A number of important recent decisions have re-emphasised the principle of open justice.  The judgments of the Court of Appeal in R (Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs ([2010] 3 WLR 554) contain extremely powerful statements which recognise the fundamental importance of this principle.   The language of Lord Judge CJ is particularly striking for its emphatic recognition of the importance of the role of the media. 

He said

“In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens.  Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.” [37]

He went on to explain the interrelationship between the open justice principle and freedom of expression in the following terms

“In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression.  Ultimately it supports the rule of law itself.  …  Expressed in this way, the principle of open justice encompasses the entitlement of the media to impart and the public to receive information in accordance with Article 10 of the European Convention of Human Rights.” [38-40]

The approach of the Lord Chief Justice was expressly approved by the Master of the Rolls [180].  The Master of the Rolls observed (at [133] that the open justice principle is “reinforced” by Article 10.

This ringing endorsement of the principle of open justice, and the importance of the role of the media set the tone for the decision of the Court of Appeal six weeks later in Independent News and Media Limited and Others v. A (By his Litigation Friend, the Official Solicitor) ([2010] 3 All E.R. 32) discussed in the previous post in this series.  In that case the Court of Appeal recognised the importance of media access to the newly-established Court of Protection in appropriate cases. Lord Judge CJ giving the Judgment of the Court stated:-

“We should add that it would be difficult to find a more appropriate hearing before the Court of Protection for media understanding of its processes.  It is valuable for the public to be informed of precisely what happens in a Court in which the overwhelming majority of hearings are, in accordance with the statutory structure governing its process, to be conducted in private. That is a particularly significant point at this time, in the light of the interest and concerns which have been expressed in some quarters about the new Court of Protection.” [23]

The open justice principle also contributed to the important decision of the Court of Appeal in Al Rawi and Others v. The Security Service and Others ([2010] UKHRR 728).  In that case the various Government agency Defendants sought a “closed material procedure” by which they proposed to defend claims in tort brought by former detainees on the basis of material which would be shown only to the Court, and not to the Claimants or to the public.  At first instance Silber J. held that such a closed material procedure was permissible in litigation even in the absence of statutory authority.  The Court of Appeal rejected this view, holding “firmly and unambiguously” that it is not open to a Court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties to order a closed material procedure in relation to the trial of an ordinary civil claim [11].

The primary reason for this conclusion was that such a closed material procedure would undermine one of the most fundamental principles of the common law.  In reaching its decision the Court of Appeal relied expressly on the reasoning of Lord Judge CJ in R (Binyam Mohammed) v. Secretary of State for Foreign and Commonwealth Affairs set out above, see [17]).  In two further judgments delivered the same day – Home Office v. Tariq [2010] ICR 1034 and Bank Mellat v. HM Treasury [2010] EWCA Civ 483), the same Court held that closed material procedures prescribed by statute were not inherently unlawful by reference to EU law or the Convention, provided the party in question was entitled to be provided with the allegations made against him in sufficient detail to enable him to give instructions to his legal representatives so that those allegations could be effectively challenged.

However, this renewed emphasis on open justice does not mean that the existence of litigation removes or diminishes a party’s legitimate rights of confidentiality and privacy.  This is illustrated by the recent decision of the Court of Appeal (Lord Neuberger MR, Moses and Mumby LJJ) in Imerman v. Tchenguiz and Others ([2010] EWCA Civ 908).  In that case there were divorce proceedings between Mr Imerman and his wife.  The wife’s brothers surreptitiously accessed Mr Imerman’s private financial documents and information on a shared computer server at an office which they shared.  From the vast amount of material accessed and downloaded by the Tchenguiz brothers some seven lever arch files of hard copy documents were provided to the wife’s solicitors for use in the divorce proceedings. The files contained some privileged documents.  The existence of the seven files of documents was belatedly disclosed to Mr Imerman’s solicitors by the wife’s solicitors under the so-called “Hildebrand rules”.

Mr Imerman commenced proceedings in the Queen’s Bench Division against the Tchenguiz brothers and their IT managers and solicitor for breach of confidence, misuse of personal information and breach of the Data Protection Act.  The Tchenguiz brothers and the other Defendants defended the claims on the grounds that it was legitimate for them to take Mr Imerman’s documents with a view to providing them to the wife for use in the matrimonial proceedings.  In the Family Division Mr Imerman sought Orders for the return of the seven files by the wife and her solicitors.

The first instance Judges in the Queen’s Bench Division and Family Division adopted different approaches.  In the Queen’s Bench Division Eady J. granted summary judgment to Mr Imerman for permanent Injunctions restraining the use or disclosure of any of the surreptitiously accessed information (including any further disclosure to the wife or her solicitors), and the delivery up/destruction of all paper and electronic copies.  In the Family Division Moylan J. allowed the wife to retain the seven lever arch files of documents, subject to a mechanism designed to allow Mr Imerman to remove documents in respect of which he claimed legal professional privilege. The Defendants in the Queen’s Bench Division proceedings appealed.  Mr Imerman appealed against the Orders made in the Family Division.

