M27: Anonymity and private hearings

Tribunal powers and duties

Order prohibiting disclosure or publication

“The Tribunal may make an order prohibiting the disclosure or publication of--
(a) specified documents or information relating to the proceedings; or
(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.” (FTT Rules, r.14).

Direction that hearing or part is in private

“(1) Subject to the following paragraphs, all hearings must be held in public.
(2) The Tribunal may give a direction that a hearing, or part of it, is to be held in private if the Tribunal considers that the restricting of access to the hearing is justified-
(a) in the interest of public order or national security;
(b) in order to protect a person's right to respect for their private and family life;
(c) In order to maintain the confidentiality of sensitive information;
(d) in order to avoid serious harm to the public interest; or
(e) because not to do so would prejudice the interests of justice.
(3) Where a hearing, or part of it, is to be held in private, the Tribunal may determine who is permitted to attend the hearing or part of it.” (FTT Rules, r.32(1) – (3)).

Drafting of decision not to undermine hearing in private

“(6) If the Tribunal publishes a report of a decision resulting from a hearing which was held wholly or partly in private, the Tribunal must, so far as practicable, ensure that the report does not disclose information which was referred to only in a part of the hearing that was held in private (including such information which enables the identification of any person whose affairs were dealt with in the part of the hearing that was held in private) if to do so would undermine the purpose of holding the hearing in private.” (FTT Rules, r.32(6)).

Tribunal powers and duties

Application should be made and determined as early as possible

"[57] This case illustrates the difficulties which can arise where an application by a taxpayer for privacy and/or anonymity is delayed. The practical effect of deferring the substantive application has been that the taxpayer has been able to avoid the open justice principle for all preliminary proceedings for over two years, without any consideration having been given to his reasons for seeking privacy or anonymity.

[58] In general, such applications should be dealt with promptly by the FTT when they are made, and should not be deferred.

[59] In addition, as Martin Spencer J said in Zeromska-Smith v United Lincolnshire Hospitals [2019] EWHC 552 (QB) (at [21]), “an application for anonymity should be made well in advance of the trial”. As explained in that case, an applicant may wish to take into account a refusal of anonymity in considering whether to pursue an appeal, and the timetable for hearing the substantive appeal should not be at risk because of an appeal by either party against a decision on an application for privacy or anonymity.

[60] The determination of a privacy or anonymity application need not be a protracted affair. In Global Torch, the Court of Appeal referred to Lord Steyn’s comment [2] that “where the values under [Articles 6 and 8] are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary”, and, in the context of the rules of the CPR, observed as follows, at [27]:

…Lord Steyn's reference to "an intense focus" does not mean that every time a litigant waves an Article 8 flag in support of an application for a private hearing there will have to be a protracted and expensive hearing to determine the issue. Often, indeed usually, experience suggests that the application can be determined very quickly. It also shows that, in most cases falling outside the area of recognized exceptional circumstances…the open justice principle will prevail.

[61] We respectfully endorse those comments in relation to privacy or anonymity applications made to the FTT." (HMRC v. The Taxpayer [2024] UKUT 12 (TCC), Bacon J and Judge Thomas Scott)

Application should be made and determined as early as possible

Public hearing is a constitutional principle of fundamental importance

"[40] The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law. We have already given two examples of such principles, namely that the law of the land cannot be altered except by or in accordance with an Act of Parliament, and that the Government cannot search private premises without lawful authority. Many more examples could be given. Such principles are not confined to the protection of individual rights, but include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public ( Scott v Scott [1913] AC 417), and the principle of the separation of powers between the executive, Parliament and the courts ( Ex p Fire Brigades Union , pp 567-568). In their application to the exercise of governmental powers, constitutional principles do not apply only to powers conferred by statute, but also extend to prerogative powers." (R (oao Miller) v. The Prime Minister [2019] UKSC 41)

"[1] As Lord Hewart CJ famously declared, in R v Sussex Magistrates, Ex p McCarthy [1924] 1 KB 256, 259, “… it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. That was in the context of an appearance of bias, but the principle is of broader application. With only a few exceptions, our courts sit in public, not only that justice be done but that justice may be seen to be done." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)

"[1] The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. The rationale for the second rule is not quite the same as the rationale for the first, as we shall see...

...

[16] The rationale for a general rule that hearings should be held in public was trenchantly stated by Lord Shaw of Dunfermline in the leading case of Scott v Scott [1913] AC 417, at 477. He quoted first from Jeremy Bentham:

“‘In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.’ ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’ ‘The security of securities is publicity.’”

He also quoted the historian Henry Hallam:

“Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any state be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.”" (R (oao C) v. Secretary of State for Justice [2016] UKSC 2)

Public hearing is a constitutional principle

Open justice: reasons for

"[24] An anonymity order is therefore a derogation from the principle of open justice, and an interference with that general public interest, protected in Articles 10 and 6.
[25] Any derogation from open justice must be "necessary". As Lord Sumption underscored at [14] in Khuja, "necessity remains the touchstone of this jurisdiction". Several other authorities emphasise a test of necessity: see JIH at [21(4)], cited above; Lord Dyson at [11] in Al-Rawi v Security Service [2012] 1 AC 531 (SC), citing Scott v Scott [1913] AC 417 (HL):
" 11. The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott [1913] AC 417, Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as "constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security." Lord Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question "as one of principle, and as turning, not on convenience, but on necessity". "
[26] The House of Lords in Scott v Scott also gave guidance on when a derogation from open justice is necessary, and on whom the burden should lie for proving it is the case. Viscount Haldane LC made clear (at p 437, 438 and 439) that:
" The exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done. … As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in a particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. … I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made ". (my emphasis)
[27] The reason for a test of necessity is apparent when one examines the justification for the principle of open justice, summarised by Lord Sumption at [13] in Khuja as "the value of public scrutiny as a guarantor of the quality of justice". Lord Atkinson at p 463 in Scott v Scott described that justification in these terms:
" The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect". (my emphasis)
[28] In R v Legal Aid Board ex parte Kaim Todner (A firm) [1999] QB 966 (CA), Lord Woolf MR (at [4]-[5], p 977) warned against the erosion of open justice, and explained the justification for the principle:
" The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. … Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary ".
This passage was later endorsed by the House of Lords in Re S at [29], and the Supreme Court in Khuja at [14]." (Moss v. Information Commissioner [2020] EWCA Civ 580, Haddon Cave LJ)

Open justice applies to all tribunals

"[41] The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)

Two purposes: public scrutiny of the way courts decide cases and to understand how the justice system works

[42]...The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. In A v British Broadcasting Corpn, Lord Reed reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott [1913] AC 417, 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard “with open doors”, “bore testimony to a determination to secure civil liberties against the judges as well as against the Crown” (para 24).

[43] But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases." (Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38)

Open justice applies to all tribunals

Truly exceptional to have a private hearing

“There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward [2011] EWCA Civ 409 at [50] – [54]. Anonymity will only be granted where it is strictly necessary, and then only to that extent…The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence…” (Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003, §§12 – 13).

"[6] Arbitration in the United Kingdom is as a norm a private form of dispute resolution and both the arbitration and the arbitral award are not generally a matter of public record. In England and Wales, the rules of procedure (CPR rule 62.10) empower the court to order that a claim under the Arbitration Act 1996 (“the 1996 Act”) or otherwise affecting arbitration proceedings or an arbitration agreement be heard in public or in private but create a norm that such claims are heard in private. The obligations of confidentiality which are usually imposed in arbitration agreements are designed to protect the privacy of the parties to the arbitration and the evidence led in arbitral hearings. But nobody has suggested any basis in the public interest for preserving the anonymity of the arbitrators themselves in a challenge of this nature. I am satisfied that the principle of open justice, which this court discussed in Dring (on behalf of the Asbestos Victims Support Group) v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629, paras 41-43, points towards disclosure. This court has emphasised the importance of avoiding incremental exceptions to the principle of open justice: Khuja v Times Newspapers Ltd [2017] UKSC 49; [2019] AC 161, paras 12-14 per Lord Sumption; In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 29 per Lord Steyn, endorsing the warning of Lord Woolf MR in R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977. The arbitrators in the Halliburton/Chubb arbitration were defendants in the action but understandably took no part in the proceedings. The arbitrator, whose decisions are challenged in these proceedings, Mr Kenneth Rokison QC has a long-established reputation for integrity and impartiality. But the protection of that reputation is not a sufficient ground for anonymity, particularly when the courts below have founded on that reputation in their reasoning. In any event, the challenge in this case involves no assertion of actual bias but relies entirely on an assertion of an objective appearance of bias. I am satisfied that there are no good grounds for maintaining the anonymity of the arbitrators in this appeal." (Halliburton Company v. Chubb Bermuda Insurance Ltd [2020] UKSC 48)

"I consider, therefore, that the present appeal provides a good opportunity for this 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." (Pink Floyd Music Ltd v. EMI Records Ltd [2011] EWCA Civ 1429, §66).

