Anonymity and ‘Open Justice’

Many are likely to have heard the dictum that ‘justice must not only be done but be seen to be done’.

As a rule, all court hearings must take place in public, with the parties’ names made public and certain documents filed on the court file accessible to non-parties. In limited circumstances, the court recognises that this may not be appropriate and that it may, in fact, prevent an individual or a business enforcing its legal rights through the courts for fear of their sensitive and intimate information being made public.

In certain scenarios, the court may permit a party to:

1. Issue proceedings anonymously
2. Restrict access to the court file to prevent non-parties accessing certain documents filed
3. Direct that a hearing, in whole or in part, take place in private
4. Put in place restrictions on reporting what happened during a hearing

The court must be persuaded as to the necessity of one or more of derogations from open justice, and that the derogation is no more than strictly necessary to achieve the purpose.

To speak to a solicitor about any concerns, contact JMW today by calling 0345 872 6666, or fill in our online enquiry form to request a call back.

How Can JMW Assist?

Our Media and Reputation Management team understands that a decision to embark upon litigation is not one made lightly, and one consideration may be the impact to a business or an individual of court proceedings that take place in public view. The risk of adverse publicity is not in itself a good reason to seek anonymity or restrictions on the court file be placed, but there may be genuine concerns of the sensitivity of information should that be made public.

We can assist you to consider the options available to protect your private and confidential information, and to not cause any further harm where the legal action seeks to remedy the harm caused.

When Might the Court Consider Derogations From Open Justice?

The court may be persuaded to allow one or more derogations from open justice where:

• Publicity would defeat the object of the hearing
• The matter involves issues of national security
• The matter involves confidential information and publicity would damage confidentiality
• A private hearing is necessary to protect the interests of a child or vulnerable person
• There is another compelling reason that it would be necessary in the interests of justice

The following are examples of where you may wish to consider applying to the court for derogations from open justice:

• A famous celebrity makes an urgent application seeking an interim injunction to prevent a news outlet from publishing an article containing their intimate and private personal life, which will impact upon the celebrity and their family. They may seek to issue proceedings anonymously, restrict access to court documents filed and have any hearings take place in private
• A public limited company (PLC) issues a claim against a former employee who it alleges stole a trade secret relating to a secret recipe. The PLC may be content to be named in any proceedings, but may ask to restrict access to the court file, or for hearings to take place in private in parts to avoid its commercially sensitive information being made public or disclosed to its competitors

It is also possible that the parties may discuss between themselves how confidential information is held, such as the setting up of confidentiality rings to permit the sharing of confidential or commercially sensitive documents during court proceedings.