On 14 December 2010 the Court of Appeal handed down judgment in the case of Pink Floyd Music Limited v EMI Records ([2010] EWCA Civ 1429) – a contractual dispute concerning downloading of music to iTunes.  For our purposes, the interest of the case lies in Lord Neuberger’s general comments about private hearings and anonymity in the Court of Appeal.

The case was originally listed in private be heard in private under the case name “P v E”.  It appeared that the only reason was the alleged commercial sensitivity of the precise percentage figure in clause 9(d) of the 1999 Agreement.  The Court dealt with this by referring to the percentage in Court and in the judgments as “XX” and making an appropriate reporting restriction order (see [66]).

Lord Neuberger went on to say that

it was wrong in principle that this appeal was not properly listed. It was also inconvenient in practice: … . More importantly, unless steps are taken to ensure that this does not happen again, such inappropriate listing and preparation could lead to real injustice in another appeal” [65].

He went on to say that the case provided a good opportunity for the 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” [66]

He also noted that the fact that the first instance judge granted or refused to permit a private hearing or anonymisation could not be conclusive of such issues in the Court of Appeal – although the Court would normally pay close regard to the judge’s decision, especially if expressed in a reasoned judgment:

Nonetheless, in relation to appeals, the Court of Appeal should not depart from the general rule that litigation is to be conducted in public, unless a judge of that court is persuaded that there are cogent grounds for doing so”. [67]

He said that, in a case where permission to appeal was required, where the applicant wants a private hearing or anonymisation, the correct procedure is to apply for an appropriate order at the time permission to appeal is sought.

Where any application for a hearing in private or anonymisation is made, it will be referred to a single Lord Justice, who will, at any rate initially, consider it on paper. If such an application is granted ex parte and another party (or a representative of the media) objects, the order will, of course, be reconsidered“. [68]

He made clear, however, that

“in a case in which anonymisation or privacy was granted below, where anonymisation or privacy is sought in an appeal to this court, it would (at least in the absence of unusual circumstances) be appropriate for the parties and the court to maintain anonymisation or privacy on an interim basis, without a direction from a judge of this court, until it was possible for this court to rule on the question of whether an order for anonymisation or privacy should be made“. [69]