Three Rivers District Council & Ors v The Bank Of England

Open justice is the default for significant civil litigation. A court should keep a judgment private only in an exceptional case where that is necessary in the interests of justice. It must balance the public interest in transparent proceedings against a witness’s private interest in confidential medical information. Public interest may prevail where litigation concerns a public body, serious allegations and a witness materially involved in the issues. A short, certain delay may be allowed so the witness can notify chosen persons, but an indefinite or event-dependent embargo is inappropriate, particularly where secrecy may itself generate speculation.

The Court of Appeal heard an appeal by BCCI and the other claimants from a High Court case-management decision, made on the Bank’s application, to curtail cross-examination of the Bank’s witness, Mr Quinn. The appeal argument had been heard in private, but the court reserved the question whether its judgment should be made public.

The Bank sought continued privacy and an order under section 12(3) of the Contempt of Court Act 1981, relying on confidential medical information concerning Mr Quinn. The claimants were neutral on publication. The central issue was whether the public interest in open justice outweighed Mr Quinn’s private interest and, if so, whether a short postponement was justified.

Disposition. Lord Justice Rix refused the application that the judgment remain private and that an embargo be imposed under section 12(3) of the Contempt of Court Act 1981. Mr Justice Rimer agreed with the proposed order and reasons. The judgment was not to become public before the close of Friday 22 July 2005.

1. Open justice. CPR39.2(3)(c) permits an otherwise public hearing to be held in private where it involves confidential information and publicity would damage confidentiality. That jurisdiction did not determine whether the judgment should remain private. The present litigation was prima facie public because it was large and important, involved the Bank of England as a public body, concerned serious allegations, and raised matters of public concern. The importance of public justice was supported by Scott v Scott [1913] AC 417 and the summary of those principles in R v Chief Registrar Friendly Societies, ex parte Newcross Building Society [1984] QB 177.
2. Balancing interests. Mr Quinn’s medical condition was personal and its disclosure caused him distress. However, he was a former senior Bank officer and a material witness on issues central to the litigation, not an incidental witness. The public interest in knowing the reasons for the court’s decision outweighed his private interest in confidentiality. The court also considered that secrecy could generate speculation.
3. Earlier authority. In re Trusts of X Charity [2003] EWHC 257 (Ch) [2003] 1 WLR 2751 did not govern the application. It concerned a rules-prescribed private hearing in an essentially administrative jurisdiction, unlike the public trial in the present litigation. The Article 6 issue considered there was not in issue here.
4. Temporary delay. A conditional delay until the medical condition entered the public domain would be uncertain and could expose the parties to contempt proceedings. A short and definite period was reasonable to allow Mr Quinn to contact persons whom he wished to inform. Five days was considered sufficient, but the court allowed seven days, extended to the next non-trial day. A delay until the end of cross-examination in August would have gone too far.

• Court of Appeal (Civil Division) — heard the appeal from the High Court and ruled that the judgment should not remain private, while allowing a short publication delay: [2005] EWCA Civ 933.
• High Court of Justice, Queen’s Bench Division, Commercial Court — the trial judge had curtailed cross-examination of the Bank’s witness, Mr Quinn, on the Bank’s application. No citation for that decision is stated in the judgment.