T (A Firm Of Solicitors), R (on the application of) v Legal Aid Board [1998] EWCA Civ 958

EWCA-Civ
T (A Firm Of Solicitors), R (on the application of) v Legal Aid Board
[1998] EWCA Civ 958 · 1998-06-10
[1]There can be no justification for singling out the legal profession for special treatment. The inference that they should be singled out should not be drawn from O.106 r.12. The order certainly presupposes that solicitors in disciplinary proceedings to the High Court should not be identified in the title to the proceedings. However this is probably a remnant from earlier times when the disciplinary proceedings were themselves in private which is no longer the position. The situation in relation to other professions, eg doctors and dentists appealing to the Privy Council, is that in general they are not granted any anonymity. In our view, the Rules of the Supreme Court should now be amended to bring the position of solicitors in line with that general practice. In any event it is of interest to note that the fact that solicitors are not to be named in the title of the proceedings does not provide the protection of the law of contempt for the publication of the name of the firm. This would require, as was made here on an interim basis by Kay J, a direction under s.11 of the Contempt of Court Act 1981.[2]This not being one of the four specific situations identified in section 12 of the Administration of Justice Act 1960 where publication of information relating to proceedings for a court sitting in private is given statutory protection, any protection against identification of a party must depend upon some exception to the general principle that all proceedings should be conducted in public. As to what are the exceptional situations where the general principle will not apply, it is always necessary to start with the guidance given by the House of Lords in Scott v Scott [1913] AC 417. In that case Viscount Haldane LC made it clear that:
"The exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done. .....As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in a particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. .... I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made. (At p.437, 438 and 439)"
To this statement there can usefully be added the comment of Lord Loreburn that :
"In all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court. (At p.446)"
Lord Loreburn’s statement was regarded as indicating the general approach by Viscount Dilhorne in the Leveller Magazine case (at p.457E). The speeches in those cases make it clear that an exception can only be justified if it is necessary in the interests of the proper administration of justice. Latham J’s approach was correct.[3]While Viscount Haldane LC in Scott v Scott emphasised that the limits to the exceptions to the general principle that proceedings should be conducted in public could not depend on “the individual discretion of the judge”, (at p.435) there are an immense variety of situations in which it is appropriate to restrict the general rule. These situations depend very much on their individual circumstances. So if a judge adopts the correct approach in determining any particular application, indicated by the passages from Scott v Scott and the Leveller Magazine case already cited, the Court of Appeal will not interfere with the decision of a judge on an issue of this nature.[4]The fact that the outcome usually depends upon the assessment of the judge of the particular circumstances of a case explains why no consistent pattern can be identified by examining the cases where courts have made or declined to make an exception to the general rule. Furthermore in many of the cases the question will have been resolved in a summary manner, there being no objection from the other party, to anonymity. Sometimes the importance of not making an order, even where both sides agree that an inroad should be made on the general rule, if the case is not one where the interests of justice require an exception, has been overlooked. Here a comment in the judgment of Sir Christopher Staughton in ex parte P (1998), The Times Newspaper, March 31 1998, is relevant. In his judgment, Sir Christopher Staughton states:
"When both sides agreed that information should be kept from the public that was when the court had to be most vigilant."
The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.[5]Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary. Section 12 of the Administration of Justice Act 1960 specifically identifies proceedings relating to minors, proceedings under the Mental Health Act 1959, proceedings where the court sits in private for reasons involving national security and proceedings involving secret processes, discovery or invention as candidates for special protection. In addition section 12 refers to proceedings “where the court (having power to do so)” expressly prohibits publication, but this does no more than recognise the general principle. The language of Section 2 of the Contempt of Court Act 1981 is also of interest. It provides that, while proceedings are active, there is strict liability for contempt if a publication creates a “substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.[6]In deciding whether to accede to an application for protection from disclosure of the proceedings it is appropriate to take into account the extent of the interference with the general rule which is involved. If the interference is for a limited period that is less objectionable than a restriction on disclosure which is permanent. If the restriction relates only to the identity of a witness or a party this is less objectionable than a restriction which involves proceedings being conducted in whole or in part behind closed doors.[7]The nature of the proceedings is also relevant. If the application relates to an interlocutory application this is a less significant intrusion into the general rule than interfering with the public nature of the trial. Interlocutory hearings are normally of no interest to anyone other than the parties. The position can be the same in the case of financial and other family disputes. If proceedings are ex parte and involve serious allegations being made against another party who has no notice of those allegations, the interests of justice may require non-disclosure until such a time as a party against whom the allegations are made can be heard.[8]A distinction can also be made depending on whether what is being sought is anonymity for a plaintiff, a defendant or a third party. It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation. In general, however parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule.[9]There can however be situations where a party or witness can reasonably require protection. In prosecutions for rape and blackmail, it is well established that the victim can be entitled to protection. Outside the well-established cases where anonymity is provided, the reasonableness of the claim for protection is important. Although the foundation of the exceptions is the need to avoid frustrating the ability of the courts to do justice, a party cannot be allowed to achieve anonymity by insisting upon it as a condition for being involved in the proceedings irrespective of whether the demand is reasonable. There must be some objective foundation for the claim which is being made. Conclusions As to This Appeal This last point is particularly relevant to the claims for anonymity in this court which the appellants are putting forward. It is not a reasonable basis for seeking anonymity that you do not want to be associated with a decision of a court. Nor is it right for an appellant to seek to pre-empt the decision of this court by saying in effect we will not cooperate with the court unless the court binds itself to grant us anonymity. The appellant had secured anonymity until the end of the appeal and they could not reasonably ask for more. It also cannot be reasonable for the legal profession to seek preferential treatment over other litigants. If the appellants had not raised the issue of anonymity, at the leave stage, it is not likely that their proceedings would have resulted in any publicity at least until the substantive hearing. If publicity did result from the substantive hearing then that publicity, so far as it was unfair, would be mitigated within a short time scale by the judgment of the court. If the judgment was adverse, then it is accepted on their behalf, that publicity could no longer be restrained since their alleged conduct should then be known. If the judgment was favourable, then the judgment would to a substantial extent provide the answer to any adverse publicity. Kay J came to the right answer in deciding not to grant the application. The appeal against his decision will therefore be dismissed.

ORDER

Appeal dismissed with costs to be paid by the appellant. ____________________________________

Cited in 128 later judgments

and 41 more of the most senior

Showing the 50 most senior of 128.