do not justify the claim to privacy, although we accept that there are sensitive matters in the emails which we do not need to identify. We hereby order pursuant to Rule 14(1) that the emails shall not be disclosed to any non-party. In our view, that is sufficient to protect the rights of Counsel, the Company and Chambers.
Mr Eissa also relied on rights pursuant to Article 8 of the Human Rights Act 1998 which were considered by the Upper Tribunal in Dettori at [38]-[39]:
The position where an applicant for anonymity seeks to rely on their Article 8 rights is helpfully summarised in R (Marandi) v Westminster Magistrates' Court [2023] EWHC 587 (Admin) at [44]. At [44 (4)-(6)], Warby LJ stated as follows:
The threshold question is whether the measure in question - here, allowing the disclosure of the claimant's name and consequent publicity - would amount to an interference with the claimant's right to respect for his private and family life. This requires proof that the effects would attain a "certain level of seriousness": ZXC (SC) [55], Javadov [39]. It was the very essence of the claimant's case - as to which the judge was in no doubt - that the reputational impact of disclosure would amount to a very serious interference with his Convention rights. In my view it is clear that the judge accepted throughout that the threshold test was satisfied. His reasoning cannot be understood in any other way.
The next stage is the balancing exercise. Both the judge's decisions expressly turned on whether it was "necessary and proportionate" to grant anonymity. That language clearly reflects a Convention analysis and the balancing process which the judge was required to undertake. The question implicit in the judge's reasoning process is whether the consequences of disclosure would be so serious an interference with the claimant's rights that it was necessary and proportionate to interfere with the ordinary rule of open justice. It is clear enough, in my view, that he was engaging in a process of evaluating the claimant's case against the weighty imperatives of open justice.
It is in that context that the judge rightly addressed the question of whether the claimant had adduced "clear and cogent evidence". He was considering whether it had been shown that the balance fell in favour of anonymity. The cases all show that this question is not to be answered on the basis of "rival generalities" but instead by a close examination of the weight to be given to the specific rights that are at stake on the facts of the case. That is why "clear and cogent evidence" is needed. This requirement reflects both the older common law authorities and the more modern cases. In Scott v Scott [1913] AC 417 at p438 Viscount Haldane held that the court had no power to depart from open justice "unless it be strictly necessary"; the applicant "must make out his case strictly, and bring it up to the standard which the underlying principle requires". Rai (CA) is authority that the same is true of a case that relies on Article 8. The Practice Guidance is to the same effect and cites many modern authorities in support of that proposition. These include JIH v News Group Newspapers Ltd [2011] EWCA Civ 42; [2011] 1 WLR 1645 where, in an often-cited passage, Lord Neuberger of Abbotsbury MR said at [22]:
"Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule ..."
It is clear that the requirements summarised in Marandi have not been satisfied in relation to the Anonymity Application. Indeed, there has been no attempt at any stage by the Taxpayer to make clear why the consequences of disclosure would be so serious an interference with the claimant's rights that it was necessary and proportionate to interfere with the ordinary rule of open justice, or to provide clear and cogent evidence, or to explain why the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule. It is through the provision by an applicant of that information and its evaluation by the court that the Article 8 rights are rendered effective and not illusory.
Mr Eissa submitted that the Marandi requirements are satisfied in the present case. We do not accept that submission. Mr Eissa has come nowhere near establishing a very serious interference with Counsel’s right to respect for his private and family life or any reputational impact.