“the principle of public justice is a very potent one, for reasons which are too obvious to need recitation, and in my judgement it will only be in truly exceptional circumstances that a taxpayer's rights to privacy and confidentiality could properly prevail in the balancing exercise that the court has to perform…These considerations serve to reinforce the point that in tax cases the public interest generally requires the precise facts relevant to the decision to be a matter of public record, and not to be more or less heavily veiled by a process of redaction or anonymisation. The inevitable degree of intrusion into a taxpayer's privacy which this involves, is in all normal circumstances, the price which has to be paid for the resolution of tax disputes through a system of open justice rather than by administrative fiat.” (HMRC v. Banerjee (No.2) [2009] EWHC 1229 (Ch), §§34 – 35).

“In deciding whether to grant the application, I have adopted the approach as stated in the Practice Guidance: ‘Derogations should, where justified, be no more than strictly necessary to achieve their purpose.’ Taking this approach, I have considered this application by addressing the following questions according to the degree of derogation involved:
(1) Whether a hearing in private is justified;
(2) If not, whether an anonymity order is necessary.” (D v. HMRC [2017] UKFTT 850 (TC), §69, Judge Poon).

“In my judgment the presumption of a public hearing is nowadays stronger that it might have been perceived even a few years ago.” (Moyles v. HMRC [2012] UKFTT 541 (TC), §12)

Open justice applies at the interlocutory stage

“Furthermore, that the principle of open justice applies in its full rigour at the interlocutory stage and not just at trial, is clear from the statement of the law by Lord Neuberger MR in the Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003.” (Gaiseley Properties Ltd v. Barclays Bank Plc [2013] EWHC 67 (Comm), §35).

Query whether lower threshold at preliminary hearing

“I recognise that the general public may be less legalistic than a tribunal or disciplinary body in making make the legal distinction between what is proved (or accepted) and what is merely alleged. For this reason, it might be right to keep decisions in preliminary hearings in what is in effect an alleged dishonesty case anonymised where there is risk to reputation.” (B v. HMRC [2014] UKFTT 256 (TC), §91, Judge Mosedale).

Truly exceptional to have a private hearing

Careful scrutiny even when application consented to

“The fact that HMRC do not oppose the application would seem, from the appellant’s representations, to lend support for such an application to be granted. I have, however, found it all the more important to stand back from the seeming consent, and to give heed to the warning expressed by Sir Christopher Staughton in Ex p P that ‘when both sides agree that information should be kept from the public, that was when the court had to be most vigilant’.” (D v. HMRC [2017] UKFTT 850 (TC), §73, Judge Poon).

Careful scrutiny even when application consented to

Two bases: common law necessity or protection of human rights

"[20] The principles are what matters rather than the facts. In the speech of Lord Carswell, with which their other Lordships agreed, it was made clear that first there are two legal bases upon which anonymity might be granted. First, under the European Convention on Human Rights and secondly, at common law.

[21] So far as the Convention is concerned, an order of anonymity would be required if there was a risk such as came within Art.2 or Art.3 , that is a risk to the applicant's life or a risk of serious injury; and potentially Art.8 , because disclosure of the identity of an applicant might amount to an unjustified interference with that applicant's personal and professional life.

...

[24] There may be an order made at common law where it is "necessary" because the applicant's fears that he or she may be put at risk by the revelation of his or her identity are based on reasonable grounds, and secondly that it is necessary in the public interest because the refusal of anonymity and screening would erode the ability of the applicant to perform his or her job in the future. Therefore both a perception of personal risk and a public interest are material." (Adebolajo v. MoJ [2017] EWHC 3568 (QB), Langstaff J)

Two bases: common law necessity or protection of human rights

Not a two stage test

"[23] It is right to record that the White Book does suggest in the notes at 39.2.14 that the Court undertake a two stage test: first a threshold test showing that the grant of anonymity was necessary; and secondly, if that threshold is passed, balancing the interests of the parties and the public interest in open justice.
[24] It appears that the notes in the White Book are based on what Turner J. said in Kalma v African Minerals Limited [2018] EWHC 120 (QB) at paragraph 29, namely that a threshold of seriousness was required before the court will undertake a balance of the competing interests to decide whether to make an order for anonymity. In Suez Fortune Investments v Theo Blake [2018] EWHC 2929 (Comm) at paragraphs 12 and 13 Teare J. said that the threshold test could only be met if the grant of anonymity was "necessary". As Mr Bates pointed out, the notes in the White Book 2020 at 39.2.14 also refer to the first part of the threshold test as being one of "necessity". In my judgment it is not helpful to require judges, when confronted with applications for anonymity under CPR 39.2(4) (which often have to be determined at short notice) to ask first whether a threshold of "necessity" has been passed before going on to carry out a balancing exercise of competing interests to determine whether an order for anonymity is "necessary" under CPR 39.2(4). This is because such a two stage test has the potential to create confusion by using "necessity" and "necessary" in different ways at different parts of the test. I agree that a Court may undertake an assessment of whether the application stands any prospect of success before carrying out a balancing exercise, but I do not consider that it is necessary to do so, nor do I consider that any failure to explain in the judgment that any such exercise has been carried out is a ground for setting aside the determination of the judge at first instance. In my judgment, when confronted with an application for anonymity pursuant to CPR 39.2(4), the Court should have regard to the relevant principles set out in the authorities referred to in paragraphs 17 to 21 above, and carry out the balancing exercise of the relevant interests under CPR 39.2 to determine whether "non-disclosure is necessary to secure the proper administration of justice and in order to protect the interests of that party or witness". This is what the judge did below." (XXX v. Camden LBC [2020] EWCA Civ 1468, Dingemans, McCombe, Moylan LJJJ)

Not a two stage test

Clear and cogent evidence required if based on risk to legitimate interest

"[35] Where an application for privacy is based on the justifications set out at Rule 32(2)(a) to (d), there will in practice be an onus on the applicant to produce cogent evidence. The FTT must consider that evidence and must carry out a balancing exercise between the various Articles of the European Convention on Human Rights which must be respected by the FTT by virtue of section 6 of the Human Rights Act 1988. In particular, there will often be a tension to be resolved in that balancing exercise between Article 6, which in this context provides a right to a public hearing (from which the applicant will in effect be seeking a derogation), and Article 8, which provides a right to respect for private and family life." (HMRC v. The Taxpayer [2024] UKUT 12 (TCC), Bacon J and Judge Thomas Scott)

“The burden of establishing any derogation from the general principle rests on the person seeking it, and ‘any departure must be supported by clear and cogent evidence’ (McKillen v Misland at [34]; para 13 of the Practice Guidance).” (D v. HMRC [2017] UKFTT 850 (TC), §80, Judge Poon).

Clear and cogent evidence required

- But not where based on prejudice to interests of justice (persuasive reasons still required)

"[36] However, Rule 32(2)(e) also provides the FTT with power to direct that a hearing should be held in private “if the Tribunal considers that…is justified… because not to do so would prejudice the interests of justice”. As Ms McCarthy pointed out, the wording referring to prejudice to the interests of justice is also found in Article 6, though we do not accept her submission that this means one should read across to Rule 32(2)(e) the specific qualifications and restrictions in that respect spelt out in Article 6.

