GSTS Pathology LLP, R (on the application of) v Revenue & Customs [2013] EWHC 1823 (Admin)

[2013] EWHC 1823 (Admin)Case No CO/3544/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday 21 June 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LEGGATT
Between
THE QUEEN ON THE APPLICATION OFClaimantGSTS PATHOLOGY LLPClaimantSERCO LTDClaimantGUY'S AND ST THOMAS' NHS FOUNDATION TRUSTClaimantv
Between
COMMISSIONERS FOR REVENUE & CUSTOMSDefendant
Written submissions presented by Miss Philippa Whipple QC for Claimants.Application dealt with on written submissions.
J U D G M E N T
[1]The claimants made an application for interim relief in this case which was heard on 17 and 18 April 2013. Because of the urgency of the matter, I gave my judgment orally in court on 22 April 2013.[2]After the hearing I was asked by counsel for the claimants if, before a transcript of the judgment is published, I would consider removing certain information from the judgment which the claimants consider to be commercially sensitive. I agreed to send the corrected transcript to the parties in confidence and give them an opportunity to make written submissions on this question before the transcript is published.[3]In her written submissions made on behalf of the claimants, Miss Phillippa Whipple QC accepts that the principle of open justice requires that the public should be able to scrutinise the workings of the court system and to know the basis on which the court has reached its judgment in any given case. However, she notes that the principle is not absolute and is subject to exceptions, and submits that the court has an inherent jurisdiction to determine how the principle should be applied: see R (Guardian News and Media Ltd) v City of Westminster Magistrates Court [2012] EWCA Civ 420, [2012] 3 WLR 1343 , para 69. Miss Whipple submits that the court's inherent jurisdiction does not terminate once judgment has been given, even if that judgment has been given in open court, and even if that judgment included reference to information which it is now sought to protect. The matter remains within the court's discretion.[4]The information which the claimants have asked me to remove from the judgment falls into two categories. First, I have referred to financial information taken from unaudited accounts of GSTS for the year to 31 December 2012. Audited accounts for that year will not be published until July or September 2013. The claimants submit that it would be preferable to refer in the published judgment to financial information which is both audited and in the public domain already, taken from the accounts for the previous year to 31 December 2011 which were also in the evidence before the court. This will ensure that accurate figures are given in the judgment.[5]The second category of information which the claimants have asked me to remove consists of information about the potential effect on GSTS' business of the proposed change of tax treatment of its supplies. It is said that publication of this information will undermine GSTS' ability to bid successfully for new contracts and its customers' perception of its financial viability.[6]The claimants submit that the information which they invite the court to remove is not central to the court's reasoning and appears largely by way of background. They suggest that the relevant paragraphs of the judgment are capable of being re-worded in a way which retains the full sense of the judgment and permits the public to understand readily the reasons for it, without disclosing the details. It is also said that the claimants did not have the opportunity to make submissions on confidentiality in advance of judgment being handed down.[7]The defendant has elected not to make any written submissions and takes a neutral position on the question of whether the alterations proposed by the claimants should be made.[8]It is true that the claimants did not have an opportunity to read a draft of my judgment before it was given in court, as they would have done if a written judgment had been handed down. However, the purpose of providing a draft judgment in confidence to the parties and their legal representatives before the judgment is handed down is to enable them to assist the court by spotting typographical or minor factual errors and to consider consequential matters such as costs and whether to seek permission to appeal. It is not to allow submissions to be made on matters of substance, such as what facts should be relied on or referred to in support of any conclusion. Any such submissions ought to be raised at an earlier stage.[9]In this case all the information which I have been asked to remove from the judgment was contained in witness statements which were in evidence at the hearing. The passages in the witness statements which contained the information were referred to in the claimants' written submissions and some of the information was mentioned in oral argument. The entire hearing took place in open court. No application was made at any stage that the hearing, or any part of it, should be in private.[10]The claimants now point out that, when the bundles for their application were lodged with the court, the covering letter dated 22 March 2013 included the following statement:
"... there are a number of documents within the Document Bundle (which runs to several lever arch files) which are commercially sensitive. Please ensure that care is taken to ensure that these documents are not disclosed to or seen by third parties. We understand that they will not appear on the court file and will not be available for inspection."
[11]My recollection is that the Document Bundle, which ran to four lever arch files, contained copies of underlying documentation rather than the witness evidence. In any case this letter, which was not drawn to my attention at the hearing, related only to inspection of the court file and not to the status of documents referred to in open court.[12]Undoubtedly the court has power to control the form in which its judgment is published, and also to alter the content of a judgment after it has been delivered orally. Indeed the recent decision of the Supreme Court in Re L and R (children) [2013] UKSC 8 demonstrates that a judge may even change the result of a case after giving an oral judgment, at any rate before the order recording the decision is drawn up and perfected. However, it is a fundamental aspect of the principle of open justice that all the reasoning which has led a court to its conclusions should be publicly available, and compelling reasons are required to justify any departure from that principle: see e.g. R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218 . Furthermore, it seems to me that a party who seeks to persuade the court to delete or avoid reference in its published judgment to information which has already been referred to in a public hearing faces an inherently difficult task – and one which must be all the more difficult where the information has already been mentioned in a judgment delivered orally in open court. It is clearly desirable that the reasons for a decision set out in the published version of the judgment should correspond, subject only to any necessary corrections, to the reasons heard by the parties and any members of the public present when the judgment was pronounced. In addition, where, as in this case, the objection to publicity is to protect the confidentiality of information, there is an obvious danger that, if the information has already been referred to publicly in court, the objection may be too late as the confidentiality may already have been lost.[13]In the present case, I accept the claimants' statement that, even though the hearing was open to the public, the relevant information has not in fact entered the public domain as a result of having been mentioned in court. However, I am not satisfied that it is right to omit any of the information from the published judgment.[14]As regards the first category, I see no good reason to restrict publication of any financial information contained in the unaudited accounts of GSTS. Even if not central to my reasoning, the current financial situation of GSTS is certainly relevant and important to my assessment of the detriment which the change of tax treatment would, if implemented, cause to GSTS and its shareholders. The extent of such detriment is material both to the substantive question of whether the change of tax treatment would be unfair to the taxpayer and to the question whether, unless an interim injunction were granted, the claimants would suffer irreparable injury. It is not suggested that the claimants will be prejudiced by the inclusion in the published judgment of information taken from the latest accounts of GSTS a few months before the audited accounts are in any event published. Nor do I accept that it would be preferable to refer instead to the audited accounts for the previous year to 31 December 2011, to ensure that accurate figures are given. In assessing the current financial situation of the company, the accounts for the most recent year, even though not yet audited, are in my view the best available information.[15]As for the second category of information that I am asked to remove, I accept that the effect on GSTS' business of the proposed change of tax treatment is of commercial sensitivity to GSTS. However, the fact that the proposed tax change potentially will, if implemented, cause serious damage to the business of GSTS was the basis on which an interim injunction was sought and is central to the reasons for granting an injunction. I can understand that the claimants would prefer competitors and customers not to know that, if the proposed tax treatment of its supplies is implemented, GSTS will be unable to continue to trade for long unless its business is restructured in a way that will itself have certain detrimental consequences. However, it is not suggested that this information should be omitted from the judgment, and I am not persuaded that material additional prejudice is likely to be caused by mentioning the specific facts on which the conclusion is based. By contrast, I think it important in the interests of open justice to explain the facts which justify the conclusion.[16]The transcript of the judgment will therefore be published without alteration.