A fundamental principle of litigation in the English courts, is that justice is open. This means that the public should be able to attend court proceedings or read about cases in publically available reports. As Lord Dyson said the “open justice principle is not a mere procedural rule. It is a fundamental common law principle.”
Whilst this principle is important, some parties are rightly concerned that personally sensitive or valuable information will be publicised and may be widely reported to their detriment. This is particularly true in private client disputes concerning wills and estates. Certain newspapers in particular are known to send reporters to hearings in search of sensational stories akin to Jarndyce and Jarndyce, the fictional probate case in Charles Dicken’s Bleak House in which the estate is effectively consumed by legal costs and the litigants suffer tragic fates.
So is it possible that litigants can protect their private information even if they need to pursue matters through the courts? The good news is that there are mechanisms available in the Civil Procedure Rules (CPR) to protect the privacy of litigants. For example, it is possible for a hearing to be held in private so that only the litigants and their legal advisers can attend. The bad news is that the circumstances where this is permissible are limited and include matters relating to national security, where publicity would defeat the object of the hearing (for example, in an application for a freezing injunction or a search order) or where a hearing involves confidential information or personal financial information which could be damaged by publicity. For wills and estate matters, it is this last category which may provide some leeway to review whether a privacy order is appropriate.
Privacy orders are very much a last resort. Recent cases make it clear that despite there being legitimate concerns regarding reputational damage, protection of business related information or the disclosure of personal financial information, these are not reason enough to justify an order that a hearing be held in private. The position is succinctly summarised by Lord Neuberger’s judgment in Pink Floyd Music Limited, Pink Floyd (1987) Limited v EMI Records Limited:
The present appeal provides a good opportunity for this court to make it clear that a private hearing or party anonymisation will be granted in the Court of Appeal only if, and only to the extent that, a member of the Court is satisfied that it is necessary for the proper administration of justice.
However, should a party have a strong case that their confidential information or personal financial information would be damaged by publicity, an interim application for a privacy order should be made at the earliest opportunity. This application must be carefully prepared as the applicant must convince the court to depart from the usual and longstanding principle of open justice and adduce compelling supporting evidence.
If successful, the court can put in place privacy orders requiring any hearing be in private, an order restricting publication of a judgment, order or information disclosed in the course of the proceedings. The court can also anonymise orders and restrict access to documents as necessary.
Given the Court’s reluctance to grant privacy orders, great care must be taken by the parties and their legal representatives in the course of litigation to protect private information and comply with the court’s decree. This can be done in several ways, including through an application to the court that confidential information is referenced only in a separate confidential bundle allowing the court to be referred to that information and at the same time ensuring it is not released into the public domain.
Should you require further specialist information on this topic or any matter concerning Property & Trusts related disputes then please contact partner Shams Rahman.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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