[37] Where privacy is directed by the FTT in reliance on Rule 32(2)(e), the need for “cogent evidence” in the sense relevant where privacy is sought under paragraphs (a) to (d) is not directly applicable. However, that does not mean that the FTT can properly direct a hearing in private under Rule 32(2)(e) without rational and persuasive reasons for departing from the principle of open justice. It is critical in considering an application under paragraph (e) to keep in mind the presumption, set out in Rule 32(1), that all hearings before the FTT will be in public unless the FTT directs otherwise. Additionally, the FTT may only make a direction under paragraph (e) where it considers that a public hearing would (not might, or be likely to) prejudice the interests of justice." (HMRC v. The Taxpayer [2024] UKUT 12 (TCC), Bacon J and Judge Thomas Scott)

- But not where based on prejudice to interests of justice (persuasive reasons still required)

- Subjective fears can be taken into account

"[22] The principles which apply to a tribunal's common law duty of fairness towards the persons whom it proposes to call to give evidence before it are distinct and in some respects different from those which govern a decision made in respect of an article 2 risk. They entail consideration of concerns other than the risk to life, although as the Court of Appeal said in paragraph 8 of its judgment in the Widgery Soldiers case, an allegation of unfairness which involves a risk to the lives of witnesses is pre-eminently one that the court must consider with the most anxious scrutiny. Subjective fears, even if not well founded, can be taken into account, as the Court of Appeal said in the earlier case of R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855. It is unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence, the more so if that has an adverse impact on their health. It is possible to envisage a range of other matters which could make for unfairness in relation of witnesses. Whether it is necessary to require witnesses to give evidence without anonymity is to be determined, as the tribunal correctly apprehended, by balancing a number of factors which need to be weighed in order to reach a determination." (re Officer L [2007] UKHL 36)

"[19] CPR 39.4 recognises that orders for anonymity of parties and witnesses may be made. The common law has long recognised a duty of fairness towards parties and persons called to give evidence, see In Re Officer L [2007] UKHL 36; [2007] 1 WLR 2135, and balanced that against the public interest in open justice in specific cases. Under the common law test subjective fears, even if not based on facts, can be taken into account and balanced against the principle of open justice. This is particularly so if the fears have adverse impacts on health, see In Re Officer L at paragraph 22 and Adebolado v Ministry of Justice [2017] EWHC 3568 (QB) at paragraph 30." (XXX v. Camden LBC [2020] EWCA Civ 1468, Dingemans, McCombe, Moylan LJJJ)

- Subjective fears can be taken into account

Types of legitimate interests

- Risk to life

Human Rights Act approach

"[21] So far as the Convention is concerned, an order of anonymity would be required if there was a risk such as came within Art.2 or Art.3 , that is a risk to the applicant's life or a risk of serious injury; and potentially Art.8 , because disclosure of the identity of an applicant might amount to an unjustified interference with that applicant's personal and professional life.
[22] As to the risk to an applicant's life or risk of serious injury, Lord Carswell at para.20 of his speech in Re Officer L said this:
"…this positive obligation arises only when the risk is 'real and immediate'. The wording of this has been the subject of some critical discussion but its meaning has been aptly summarised in Northern Ireland by Mr Justice Weatherup in Re W's Application [2004] NIQB 67 at 17 where he said that:
'A real risk is one that this objectively verified and an immediate risk is one that is present and continuing'."
[23]It is, in my opinion, clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high..." (Adebolajo v. MoJ [2017] EWHC 3568 (QB), Langstaff J)

Statements of hypothetical risk not sufficient

"[28] The statements of such risk as I have are largely hypothetical, though there is one piece of evidence which goes beyond the purely hypothetical to suggest an evidence of greater risk and that is one threat which appears to have been given to one of the officers (though this has not in itself been verified as having any obviously direct relation to Adebolajo, it is said it might well have). This falls short of that objective verification of the risk which is necessary. Moreover, as I have already pointed out, the evidence suggests potential risk as opposed to a real risk which meets the words that Mr Justice Weatherup used. The risk is not present and immediate so far as the evidence is concerned, and I must go by the evidence." (Adebolajo v. MoJ [2017] EWHC 3568 (QB), Langstaff J)

Common law approach

"[30] However, I do take a slightly different view when it comes to the question of applying the relevant common law principles. Here, it seems to me, there is evidence from each of the officers, which in these circumstances I can credit as being the view of each officer who has given a statement, that they are fearful. This is a real fear, even if there no real risk has been verified objectively. The fact that each of three has taken antidepressants, has suffered from stress and that there has been evidence of an impact on their family life suggests to me, too, that they have subject to the unnecessary unfairness which Lord Carswell counselled against in para.22 of his speech." (Adebolajo v. MoJ [2017] EWHC 3568 (QB), Langstaff J)

- Risk of physical harm

Sufficient if there are rational grounds for supposition

“Her perceived vulnerability to physical attack stems from the nature of her job and the environment in which she works. She is known by name to her patients, and she works in a public place. I can see no rational grounds for supposing that publication of the judgment would place her at any increased risk of physical harm.” (HMRC v. Banerjee (No.2) [2009] EWHC 1229 (Ch), §37 – although reference to precise hospital where taxpayer worked removed).

“It is undisputed that various threats of a serious nature have been made, and that the Strathclyde Police have been compelled to offer advice and protection to several individuals involved in RFC’s affairs…Largely because of those threats the hearing before the First-tier Tribunal was held in private.” (Murray Group Holdings Ltd v. HMRC FTC/15/2013, §§5…6, Judge Bishopp).

“The reason [this decision] is anonymised is because it was agreed that the hearing would be in private on the basis that the taxpayer was a wealthy man who said that threats had been made against his wife and children and he was concerned about the increased security risks if details of his life were given at a public hearing.” (Businessman v. HMRC [2008] STC (SCD) 1151, §1).

But a stricter approach has been taken elsewhere in the judicial system:

"The use of the words 'some other public interest' indicates that Lord Diplock had in mind the protection of the public interest in the administration of justice rather than the private welfare of those caught up in that administration.” (R v. Newtonabbey Magistrates Court ex p. Belfast Telegraph Newspapers Ltd [1997] NI 309).

- Risk of physical harm

- Adverse effect on mental health

"[22]...It is unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence the more so if that has an adverse impact on their health. It is possible to envisage or arrange other matters which could make for unfairness in relation to witnesses." (re Officer L [2007] UKHL 36)

- Adverse effect on mental health

- Financial risk

Sufficient if there are real concerns

“Anonymisation is, in my view, in the interests of justice and, in the particular circumstances of this case, no wider public interest requires that the identity of the Appellant and the details of its financing arrangements be disclosed to the public…Specifically, my attention has been drawn to the fact that, were the Appellant’s creditors to get to know of its financial position (then and now), there is a risk that they might reduce or refuse their own credit facilities. The same goes for the Appellant’s banks and providers of discounting facilities and, in particular, others whom the Appellant might approach in the future. Moreover, were the Appellant’s financial position (then and now) to become known to existing and potential customers, they might reduce the amounts of work offered to the Appellant. I accept that those are real concerns in the present circumstances.” (Cuco v. HMRC [2013] UKFTT 121 (TC), Annex 1, §§2…3).

Disclosure of personal details not generally taken to increase risk of theft or financial harm

“I cannot believe that the brief details disclosed of her employment history and expenses ten years ago will in some way place her at increased risk of identity theft or financial harm.” (HMRC v. Banerjee (No.2) [2009] EWHC 1229 (Ch), §37).

- Reputational risk

Reputational risk to party is not good enough reason

"[74] At the hearing before us, we raised the question of whether, in light of the importance of transparency and open justice in courts and tribunals, the confidentiality in the Consultation Letter (and the other documents referring to it) should still be maintained, either in further proceedings before this Court or in the collective proceedings before the CAT. Our concerns arose because some weight was clearly placed on the Consultation Letter by the CAT. As we have indicated, it has also formed a part of our consideration of the issues that we have addressed in this judgment. We also have in mind that the Consultation Letter set out the CMA's provisional views and concerns on 28 November 2018 – well over five years ago – at the start of a consultation process that ended with the giving of undertakings by Apple that were published on the CMA website.
[75] For Apple, Mr. Piccinin KC referred to the decision of the Court of First Instance of the European Communities in Case T-47/04 Pergan Hilfsstoffe für industrielle Prozesse GmbH v European Commission ECLI:EU:T:2007:306. He contended that that case established an absolute right to protection of provisional findings by a regulator in competition cases, and he contended that a similar protection should be extended, by analogy to provisional findings by a regulator in a consumer case. We have substantial doubts that such contention is correct, not least because we fail to see how any such protection could be absolute; we also do not understand why there should be read-across between an EU competition case and a consumer case in the UK; and (in contrast to the position of the applicant in Pergan, who was not an addressee of the Commission's decision but was simply mentioned in the body of the decision), the Consultation Letter was addressed to Apple; and finally, if Apple disputed the CMA's provisional findings, it had the opportunity to contest them in enforcement proceedings (rather than give undertakings to the CMA as to its future conduct in lieu). We are also sceptical that the argument that disclosure might be reputationally embarrassing to an undertaking (here Apple) is relevant.
[76] However, the parties were not equipped to address argument on these matters at the hearing for permission to appeal, and no notice of the possibility that the Consultation Letter might be made public had been given to the CMA or to any representatives of the media who might have wished to address argument on it. In the circumstances, as we indicated at the hearing, we consider that this issue should be resolved for the future on a more considered basis, both in this Court and in the CAT where the collective proceedings are to be continued." (Apple Inc v. Gutmann [2024] EWCA Civ 702, Green and Snowden LJJ)

“It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice." (R v. Chief Registrar ex p. New Cross Society [1984] 1 QB 227 at 235).

