HM Revenue & Customs v Banerjee

The principle of open justice ordinarily outweighs a taxpayer’s limited privacy interest in personal financial information disclosed during a tax appeal. A taxpayer has a reasonable expectation of privacy in financial and fiscal affairs, engaging Article 8, but anonymity will be justified only in truly exceptional circumstances. Once information has been read or referred to in an open hearing, it will generally enter the public domain. The touchstone is whether the hearing was public, not whether members of the public attended or whether publicity followed. The court should also avoid orders which cannot be policed or which create confusion in reporting. Irrelevant identifying detail may, however, be removed where this does not impair the public understanding of the decision.

HM Revenue and Customs appealed to the High Court from a decision of the General Commissioners concerning the deductibility of Dr Banerjee’s employment-related expenses. The appeal had been heard in public, and no application for privacy or anonymity had been made before or during the hearing.

After judgment had been circulated in draft, Dr Banerjee applied for the judgment to be anonymised and sought a direction preventing HMRC from disclosing information likely to identify her. She relied on the privacy and confidentiality of her tax affairs, professional concerns and personal vulnerability. The central issue was whether anonymity could properly be ordered after a public hearing, and whether the circumstances justified departure from open justice.

1. Application refused. The application to anonymise the judgment and the proposed supplemental direction were dismissed. The court nevertheless removed a specific reference to the hospital where Dr Banerjee worked because that detail was irrelevant to the tax dispute.
2. The court had jurisdiction before the hearing to order a private hearing where confidential personal financial information was involved and publicity would damage confidentiality. However, the common-law principle of open justice and Article 6(1) decisively outweighed the limited privacy interference in this case. A taxpayer’s financial and fiscal affairs ordinarily engage Article 8(1), but privacy will prevail against open justice only in truly exceptional circumstances.
3. Tax disputes commonly involve a wider public interest. In particular, the precise facts relevant to the deductibility of employment expenses may have significance for many taxpayers. That public interest normally requires the facts supporting the judgment to remain publicly available.
4. After material has been read or referred to in open court, it generally enters the public domain. The relevant criterion is that the hearing was public, rather than whether anyone attended or whether the information subsequently attracted publicity. The court should therefore be slow to grant retrospective anonymity after an open hearing.
5. Practical considerations reinforced the result. An anonymised judgment alongside an unredacted case stated, unrestricted third-party reporting and the continuing availability of a transcript would create confusion and an order which could not effectively be policed. The proposed restrictions would therefore risk bringing the administration of justice into disrepute.

1. High Court (Chancery Division) — HMRC’s appeal from the General Commissioners had been heard in public. The present judgment refused the respondent’s subsequent application for anonymity and a supplemental reporting direction.