Case Law: Graiseley Properties v Barclays Bank, No anonymity in LIBOR litigation, Article 8 not considered – Lorna Skinner

In Graiseley Properties Limited and others v Barclays Bank Plc [2013] EWHC 67 (Comm) Mr Justice Flaux refused an application for anonymity orders made by 106 employees and former employees of Barclays in a test case arising from the LIBOR scandal on the basis that they had not established that it was strictly necessary for the proper administration of justice within Article 10(2) [57]. Whilst the outcome is not particularly surprising, the part of the judgment relating to the application of Article 8 is curious and merits further consideration.

Background

The main proceedings concern claims that Barclays mis-sold financial products by making implied fraudulent misrepresentations to customer that interest rates charged were being set by reference to LIBOR, the independent benchmark of the British Bankers Association, whereas in fact Barclays was making false and misleading submissions to the BBA and was manipulating or attempting to manipulate LIBOR. The question of anonymity arose in the context of disclosure and the identification of 207 Barclays employee email accounts, being those whose emails had been called for by various regulators, as accounts in respect of which disclosure should be given. 106 individuals applied for anonymity. Of those, 82 were employees and ex-employees who, on the material currently before the court, were not said to have been involved or implicated in the manipulation of LIBOR.

The principal order sought ([12]) was that, until trial, the names of the individuals and particulars of any key individual which might lead to his or her identification, together with the two lists and the code or key to be used at any hearing (see below) should not be published other than to the parties and their legal adviser and any actual or potential witness or expert. Anonymity of the individuals was sought to be preserved by orders that they only be referred to in open court by a code or a key or numbering and that any witness statement or exhibit filed or served and any statement made in open court should likewise not refer to any individual by name or otherwise give any particulars which might lead to identification of an individual.

Judgment

Mr Justice Flaux noted at the outset of the judgment that he found it “striking” that neither in the written representations nor in the skeleton argument of the represented individuals was the identity of the 106 individuals revealed [7]. As a result, “arguments on fairness and potential prejudice which are the essential foundation of the individuals’ application have not been supported by any evidence of specific unfairness or prejudice to a named individual. Rather the allegations of unfairness and prejudice have been presented on a generic basis” [8].

The Judge dismissed the application in robust terms. In doing so he noted that, not only was this a test case, but that the involvement of Barclays in the manipulation of LIBOR is only one part of a much bigger picture concerning the manipulation of LIBOR by a number of banks. Flaux J went on to state that there is a legitimate public interest in the true picture in relation to the manipulation of LIBOR by banks generally, not just Barclays, being brought fully to light and that in this context “fair and accurate media reporting of all aspects of LIBOR manipulation, including the involvement of employees and ex-employees of Barclays and their identity, is an important aspect of the public obtaining the true picture” [61]. Indeed, the Judge went so far as to say, at [63], that “for the court to permit individuals who were involved in such manipulation the protection of an anonymity order is not only not necessary for the proper administration of justice, but would be an affront to the principle of open justice and would potential damage public confidence in the administration of justice”.

At [23] of the judgment, however, the Court accepted an interesting submission  made on behalf of various media organisations in relation to Article 8. (The judgment does not record it as having been contested by any of the parties.) The submission was that the 106 individuals could not invoke their Article 8 rights because the case concerned their professional activities, as opposed to their private lives. Accordingly Article 8 was not engaged at all. In consequence, the Court was not required to, and did not carry out, the familiar Article 10 versus Article 8 balancing test (summarised at [17] in Re S [2004] UKHL 47). Instead, the question became solely one of considering whether, under Article 10(2), anonymisation was strictly necessary in the interests of justice.

Comment

The decision that Article 8 was not engaged at all is an odd one. Article 8(1) expressly provides that “Everyone has the right to respect for his private and family life, his home and his correspondence” (emphasis added). Emails are correspondence.

Lest it be thought that an employee’s email accounts do not belong to the employee, but to the employer, and cannot therefore be considered “his” correspondence within the meaning of Article 8(1), there is clear ECHR authority that this is not the case. In Copland v UK ([2007] ECHR 253) the mere monitoring by an employer of an employee’s telephone, e-mail and internet usage (but not their content) was held to be a violation of the employee’s Article 8 rights. The European Court noted at [41] that, according to its case law, telephone calls from business premises are prima facie covered by the notions of “private life” and “correspondence” for the purposes of Article 8(1) and held, by way of logical extension, that emails from work should be similarly protected, as should information derived from the monitoring of personal internet usage. Similarly, in Imerman v Tchenguiz [2010] EWCA Civ 908, the Court of Appeal did not attempt to draw any distinction for the purposes of Article 8 between emails sent or received in respect of personal matters on the one hand or business matters on the other (see [77]).

The main consequence of the finding that Article 8 was not engaged was that the Court was not required to “factor in” the Article 8 impact on each of the 106 applicants of their identification or of the disclosure of their emails. If Article 8 had been held to be in play there may have been a different outcome in relation to anonymity as between those individuals who have been implicated in manipulation of LIBOR and those who have not, or (perhaps more likely), as to the way in which disclosure of the relevant content of each email account should be given without unnecessary compromise of Article 8 rights. This, however, would have necessitated a consideration of individual circumstances which the Court was not in any event in a position to undertake because of the way that the application and arguments had been presented – namely on a generic basis.

Another point of interest is that the Judge accepted that Article 6 was “unlikely to be engaged” on the basis that Article 6 does not apply to interlocutory hearings not determinative of civil rights and obligations and that this was such a hearing. However, he neatly side-stepped the thicket that he would otherwise have found himself in with the observation that

“this is of little if any significance, since the exception to open justice set out in the closing lines of Article 6.1 is essentially the same exception as applies at common law [and] [t]hat the common law principle of open justice applies to interlocutory hearings as to trials is clear” [22].