“The justice system has to operate even-handedly; it cannot be right to accord the appellant different treatment just because he is in the public eye.” (D v. HMRC [2017] UKFTT 850 (TC), §93, Judge Poon).

“[The taxpayer] asked that the decision might be anonymised. Mr Rusling was concerned that he had been very foolish and he did not want the case to be seen by his competitors. Furthermore, he had been less than honest with his wife as he had made an additional payment of £40,000 of which she was aware…. we have no hesitation in refusing to anonymise the decision.” (Rusling v. HMRC [2014] UKFTT 692 (TC), §§3...5).

“The fact that a taxpayer is rich, or that he is in the public eye, do not seem to me to dictate a different approach; on the contrary, it may be that hearing the appeal of such a person in private would give rise to the suspicion, if no more, that riches or fame can buy anonymity, and protection from the scrutiny which others cannot avoid. That plainly cannot be right. There is in my view no good reason for a private hearing in this case, nor any basis on which I might properly direct an anonymised or redacted decision. Accordingly I refused the application.” (Moyles v. HMRC [2012] UKFTT 541 (TC), §14)

Risk to taxpayer’s professional reputation factor against anonymisation

“My conclusion is that this case, similarly to that in Mr A, concerns a taxpayer in an exceptional position, but that exceptional position, so far from justifying anonymity, positively favours full publication. Mr Chan wishes to hide alleged misdemeanours from the SRA, his clients and his potential clients. The Tribunal is here to administer justice: it is inimical to justice for the Tribunal to help Mr Chan keep from his professional body and his clients matters which even he thinks the SRA would consider relevant to his practice as a solicitor.” (B v. HMRC [2014] UKFTT 256 (TC), §88, Judge Mosedale).

Reputational risk to non-party is not generally good enough

"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.” (Scott v. Scott [1913] AC 417 at 463, Lord Atkinson).

“…in my judgment there is not some general exception to the principle of open justice, to protect non-parties from identification in proceedings to avoid the risk of reputational harm, which is really on analysis what Lord Pannick's submission on unfairness comes to…Those cases [Rustenburg Platinum Mines Ltd v. South African Airways, Joseph v. Spiller and Karpe v. The Financial Services Authority] seem to me to be an unreliable foundation for any general exception to the fundamental principle of open justice, such as that for which Lord Pannick contended, that where non-parties are caught up in allegations of wrongdoing, the court will protect them by some form of anonymisation.” (Gaiseley Properties Ltd v. Barclays Bank Plc [2013] EWHC 67 (Comm), §§46…50).

But other cases have taken a broader approach to fairness to non-parties:

“Given the seriousness of the allegations, and since neither CL nor MH have been represented at the trial, fairness requires that they be not named. I have made no findings against them personally.” (Joseph v. Spiller [2012] EWHC 2958 (QB), §140).

“At the start of the hearing of this reference, and following submissions from the press, this Tribunal issued a direction restricting the reporting of the names of “actual or prospective clients of UBS or any related party of such”. We have anonymised references to UBS clients (using the term Customer A, Customer B etc) save as regards those clients and clients’ companies that have already been identified through articles in the press.” (Karpe v. FSA [2012] UKUT B7 (TCC), §175)

- Unpleaded finding of dishonesty

"[49] In those circumstances, it was clearly wrong for the FTT to have made the findings they did of dishonesty on the part of Firm A. Such a finding could have had serious implications for Firm A as a professional firm of chartered accountants and it was given no opportunity to refute them." (Danpal v. HMRC [2023] UKUT 86 (TCC), Judge Herrington and Judge Bowler)

- Unpleaded finding of dishonesty

- Avoiding disclosure of mental illness

Sufficient if relevant to appeal in order not to dissuade appeals by persons with such illnesses

“Understandably, the appellant does not want her diagnosis to be public knowledge. Yet full decisions of this Tribunal are usually published to give other taxpayers an understanding of how the Tribunal applies the law. I could not make this decision without referring to her diagnosis because it is relevant to what I have to decide. While it is in the interests of justice being seen to be done that decisions are not ordinarily anonymised, in this case I considered that the appellant’s illness was an exceptional circumstance. This was because mental illness should not be a bar to challenging HMRC decisions, so it is right to grant anonymization of this decision, so other litigants with mental illness are not discouraged from appealing.” (Appellant v. HMRC [2017] UKFTT 839 (TC), §16, Judge Mosedale).

- Avoiding disclosure of mental illness

- Effect of publicity on evidence

Adverse effect of publicity on witness’s ability to give evidence must be endured

“Mr Bartlett also stated that the presence of the press would have a fettering (and hence adverse) effect on the appellant’s ability to give evidence. No doubt this is a sentiment shared by many witnesses, but it has to be tolerated and endured, as Lord Atkinson remarked in Scott v Scott at p 463.” (D v. HMRC [2017] UKFTT 850 (TC), §93, Judge Poon).

- Effect of publicity on evidence

Confidential information

Directions limited to minimum necessary to protect confidential information

“… it is almost invariably possible to conduct a hearing of this nature in public and in such a way as demonstrates adherence to the principle of open justice, while at the same time ensuring that truly confidential material is referenced on paper and does not enter the public domain. When cases of this nature arise, therefore, it is critically important that parties conducting them prepare documents (including submissions) in a way that facilitates that approach. Without being prescriptive but by way of example, this could involve placing confidential material in an annex which the court can readily identify and order not to be disclosed.” (Ambrosiadou v. Coward [2011] EWCA Civ 409, §54, Leveson LJ).

"[10] By notice dated 17 May 2023 the Appellant made an application pursuant to Rule 5(3) of the First Tier Tribunal (Tax Chamber) (Tribunal Procedure) Rules 2009 that confidential information (as defined and set out in an annex to the application) be:

(1) Redacted, prior to publication, if referred to in our judgment, and

(2) The subject of similar redaction in the event of an application by any third party for disclosure of documentation in the event that such documentation contains or contained confidential information (as defined).

[11] We considered the application as a preliminary issue at the start of the hearing and decided to grant the application with written reasons to follow.

[12] It is, of course, helpful that the Respondents consented to the application. However, that is not (as sometimes may be the case for other types of applications) sufficient to dispose of applications of this nature. This is because this sort of application engages not only the rights and interests of the parties, but also the general public who may have an interest in observing the proceedings (see for example the decision of the Court of Appeal in JIH v News Group Newspapers Ltd (rev 1) [2011] EWCA Civ 42).

[13] The starting point is that the principle of open justice is a fundamental aspect of English law and represents the very foundation upon which a free, open and democratic society is built. The general rule, therefore, is that all hearings must be in public (see Scott v Scott [1913] AC 417). This extends to both decisions or judgments of the Courts and Tribunals and any documents referred to or used in the hearing.

[14] However, the principle of open justice is not absolute. For example, Civil Procedure Rule (“CPR”) 39 .2(3)(c) provides that hearings can be in private where they involve confidential information, publicity would likely damage that confidentiality and it is necessary in the interest of justice to have the hearing in private.

[15] Applying these principles (by analogy if necessary) to the facts it is clear to us that (a) the information sought to be protected is confidential and commercially sensitive financial and business information and its publication would likely damage its confidentiality, (b) the information sought to be protected is limited in scope, (c) maintaining the confidentiality of the information sought does not detract from this Tribunal’s ability to provide a fully reasoned decision and (d), the balance, therefore, favours granting the application and it is in the interest of justice (or the overriding objective) to do so.

