Open justice was one of the issues at the heart of the debate over so called “super injunctions” in 2011. From senior members of the judiciary to tabloid commentators, the subject has attracted attention and opinion from all sides. Its importance, and the potential for litigants to use the principle for their own ends, were considered in a judgment on the costs arising from an interim application given by Tugendhat J on 2 December 2011 (Coward v Harraden [2011] EWHC 3092 (QB)). The decision followed a hearing on costs arising from an Application Notice issued on May 16 2011 seeking an order to make public the contents of two earlier judgments by Sharp J. These concerned the granting of a Norwich Pharmacal order sought by the Claimant against the Defendant during two private hearings.

The Facts

The original applications, for the Norwich Pharmacal order, and for a subsequent order seeking to make the decisions on it public, are only a small part of a wide-ranging dispute. The Claimant and his wife, Ms Ambrosiadou, set up and ran a successful hedge-fund, IKOS, but their personal and business relationship broke down at the end of the last decade. Litigation in disputes encompassing both aspects of their life together has been conducted in London, Monaco, Greece and Cyprus. Bloomberg has an extensive piece about the fund the couple started and the events surrounding their falling-out, which it claims have “the hallmarks of a thriller”. In March 2011 the Court of Appeal held that an injunction sought by Ms Ambrosiadou against the Claimant in relation to information from divorce proceedings in Greece should continue (Ambrosiadou v Coward [2011] EWCA Civ 409).

The background to these proceedings is that the Claimant discovered surveillance devices at his home and obtained evidence that the Defendant could provide information which would help identify those who had placed them. He applied for a Norwich Pharmacal order (one which is made against an innocent respondent to disclose information required to identify an alleged wrongdoer) that the Defendant should disclose this information, and this was granted by Sharp J on April 13 2011, both open and closed judgments being given. A further hearing arising from the Defendant’s claim that he had a right not to disclose the information resulted in a further order for disclosure, which was also private.

The Claimant gave notice through his solicitor that he intended to apply for the restrictions on the publication of the judgments to be lifted, a move opposed by Ms Ambrosiadou, who accused him of abusing the process of the court, saying:

 “it is our client’s firm belief that your client is intent on ‘laundering’ damaging allegations about her into the public domain via legal proceedings…”

IKOS also opposed it, and the two parties (‘the Interveners’) separately became involved in the proceedings.

The Claimant went ahead with the Application Notice, issued on 16 May 2011 knowing that the two Interveners wanted to oppose the lifting of the restrictions; he offered to consider any redactions they proposed. Extensive and colourful press coverage followed, which detailed the allegations of surveillance which the Claimant was subjected to by private detective firm Kroll – the Sunday Times ran a story on 5 June 2011  headlined “Spies Bungle Tycoon’s Bid to Bug Husband”.

In July 2011 the Claimant’s solicitors wrote to those acting for the Interveners and Kroll, referring to an apparent intention to introduce large amounts of irrelevant and prejudicial material which had made pursuit of the application disproportionate to the interests at stake. An enclosed proposed draft order varied some provisions of Sharp J’s earlier orders, but effectively left the restrictions in place, in line with what the Interveners had originally wanted. The Interveners’ solicitors agreed to the variations but both wanted their costs paid in full, rejecting the Claimant’s subsequent offer to meet one side’s costs, or half those of each. The Claimant offered a total of £100,000 to both, but IKOS’s solicitors asserted that their costs amounted to £155,735.65, and that they wanted the entire £100,000.

The Decision

The Interveners’ submissions largely focused on the fact that the leaving in place of the restrictions that the Claimant eventually agreed to had been proposed by Ms Ambrosiadou’s solicitors before his Application Notice had even been issued. IKOS went further and submitted that there was never any proper basis for the application to lift them. There were also arguments about whether costs should be assessed summarily.

The Claimant argued that since the making of private judgments is a derogation from the principle of open justice, it was appropriate for him to draw this to the attention of the judge, whether or not it was in his interests to do so. Reasons given for the later agreement that the judgments should not be made public included the extensive press coverage, and the disproportionate cost of resolving the dispute, which had come to encompass issues surrounding the original Norwich Pharmacal order.

The Judge referred to dicta of Lord Woolf on the importance of proportionality in relation to costs, as well as to the relevant provisions of the CPR (Part 44). He acknowledged that the Interveners were in effect “the successful  parties to the dispute” stemming from the Application Notice to make the judgments public. He also accepted their submissions on why they were separately represented. However, he gave priority to the considerations of open justice, holding that these

“made it appropriate for Mr Coward to bring back before the court the question whether the private judgments should remain private or not. That is so whether or not he also perceived it to be in his own interests that they should be made public.”

He did not believe that the granting of the Norwich Pharmacal order, or the parties’ contribution to  the press coverage were issues which related to the Application Notice. His analysis was that unrelated issues had contributed to the vast costs incurred:

“It is only necessary to ask the question: how is it possible for a party to incur £150,000 in legal fees to oppose an application to make public a judgment that has been delivered in private? for it to be obvious that that is not possible.”

With reference to the conduct of the parties, and the making of offers to settle, which are set out in Part 44 as circumstances to which the court must have regard when considering costs, the Judge held that the proper order was no order for costs. Even if the other issues had been reasonable, raising and pursuing them to such an extent “was very unreasonable”.

Comment

The decision has general relevance to the attribution of costs in litigation, and a judge’s jurisdiction to decide them summarily. But perhaps more interesting is what it has to say about the principle of open justice. The Master of the Rolls’ Committee on super injunctions earlier in the year emphasised in its Report its fundamental constitutional status, and stated that the principle “applies to interim injunction applications as it does to trials”.

Tugendhat J referred to the guidance given by Lord Woolf on the subject in Hodgson v Imperial Tobacco [1998] EWCA Civ 224 which led to Queen’s Bench Division judges giving formal judgments setting out their reasons for decisions on interim applications. But he also considered in detail why, in a Norwich Pharmacal application, secrecy should be maintained: there is the potential for injustice, both to the respondent and to any other subject of allegations made by the applicant. Even if the allegations are proved correct by the innocent respondent’s information, their subject still has a right to be heard before a public judgment is made. The Judge identified a tension

“between the public interest in a judge always giving reasons in public for any decision, including interim decisions, and the public interest in a judge not giving any judgment until she has heard representations from all parties involved in the case.”

This language, of “competing public interests”, frames the debate on the topic in a different way from the public/private dichotomy which has often dominated accounts of private hearings, anonymisation, and judgments which are not published. In shifting the focus from individual litigants to wider questions about the administration of justice, it provides a means of understanding and arguing for secrecy which extends beyond the narrow terms of personal interests.

However, the decision also gives substantial weight to open justice when balanced against other matters, and makes clear that derogations from it should be seen as temporary. Even where, as here, there is some tactical interest for one party in making private decisions public, concerns about their motives are outweighed by the legitimacy of challenging any restrictions on the publication of judgments. Not only the amount of costs accumulated – which was eye-watering, given the issues – but also the fact that they related to efforts to prevent a private judgment being made public, seems to have counted against the parties that incurred them. It may not be an absolute value, but open justice will continue to be an explicit priority for the courts.

Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.