On 6 April 2019 an amended version of the rule governing hearings, CPR 39, came into force. The changes are intended to reinforce the principles of open justice.  The changes follow a consultation conducted by the Ministry of Justice in 2018.

There are a number of substantive amendments to CPR 39.2 (made by way of rule 8 of the Civil Procedure (Amendment) Rules 2019/342),which governs derogations from the general position that hearings are to be held in public and makes provision for the anonymisation of parties and witnesses.  The rule now makes clear that consent is not a sufficient basis for a private hearing and emphasises that such hearings will only be permitted where this is necessary to secure the “proper administration of justice”.

These principles are already contained in the Practice Guidance: Interim Non-disclosure Orders and established by the case law. While the changes to the rules give them greater prominence, the amendments will not make a difference to the approach taken by the Courts to private hearings.  Although there is new express reference to the right to freedom of expression, it is well established that this right cannot take priority over privacy rights. The position remains, as laid down by Re S (A Child) ([2005] 1 AC 593) [17], with neither Article 8 nor Article 10 having precedence; a balance must be struck in each case where both rights are in play, giving due weight to the importance of open justice.

There is, however, one important new provision.  Under CPR 39.2(5), where a court orders that a hearing be in private or that a party or witness be anonymised, a copy of that order should, generally, be placed on the UK Judiciary website and non-parties may apply to have the orders varied or set aside.  On 16 April 2019 the Master of the Rolls issued Practice Guidance [pdf] in relation to this provision.  This includes stipulations that:

  • A party seeking an order providing for either of these derogations from open justice should ensure that they submit to the court a draft order which does not contain any information which would undermine the purpose of the order (para 3).
  • To protect the integrity of the order the court may consider publishing a redacted copy for publication or setting aside the requirement to publish altogether (para 5).

Practitioners will have to give careful consideration to the terms of draft orders for anonymisation and/or private hearings, which can be separate documents from the substantive orders made on the application.  There is no requirement that such orders should recite the grounds on which they have been made. However, as a matter of good practice it is suggested that this should be done. Where a (prospective) party is seeking to invite the Court not to publish the order, or to publish a redacted version, it would be prudent for this to be addressed in the evidence filed with the application for the order.

In order to show the changes from the previous version of CPR 39.2 we have set out an amended version of the rule at the end of this post, with the new text underlined and deleted text struck through.

There are three other notable changes to CPR 39:

  1.  There is a new definition of “hearing” in CPR 39.1, which now includes any making of a decision at which a person has a right to be heard which permits simultaneous communication – in other words including telephone or video hearings (but not paper determinations).
  2. A new CPR 39.8 deals with communications with the Court and makes explicit the well-established rule that any communication with the court (save for ones which are routine, uncontentious and administrative) must be disclosed to the other parties – and must state on their face that they are being so disclosed.
  3. A new CPR 39.9 governs the recording and transcription of hearings.  For the most part, this regularises current practice although it includes a new provision to the effect that the judge may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of any note or other informal record of the proceedings made by another party or by the court (CPR 39.9(5)).

The revised CPR 39.2 showing the changes from old rule

“(1) The general rule is that a hearing is to be in public. A hearing may not be held in
private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(2)  In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected

(2A) The court shall take reasonable steps to ensure that all hearings are of an open and
public character, save when a hearing is held in private.

(3) A hearing, or any part of it, may be in private if must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g)  the court for any other reason considers this to be necessary to secure the proper administration of justice.

(4)  The court may must order that the identity of any party or witness must not be shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.

(5) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (3) or (4), a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.

Aidan Wills is a barrister at Matrix specialising in media and information law, public law and employment law. This post was published on the Matrix Media website.