[16] We intend to give appropriate directions relating to any confidential information at the end of this judgment." (KRS Finance Ltd v. HMRC [2023] UKFTT 855 (TC), Judge Malek)

“There is no general exception to open justice where privacy or confidentiality is in issue (the Practice Guidance). The confidential information narrowly defined, and of which the appellant has a reasonable expectation to privacy, can be specified to ensure that it does not enter the public domain by procedural directions.” (D v. HMRC [2017] UKFTT 850 (TC), §117, Judge Poon).

Commercial information unlikely to be sensitive 13 years later

“So far as the protection of sensitive information was concerned, while this is always a concern of any court, it seemed to me to be unrealistic to think that disclosure of allegations about events back in 2000 could give rise to any issues of commercial sensitivity now, some 13 years later.” (HMRC v. Morrison [2013] UKUT 497 (TCC), §17, Lord Glennie).

Referring to agreement purporting to be confidential not sufficient

“Further, the fact that the parties to the Settlement Agreement had agreed that it should remain confidential cannot be allowed to prevail over the requirement for open justice.” (HMRC v. Morrison [2013] UKUT 497 (TCC), §17, Lord Glennie).

Confidential information

- Information relevant to competitors and competitiveness

Potentially relevant factor

"[147] The basis for the concern raised regarding poaching of staff from competitors was dealt with in Mr Gerko’s evidence. The FTT considered Mr Gerko’s evidence but it was not bound to accept it. The effect on competition and competitiveness is identified in Unwired Planet factor ii) as potentially relevant but needs to be examined “critically”. In our view, the need to examine the evidence critically reflects that principles of open justice are by their nature ones which involve matters of public interest which go beyond the particular parties’ respective individual interests (so, even if the other party agreed to the redaction that would not necessarily absolve the need of the tribunal to carefully consider whether redaction was justified)." (HFFX LLP v. HMRC [2023] UKUT 73 (TCC), Mellor J and Judge Raghavan)

Less relevant if information is out of date

[148] The FTT’s critical evaluation was that the information was several years out of date. That was a view we consider was open to the FTT to hold on the evidence. Mr Gerko’s evidence was that if the Special Capital information were published it would “provide competitors with the opportunity to exploit apparent disparities between members, while also giving an indication of base-line amounts that they would need to offer when making any approach”. Mr Gerko’s evidence made the point that profitability for the years 2010 to 2016 could be broadly derived, but it did not explain, in terms, how knowing that would better enable a competitor to poach staff some five years later in 2021. Given the bonus reallocations were performance related, and variable, there was no reason on the face of it to think a member’s performance would be considered like for like across a longer period and in relation to a different successor partnership." (HFFX LLP v. HMRC [2023] UKUT 73 (TCC), Mellor J and Judge Raghavan)

Confidentiality from other staff not relevant if they could access through lawyers

"[149] While it is said in addition that the FTT did not deal with the confidentiality as between the team members, it clearly did: it accepted HMRC’s argument the appellants were entitled to access the information through the lawyers if they wanted (at [334]). It was therefore saying the information was not confidential between them." (HFFX LLP v. HMRC [2023] UKUT 73 (TCC), Mellor J and Judge Raghavan)

Consider whether numbers necessary to understand decision

[150] Turning to the question of whether the relevant numbers sought to be redacted were necessary to understand the decision, the subject matter of the appeal was whether amendments should be confirmed or varied. It is not unreasonable, in our view, to consider that the extent to which amendments were being varied was something which was required in order to properly understand what the tribunal was doing. That is a legitimate factor to take into account (per note iii) of Unwired Planet). We would add the factor has particular resonance where the subject matter of the case concerns tax for the reasons Henderson J (as he then was) explained in HMRC v Banerjee (No. 2) [2009] EWHC 1229 (Ch)[7] at [35]:

“in tax cases the public interest generally requires the precise facts relevant to the decision to be a matter of public record, and not to be more or less heavily veiled by a process of redaction or anonymisation. The inevitable degree of intrusion into the taxpayer's privacy which this involves is, in all normal circumstances, the price which has to be paid for the resolution of tax disputes through a system of open justice rather than by administrative fiat.”

[151] Contrary to the appellants’ argument that the FTT ought not to have considered that the appellants should have known their figures would be disclosed, we consider it was open to the FTT to make that point. The point was in essence entirely consistent with the way the factor was explained in Unwired Planet: in the course of the particular litigation, in this case tax litigation, disclosure of figures relevant to an understanding of what a tribunal was doing with the closure notice and assessments before it would normally be expected to be made public. That did not beg the question, just as Birss J’s commentary on the factor he highlighted did not beg the question (in that in his example it might equally be the case that the patent litigant would also be making efforts to redact by making an application but it’s doing so would not alter the analysis).

[152] The point that the disclosure of figures was random insofar as it depended on whether HMRC had made an error in its original assessment figures does not take matters further. The figures are not really random but are predicated on the assumption that where an assessment is varied the tribunal needs to state what the variation is whereas that is not necessary where the amendment is simply confirmed. However, once the view is taken that open justice requires disclosure of the figures, then that does not make it any less right not to disclose but simply means the decision ought sensibly to include everyone’s amendment figures whether the amendments are confirmed or varied.

[153] Mr Yates made the point that the public will know that large sums of money are involved, and there is no objection to HMRC’s proposal (as indicated in the FTT’s record of HMRC’s submissions at [333]), that a global figure of tax payable as a result of the decision be included. However that only serves to highlight that if a redaction were made there might be a perception, as highlighted by the FTT President Judge Bishopp’s reasoning in Mr A v HMRC (see extract at [331] of FTT Decision) that the tribunal was not treating appellants where large sums of money were at stake similarly to cases involving smaller sums. While that point concerned hearings in private, the wider point regarding the tax system being operated even-handedly would apply just as much in relation to inroads into open justice created by redaction.

[154] We are not therefore satisfied the appellants have identified an error of law in the FTT’s refusal of the appellants’ redaction application. The appellants’ appeal against that refusal is accordingly dismissed." (HFFX LLP v. HMRC [2023] UKUT 73 (TCC), Mellor J and Judge Raghavan)

- Information relevant to competitors and competitiveness

Anonymisation

Similar approach to private hearing

“These cautionary remarks [from Lord Rodger in Re Guardian News, 2010] should be firmly in the foreground for any judge faced with an application for an anonymity order. With this in mind, the general approach as stated in the Practice Guidance is that anonymity will only be granted where it is strictly necessary, and then only to that extent...A more detailed guidance can be found in the 1999 Court of Appeal decision of R v Legal Aid Board, on appeal of Kay J’s decision in refusing to grant an anonymity order save on an interim basis. Lord Woolf, giving the leading judgment, summarised the approach adopted by Kay J at [21] and listed nine factors relevant for consideration in determining any such application. The factors include: the extent of the restriction on disclosure; the nature of the proceedings; the identity of the party seeking the order; the reasonableness of the claim; distinction between the plaintiff, defendant and a witness in such a claim.” (D v. HMRC [2017] UKFTT 850 (TC), §§122 – 123, Judge Poon).

Anonymisation of decision less likely if hearing not in private

“If, as I think, an application for the appeal to be heard in private would have been rejected, I agree with the Revenue that the application which Dr Banerjee now makes, following a public hearing, has even less chance of success. The preponderance of English authority supports the view that once material has been read or referred to in open court, it enters the public domain. It seems to me that there is a need for a clear and simple rule on this point, which reflects the principle of open justice, and which can be overridden, if at all, only in exceptional circumstances where the interests of justice so require.” (HMRC v. Banerjee (No.2) [2009] EWHC 1229 (Ch), §38).

Maintain on appeal where continuing threat or witness gave evidence on the understanding of anonymity

“Although there is no current evidence of possible threats against them I see no justification for exposing public servants carrying out their duty to a potential risk without good cause; none was identified and Mr Thornhill did not oppose their being afforded continuing anonymity. Second, certain other witnesses gave evidence only after having been assured of anonymity. Mr Thomson made the point that they might nevertheless have been willing to give evidence without anonymity, or might be prepared to waive it now; and he suggested that the matter might be revisited. Leaving aside the impracticability of asking the witnesses and evaluating their replies, it seems to me to be wrong in principle to offer anonymity to a witness as an inducement to his testifying, only to remove his anonymity later. I direct therefore that the identities of those witnesses which were concealed for this reason shall continue to be concealed.” (Murray Group Holdings Ltd v. HMRC FTC/15/2013, §29, Judge Bishopp).

