Shuldham, Re

The open justice principle may yield only where privacy or anonymity is necessary, not merely convenient or desirable. The burden rests on the applicant to establish that the case is exceptional and that publicity would cause sufficiently serious damage, such as a significant denial of access to justice. The availability of confidential information does not automatically justify a private hearing. The court must consider the nature and importance of the information, the likely damage, and protective measures short of privacy. Procedural rules identifying categories of hearings that may be private do not create an entitlement to privacy. Applications made before the nature of the substantive hearing is known should generally be approached with caution.

Mr Shuldham sought, under Part 8, orders that a proposed uncontested rectification claim concerning a long-term lease be heard in private and that the parties, persons, trusts and properties involved be anonymised. The proposed scheme involved family property, inheritance-tax planning, confidential financial information and a minor beneficiary. The application was opposed in substance by the need to notify HMRC, which might contest the rectification claim. The central issues were whether privacy or anonymity was necessary under the open justice principle, Article 6 and Article 8 of the Convention, and CPR Part 39.2.

1. The application was dismissed. The court refused both a private hearing and anonymity. The applicant had not established that either order was necessary at the preliminary stage.
2. The governing principle was the open administration of justice stated in Scott v Scott [1913] 417. Privacy depends on necessity, not convenience or expedience. The burden lies on the party seeking departure from open justice to show that publicity would cause sufficiently serious damage, amounting to a significant denial of access to justice or otherwise making justice impossible.
3. CPR Part 39.2 and Practice Direction 39A did not confer an automatic right to a private hearing. The word “may” in CPR Part 39.2(3), and the direction that hearings are initially listed privately, required the court to exercise its judgment consistently with Article 6, Article 8 and the common-law principles.
4. Confidential financial information did not justify privacy merely because disclosure would damage confidentiality. The information was expressed at a high level, and suitable protective measures could be considered by the trial judge. The unsubstantiated risk that publicity might prompt unjustified proceedings against family members was insufficient. Any improper attempt to pursue family assets could be addressed when it occurred.
5. The child-protection exception did not apply. Although XB was a minor, the relevant interest would not arise until 2040, when he would no longer be a child, and the evidence did not show any risk of harm. The exception concerning defeat of the object of the hearing was also inapplicable because rectification could be achieved in public. The trust-administration exception could not presently be relied upon because the claim might be contested by HMRC.
6. For similar reasons, anonymity was not necessary under CPR Part 39.2(4). The trial judge would decide whether particular confidential information required protection and what measures were appropriate.