In a closely reasoned Judgment the Court of Appeal dismissed the appeal in the Queen’s Bench proceedings and allowed the appeal in the Family Division proceedings.  The Judgment of the Court, delivered by Lord Neuberger MR, contains an important review of the law of confidence starting at [54]. The Court rejected the submission that merely looking at documents and copying them for use in legal proceedings involved no misuse of private information so as to found a cause of action under the developing law.  The Court gives the following valuable summary of the developing law of confidence:-

“In our view, it would be a breach of confidence for a Defendant, without the authority of the Claimant, to examine, or to make, retain, or supply copies to a third party of, a document whose contents are, and were (or ought to have been) appreciated by the Defendant to be, confidential to the Claimant.  It is of the essence of the Claimant’s right to confidentiality that he can choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the protection of the confidence.  It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a Claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised Defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy.  Without the Court having the power to grant such relief, the information will, through the unauthorised act of the Defendant, either lose its confidential character, or will at least be at risk of doing so.  The Claimant should not be at risk, through the unauthorised act of the Defendant, of having the confidentiality of the information lost, or even potentially lost.” [69]

A number of important points are established by the Judgment of the Court.  These include:-

  • Communications which are concerned with an individual’s personal finances, personal business dealings and (possibly) his other business dealings are the stuff of personal confidentiality, and are specifically covered by Article 8 of the Convention, which confers the right to respect for privacy and expressly mentions correspondence:  [76].
  • There is no rule of law which requires a Claimant to identify each and every document for which he claims confidence, and why.  In the case of unauthorised accessing and downloading of huge quantities of information such a requirement would be “oppressive and verging on the absurd”: [78].
  • The fact that the confidential material was stored on a shared server to which the Defendants had physically unrestricted access could not possibly mean that the Defendants were entitled to look at Mr Imerman’s otherwise confidential personal or business papers – “confidentiality is not dependant upon locks and keys or their electronic equivalents”: [79].
  • There is no basis for a submission that there is no confidence as between husband and wife.  A married person remains an individual and enjoys the protection of Article 8.  See [80]-[86].  However, the manner in which the parties in a marriage (or other relationship) conduct themselves may impact on the reasonable expectation of privacy which each enjoys.  Leaving bank statements or other potentially confidential documents around the matrimonial home might result in the loss of their confidential character as between husband and wife:  [87]-[89].
  • There was “a real possibility” that the unauthorised access to Mr Imerman’s computerised data involved the commission of criminal offences under the Computer Misuse Act 1990 and the Data Protection Act 1998, as well as a breach of statutory duty under the latter Act:  [92]-[104].  However, the Court of Appeal did not need to determine whether this was the case since Mr Imerman’s claim for breach of confidence was clearly established on equitable principles:  [105].
  • The so-called “Hildebrand rules” had no basis in law insofar as they were relied on to condone self-help which involved obtaining documents or information for use in litigation through breach of confidence.  See [106]-[140].
  • Court processes, including where necessary search orders or orders for the preservation of evidence are available in appropriate cases.  These processes have inbuilt safeguards which ensure their compliance with Article 8.  Such Orders would not have been available against Mr Imerman on the evidence before the Court.  Accordingly it was “simply unacceptable to countenance Mrs Imerman taking the law into her own hands”: [140].
  • Mrs Imerman, although not involved in the initial taking of the documents, “should not be entitled to benefit in any way from the wholesale, wrongful, and possibly criminal, accessing and copying of Mr Imerman’s confidential documents”: [146].

Accordingly, the Court of Appeal upheld the Orders granted by Eady J. against the Queen’s Bench Defendants, and varied the Order of Moylan J. in the Family Division to require the seven file of documents to be returned to Mr Imerman’s solicitors.

It is noteworthy that one of the Defendants in the Queen’s Bench proceedings was the Tchenguiz brothers’ solicitor.  The Judgment of the Court of Appeal makes it clear that a solicitor provided with confidential papers by his or her client may be restrained from using or disclosing the information and ordered to deliver it up to the Claimant – see [70], [121].  In addition, solicitors who have received and read confidential documents may find themselves restrained from acting further in the proceedings [121].

The message sent out by the Judgment of the Court of Appeal in Imerman is clear: parties to litigation, and those who support them, must not resort to self-help involving breach of confidence in order to obtain documents and information for use in litigation.  If they do so, the law of confidence will provide remedies against them and their professional advisers.  The parties must play by the rules.  Neither side may employ illegal self-help to obtain a litigation advantage.

The impact of foreign court hearings on privacy and confidentiality was considered by Eady J. in Ambrosiadou v. Coward ([2010] EWHC 1794 (QB)).  In that case it was held that even if a document had been referred to at an open court hearing in Greece this would not necessarily mean that privacy and confidentiality otherwise attaching to the information in the document had been irretrievably lost.  It would be a question of fact whether the material had truly become public, as opposed to the purely theoretical position: [20].

Antony White QC is a barrister at Matrix.  This is a further extract from a talk given at the 2010 “Protecting the Media” conference