Persons who did not commence proceedings may have a better claim to anonymity

"[29] This Court in ex p. Kaim Todner (at [8], p 978) also highlighted the relevancy of the position of the parties:
"A distinction can also be made depending on whether what is being sought is anonymity for a plaintiff, a defendant or a third party. It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. … If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation. In general, however parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule ". (my emphasis)" (Moss v. Information Commissioner [2020] EWCA Civ 580, Haddon Cave LJ)

Anonymisation

Anonymity to preserve that which the proceedings are seeking to protect

"[41] We deal first with futility. In principle, prejudice to the interests of justice could rationally be found to arise in two categories of futility relevant to this appeal. The first is where the subject-matter of the hearing is itself an application for privacy or anonymity, where a hearing in public would effectively prejudge the application and thereby render that hearing futile. The second is where a public and/or unanonymised hearing of (or decision on) a particular matter would render futile or nugatory an outstanding appeal against an existing decision regarding privacy and/or anonymity.

[42] Examples of the first category include EGC v PGF NHS Trust [2022] EWHC 1908 (QB) (“EGC”) and Burke and Hare. Examples of the second category include the decisions in EGC, JK v HMRC [2019] UKFTT 411 (TC) and (as regards anonymity) the hearing of this appeal." (HMRC v. The Taxpayer [2024] UKUT 12 (TCC), Bacon J and Judge Thomas Scott)

"[34] Derogations from open justice can be justified as necessary on two principal grounds: maintenance of the administration of justice and harm to other legitimate interests: Various Claimants -v- Independent Parliamentary Standards Authority [36]-[40].
i) In the first category (recognised expressly in CPR 39.2(3)(a)) fall the cases – such as claims for breach of confidence – in which, unless some restrictions are imposed, the Court would by its process effectively destroy that which the claimant was seeking to protect. There is no general exception to the principles of open justice in cases involving alleged breach of confidence/misuse of private information. However, it is well recognised that this type of case may well justify some derogation. The challenge is usually to ensure that the measures imposed are properly justified; that they are tailored to the facts of the individual case; and that they are proportionate, i.e. the least restrictive measure(s) necessary to protect the engaged interest: JIH [21]. In breach of confidence/privacy cases, where this issue arises frequently, the Court may be confronted with a choice between anonymising the party (which may permit the confidential/private information sought to be protected to be identified in open court) and refusing anonymity (in which case, the confidential/private information would have to be withheld – at least initially – from any public hearing/judgment): see discussion in Khan -v- Khan [88]-[89]. The Court must consider whether it can fashion a procedure (for example the use of confidential schedules to witness statements and statements of case) that will properly protect the confidential/private information during the case management and trial phases of the litigation: Various Claimants -v- Independent Parliamentary Standards Authority [47]. If it can, then the applicant may fail to demonstrate that further derogations from open justice are necessary.

ii) The second category consists of cases in which the anonymity order is sought on the grounds that identification of the party (or witness) would interfere with his/her Convention rights. In that case, the Court must assess the engaged rights and, if appropriate, perform the conventional balancing exercise from In re S: RXG [25]; XXX [20]-[21].

...

[56] In my judgment, the Claimant has failed to establish that an anonymity order is necessary to preserve that which he is seeking to protect in these proceedings. The Court can adopt various measures during the proceedings to ensure that this does not happen. If he is successful in his claim, and is granted an injunction, then providing the protective steps I have identified are deployed, the proceedings will not destroy the value of the injunction." (EGC v. PGF NHS Trust [2022] EWHC 1908 (QB), Nicklin J)

"[36] The authorities make clear, therefore, that derogations from open justice can be justified as necessary on two principal grounds: maintenance of the administration of justice and harm to other legitimate interests: R (Rai) -v- Crown Court at Winchester [2021] EWHC 339 (Admin) [39].

[37] In the first category fall cases – such as claims for breach of confidence – in which, unless some derogation is made from the principles of open justice, the Court would, by its process, effectively destroy that which the claimant is seeking to protect. Depending upon the particular facts, the Court may need either to anonymise the party/parties, or (if the parties are named) withhold the private/confidential information from proceedings in open court and in any public judgment: see discussion in Khan -v- Khan [2018] EWHC 241 (QB) [81]-[93]." (Various Claimants -v- Independent Parliamentary Standards Authority [2021] EWHC 2020 (QB), Nicklin J)

"[83] Anonymity orders (or a decision to sit in private) should only be made where it is necessary for the due administration of justice. In other words, if the relevant order was not made, the administration of justice would be frustrated:..." (Khan v. Khan [2018] EWHC 241 (QB), Nicklin J)

Anonymity to preserve that which the proceedings are seeking to protect

- Anonymity of application for anonymity

"[10] On 28 June 2022, I made an order directing that the Anonymity Action would be heard by a Judge in the week commencing 11 July 2022. I gave directions for the service of any further evidence in support of the Anonymity Application by the Claimant, and for evidence in answer by the Defendant. Pending the hearing of the Anonymity Application, I imposed temporary orders anonymising the parties, reporting restrictions and third-party access to the Court file. I granted the Claimant permission to issue the Claim Form using initials instead of the parties' names and giving the parties' addresses as care of their solicitors.

...

[53] ... For example, as soon as the Claimant was identified by his role in the context of this dispute, the existing publicity would immediately identify him by name and undermine totally the anonymity order. It was for this reason that the Anonymity Application had to be heard in private." (EGC v. PGF NHS Trust [2022] EWHC 1908 (QB), Nicklin J)

- Anonymity of application for anonymity

- Must be satisfied that not granting anonymity would prejudice the interests of justice

"[47] The fact that the situation in this case did not fall within either of the categories we have described did not mean that it was necessarily unjustified or irrational for the FTT to have directed open-ended privacy for all preliminary proceedings in reliance on Rule 32(2)(e). However, it did mean that the FTT should have recognised the material difference, and it should as a result have considered carefully whether a failure to make Direction 3 would have prejudiced the interests of justice. We do not consider that the FTT could rationally have concluded that it would." (HMRC v. The Taxpayer [2024] UKUT 12 (TCC), Bacon J and Judge Thomas Scott)

- Must be satisfied that not granting anonymity would prejudice the interests of justice

- Anonymity not to be granted for all interim proceedings pending outstanding anonymity application

"[48] The wording of Rule 32(2)(e) means that in order to answer that question the FTT needed to have considered what the position would have been if they did not make Direction 3. Mr Firth’s submissions assumed (in large part) that the counterfactual position would have been that the preliminary proceedings would have been in public. But that is not correct. Absent Direction 3, the Taxpayer the Taxpayer would have needed to make an application for privacy/anonymity for the relevant preliminary proceedings, supported by evidence. It is hard to see that such an outcome would have rendered Direction 4 futile, or otherwise prejudice the interests of justice, particularly given that Direction 4 related only to privacy in the substantive appeal.

[49] Further, an assessment of privacy for the purposes of preliminary proceedings would not in any event have prejudged the assessment to be made of privacy for the substantive hearing. The two decisions would not inevitably have been the same, as they would call for consideration of different facts at different times, and, therefore, different balancing exercises. Unlike cases such as EGC, it would not have been the case that by failing to make Direction 3 the very purpose of Direction 4 would have been defeated.

[50] We consider that the FTT also erred in not considering the practical consequences of Direction 3, and whether those consequences were proportionate to any risk to the interests of justice. We endorse the comments of Nicklin J in EGC, set out above, that where (as was said to be the case in this case) a derogation from the principle of open justice is justified on the basis of the interests of justice “the challenge is usually to ensure that the measures imposed are properly justified; that they are tailored to the facts of the individual case; and that they are proportionate…”.

[51] As we have observed, Direction 3 extended to all preliminary proceedings. A direction that a strike-out hearing, for example, be held in private would in our view be a significant derogation from the principle of open justice, and the assumption in Rule 32(1). The FTT should have explained why it thought such a blanket derogation was justified, by Direction 4 or otherwise." (HMRC v. The Taxpayer [2024] UKUT 12 (TCC), Bacon J and Judge Thomas Scott)

- Anonymity not to be granted for all interim proceedings pending outstanding anonymity application

Anonymisation of 3rd party names in a decision

- Granted in respect of media sensitive third parties of incidental relevance

"[19] The third parties are not parties to this appeal. Save for the Project Manager, whose managing director Mr Frearson provided a witness statement and gave evidence before us, none of the third parties have appeared before us. Reference to these third parties is incidental to the appeal in that their names are included in a number of the exhibits. We have carefully considered the extent to which the identity of the third parties has already been disclosed in publicly available documents. We are not satisfied that they have, with one exception in respect of the Project Manager who was named in Wardle v HMRC [2022] UKFTT 158 (TC) ("Wardle 2") at §6. In particular, we accept the Appellant and Mr Frearson's evidence that confidentiality agreements were signed before Financial Close, albeit we have not seen these agreements. We also accept the Appellant's submission that the identity of the third parties has no bearing on our decision, that anonymity of the third parties would not impede a reader's understanding of the decision and, consequently, that the interests of open justice would not be adversely impacted by anonymisation. We also considered the overriding objective, Rule 2 of the Rules. In all of the circumstances, we allow the Anonymity Application and the third parties will be referred to by the agreed Generic Party Names (as proposed in the document provided by the Appellant) in this decision, including (for consistency) the Project Manager." (Wardle v. HMRC [2024] UKFTT 543 (TC), Judge Newstead Taylor)

- Granted in respect of media sensitive third parties of incidental relevance

Privacy before tax is assessed

"[102] No one doubts the importance of the principle of open justice but the above authorities and the Practice Guidance were concerned with the typical judicial hearing, in which a court or tribunal adjudicates on a dispute between parties. As I have set out earlier, the nature of the process under Sch. 36 to the 2008 Act is entirely different; it consists of the judicial monitoring of a step in an investigation into the affairs of a taxpayer by HMRC.
[103] Of more direct relevance is rule 32, which provides that, subject to the following paragraphs, all hearings must be held in public. It is important to appreciate that this is not only about the taxpayer or the third party concerned. If Mr Firth is right, this provision would give all members of the public, including members of the media, the right to attend hearings of the present kind.
[104] In my view, this is fundamentally inconsistent with the nature of the scheme which Parliament has created. If and insofar as it is necessary to do so, it is clear that one or more of the exceptions in rule 32(2) would apply in the vast majority of such cases: for example, a hearing will usually have to be in private in order to maintain the confidentiality of sensitive information (para. (c)); or to protect a person's right to respect for their private life (para. (b)); or, more generally, because it would prejudice the interests of justice (para. (e)).
[105] In this context it must be recalled that the private affairs of taxpayers will be discussed at this preliminary stage of an investigation. Very often it would not be in the public interest for those to be discussed in public.
[106] Furthermore, it must be recalled that sometimes the investigation will end in no further action being taken, for example because the position of the taxpayer is vindicated. There would be a real risk of injustice if in the meantime questions had been raised in public over whether they had, for example, been illegally avoiding or evading tax when they had not in fact been doing so." (Kandore Limited v. HMRC [2021] EWCA Civ 1082, Singh, Underhill, Simler LJJJ)

Query whether there is an analogy with criminal investigation

"[108] The presumption of innocence is a legal presumption applicable to criminal trials. In that context the presumption weighs heavily in the directions that a jury is given or in the self-directions that a judge sitting alone applies. However, the context here is different. In this context the question is how others, including a person’s inner circle, their business or professional associates and the general public, will react to the publication of information that that person is under criminal investigation. All the material which we have set out between paras 80-99 above now admits to only one answer, consistent with judicial experience, namely that the person’s reputation will ordinarily be adversely affected causing prejudice to personal enjoyment of the right to respect for private life such as the right to establish and develop relationships with other human beings. Accordingly, we reject the submission that a general rule or starting point is unsound because it significantly overstates the capacity of publication of the information to cause reputational and other damage to the claimant given the public’s ability and propensity to observe the presumption of innocence.

...

[146] The courts below were correct to hold that, as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation and that in all the circumstances this is a case in which that applies and there is such an expectation. We would dismiss this ground of appeal." (Bloomberg LP v. ZXC [2022] UKSC 5)

Privacy before final trial

"[34] The crucial point here is that the FTT is different from the courts. It is a tribunal of first instance in which tax disputes between the citizen and the state are resolved. The very assertion that CPR 5.4C(1) is an “expression of the principle of open justice” points to the conclusion that the rules of law applicable to that principle are paramount, and should not be sidestepped or subverted by the inappropriate direct “reading across” of CPR 5.4C(1) into the FTT as effectively giving rise to a free-standing right, divorced of any requirement to consider whether its effect in the FTT would be in accordance with the principle of open justice. As Judge Sinfield acknowledged in Aria, the most that can be provided by reference to the CPRs is “helpful guidance”.

[35] One important difference between the FTT and the courts is that CPR 5.4 provides for a publicly accessible register of all claims issued out of a court, which any member of the public may search upon payment of the relevant fee. This is significant. Without it, there would be no way for anyone to find out about the existence of a court case or, in practice, exercise their rights under CPR 5.4C. CPR 5.4 is an integral part of the overall scheme. The FTT has no equivalent to CPR 5.4; it does not make information about appeals lodged with it publicly available, and there has been no suggestion that it ought to do so by analogy to CPR 5.4 (though in the absence of such publication, any third party right of access to pleadings in such appeals is useless except where there are special circumstances, such as in the present case where the existence of the appeal became public by the inclusion of reference to it in High Court pleadings). It is easy to see why: citizens rightly consider their tax affairs to be private until they are being formally adjudicated on in public [4]. In passing, it is worth noting that the Upper Tribunal also publishes a list of appeals notified to it; however in relation to tax appeals (as they will almost invariably already have been the subject of a published decision in the FTT) issues of confidentiality do not arise in the same way in the Upper Tribunal as they do in the FTT." (Cider of Sweden v. HMRC [2022] UKFTT 76 (TC), Judge Poole)

Privacy before final trial

Privacy of third parties referred to adversely in proceedings

Article 8 breached where third party had no notice

"[22] Del Campo was a teacher accused by a colleague of workplace harassment. The colleague, having failed to obtain satisfaction by complaining to the education authorities, brought proceedings against the regional government for failure to prevent the alleged bullying and harassment. In a public judgment which referred extensively to the claimant by name the court upheld the claim and ordered the authorities to pay compensation. The applicant had not been a party or witness to the domestic proceedings, nor was he even aware of them until the media reported on the judgment. His attempts to have the decision annulled or to join the proceedings in Spain failed so he applied to the European Court of Human Rights which found a violation of his Article 8 rights: (2019) 68 EHRR 27.
[23] The Court's decision can be fairly summarised in this way: (1) the facts fell within the scope of Article 8 as the inclusion of the applicant's name in the judgment was capable of adversely affecting his enjoyment of private and family life; (2) the interference was in accordance with the law because the inclusion of the applicant's name pursued the public interest in ensuring the transparency of court proceedings and thereby the maintenance of public confidence in the courts; (3) the domestic court's reasoning may have pursued several of the legitimate aims in Article 8(2); but (4) the portrayal of the applicant's conduct in an "authoritative judicial ruling" stigmatised the applicant and could have a major impact, including on his reputation; and (5) domestic law provided a range of measures to avoid or mitigate this but the applicant had been afforded no opportunity to seek such measures nor had the court addressed the question; (6) in these circumstances the disclosure of his name was "not supported by any cogent reasons" nor accompanied by "effective and adequate safeguards"." (R (oao Marandi) v. Westminster Magistrates' Court [2023] EWHC 587, Warby LJ)

"[49] The Court is therefore of the opinion that the disclosure of the applicant's full name in the High Court of Justice's judgment coupled with the statement of his acts as part of its own reasoning was not supported by any cogent reasons. As the Constitutional Court pointed out (see paragraph 19 above), Law 30/1992 made no mention of identifying the public official who had caused the damage, nor did it make the liability conditional upon establishing the public official's negligence, fault or intent. This was not even required, it having been sufficient to prove the damage and its link with the functioning of the public service. In this connection, the Court reiterates that the protection of personal data is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life (see Z v. Finland , § 95, and C.C. v. Spain , § 31, both cited above).
[50] The Court also observes that under the relevant Spanish law (see paragraphs 20-24 above), the High Court of Justice had a discretion to omit mentioning any names in the judgment permitting the identification of the applicant or to restrict publication of the judicial proceedings for reasons of public policy or for the protection of rights and freedoms. Moreover, access to the text of a judgment, or to certain matters therein, could be restricted when any person's right to private life was affected.
[51] Hence, the High Court of Justice had the ability to adopt protective measures to preserve the applicant's anonymity and decide of its own motion not to disclose the applicant's identity or to remove identifying information in protection of his rights and freedoms. This could have been achieved by, for instance, referring to him simply by his initials. Such a measure would have to a great extent limited the impact of the judgment on the applicant's right to reputation and private life. It is not apparent to the Court why the High Court of Justice did not take measures to protect the applicant's identity, particularly given that he was not a party to the proceedings and had not been summoned to appear in them.
[52] The Court points out that the practice of refraining from disclosing the identity of certain individuals in judicial decisions is also followed by the Constitutional Court of Spain itself (see paragraph 24 above). The Court also follows the same practice. Although the general rule is that all documents shall be accessible to the public, the President of the Chamber can decide otherwise by restricting public access to a document or to any part of it where "the protection of the private life of the parties or of any person concerned so require" (Rule 33 of the Rules of Court). Moreover, the Court may authorise anonymity or grant it of its own motion (Rule 47 § 4 of the Rules of Court)." (Del Campo v. Spain Apn 25527/13, decided 6 November 2018)

Article 8 not breached where third party had notice

"[44]...(6) Mr Del Campo knew nothing of the case in which he was accused of serious wrongdoing. He had no forewarning at all of the findings to be made against him, which came out of the blue after the judgment had been given. He had no chance to offer any evidence nor to make any other representations to the court, which named him in a public judgment without itself addressing the question of whether this was necessary, appropriate or proportionate. By contrast, the claimant in this case was forewarned in advance of the substantive hearing. He had and took the opportunity to apply for anonymity. He had the chance to put in evidence in support of that application and to some extent he took advantage of that too. He secured an anonymity order. He had the opportunity to attend the trial of the forfeiture proceedings or have someone do so on his behalf. We do not know if he did so, or if he made any attempts to provide relevant evidence. We have not been told that he did. He also had a full and fair opportunity to press for the continuation of anonymity after judgment was delivered. There was a three-month window of opportunity in which to adduce evidence in support of his argument at that stage. He had a half-day hearing and received a reasoned judgment on the issue. These considerations amply justify the judge's conclusion that Del Campo is distinguishable on its facts and, implicitly, that naming this claimant would not be procedurally unfair." (R (oao Marandi) v. Westminster Magistrates' Court [2023] EWHC 587, Warby LJ)

Privacy of third parties referred to adversely in proceedings

Anonymity/confidentiality preserved pending appeal

"[66] I consider, therefore, that the present appeal provides a good opportunity for this 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.
[67] The fact that the first instance judge granted or refused to permit a private hearing or anonymisation cannot be conclusive of such issues in the Court of Appeal (although the judge's refusal of such relief will, in most cases, render any subsequent application on appeal pointless). A first instance judge's decision on such an issue self-evidently does not bind the Court of Appeal, and cannot determine how an appeal in this court proceeds. However, this 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.
[68] In a case where permission to appeal is required from this court, then, 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. If another party to such an appeal wants a private hearing or anonymisation, or in a case where permission to appeal has been granted below, if any party has such a wish, the party concerned should make an appropriate written application to this court. 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.
[69] Of course, particularly 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." (Pink Floyd Music Limited v. EMI Records Limited [2010] EWCA Civ 1429, Lord Neuberger MR)

"[63] The appeal by HMRC having been allowed, this decision will initially be published in anonymised form. Thereafter:

(1) The decision will remain in anonymised form if permission to appeal the decision is granted by either this Tribunal or the Court of Appeal, subject to paragraph (2).

(2) If (i) time for applying to the Court of Appeal for permission to appeal expires without any such application having been made, or (ii) both the Tribunal and the Court of Appeal refuse permission to appeal, or (iii) the onward appeal(s) (if any) are finally determined against the Taxpayer, then the decision will be republished in unanonymised form on the expiry of two weeks after the occurrence of (i), (ii) or (iii), as relevant, subject to any further application that may be made to the Tribunal by the parties during that two-week period.

[64] The parties have liberty to apply for further directions." (HMRC v. The Taxpayer [2024] UKUT 12 (TCC), Bacon J and Judge Thomas Scott)

"[155] Pending resolution of any permission to appeal application on this point, the redaction kept in place by the FTT pending this appeal should remain in force so as to avoid undermining the purpose of any onward appeal from our decision on this point.

[156] The appellants are directed to notify the FTT if no permission to appeal application challenging our decision to uphold the FTT’s refusal is made by the appellants within the relevant one month time limit, in order that the FTT may then publish an unredacted version of the appendix to its decision." (HFFX LLP v. HMRC [2023] UKUT 73 (TCC), Mellor J and Judge Raghavan)

"[2] For reasons that are explained in a judgment handed down in private today, I have refused the Anonymity Application. In the ordinary way, that would lead to the publication of the judgment and the identification of the parties. However, the Claimant has sought permission to appeal. I have refused that application, as I do not consider that the proposed grounds of appeal have a real prospect of success and there is no other compelling reason why permission to appeal ought to be granted. The Claimant can renew his application for permission to appeal to the Court of Appeal. To preserve the position, pending any renewed application, the ring must be held. That means that my judgment refusing the Anonymity Application must remain private until such time as any appeal has been finally resolved. This shortened public judgment is to ensure that the Court explains as much about the Anonymity Application as is possible in the interests of open justice whilst ensuring that position is preserved pending any appeal." (EGC v. PGF NHS Trust [2022] EWHC 1908 (QB), Nicklin J)

Anonymity/confidentiality preserved pending appeal

Application to publish decision

See P1: Nature of Tribunal's decision

Application to publish decision

M27: Anonymity and private hearings

Tribunal powers and duties

Order prohibiting disclosure or publication

Direction that hearing or part is in private

Drafting of decision not to undermine hearing in private

Application should be made and determined as early as possible

Public hearing is a constitutional principle of fundamental importance

Open justice: reasons for

Open justice applies to all tribunals

Two purposes: public scrutiny of the way courts decide cases and to understand how the justice system works

Truly exceptional to have a private hearing

Open justice applies at the interlocutory stage

Query whether lower threshold at preliminary hearing

Careful scrutiny even when application consented to

Two bases: common law necessity or protection of human rights

Not a two stage test

Clear and cogent evidence required if based on risk to legitimate interest

- But not where based on prejudice to interests of justice (persuasive reasons still required)

- Subjective fears can be taken into account

Types of legitimate interests

- Risk to life

Human Rights Act approach

Statements of hypothetical risk not sufficient

Common law approach

- Risk of physical harm

Sufficient if there are rational grounds for supposition

But a stricter approach has been taken elsewhere in the judicial system:

- Adverse effect on mental health

- Financial risk

Sufficient if there are real concerns

Disclosure of personal details not generally taken to increase risk of theft or financial harm

- Reputational risk​

Reputational risk to party is not good enough reason

Risk to taxpayer’s professional reputation factor against anonymisation

Reputational risk to non-party is not generally good enough

But other cases have taken a broader approach to fairness to non-parties:

- Unpleaded finding of dishonesty

- Avoiding disclosure of mental illness

Sufficient if relevant to appeal in order not to dissuade appeals by persons with such illnesses

- Effect of publicity on evidence​

Adverse effect of publicity on witness’s ability to give evidence must be endured

Confidential information

​

Directions limited to minimum necessary to protect confidential information

Commercial information unlikely to be sensitive 13 years later

Referring to agreement purporting to be confidential not sufficient

- Information relevant to competitors and competitiveness

​

Potentially relevant factor

Less relevant if information is out of date

Confidentiality from other staff not relevant if they could access through lawyers

Consider whether numbers necessary to understand decision

Anonymisation

Similar approach to private hearing

Anonymisation of decision less likely if hearing not in private

Maintain on appeal where continuing threat or witness gave evidence on the understanding of anonymity

Persons who did not commence proceedings may have a better claim to anonymity

Anonymity to preserve that which the proceedings are seeking to protect

- Anonymity of application for anonymity

- Must be satisfied that not granting anonymity would prejudice the interests of justice

- Anonymity not to be granted for all interim proceedings pending outstanding anonymity application

Anonymisation of 3rd party names in a decision

- Granted in respect of media sensitive third parties of incidental relevance

Privacy before tax is assessed​

​

Query whether there is an analogy with criminal investigation

Privacy before final trial

Privacy of third parties referred to adversely in proceedings

Article 8 breached where third party had no notice

Article 8 not breached where third party had notice

Anonymity/confidentiality preserved pending appeal

Application to publish decision

- Reputational risk

- Effect of publicity on evidence

Privacy before tax is assessed