R (Willford) v. Financial Services Authority

The Court of Appeal considered an application to publish its judgments in anonymised and redacted form in proceedings in which the Financial Services Authority had given a Decision Notice under section 67 of the Financial Services and Markets Act 2000. The court restated the primacy of the principle of open justice and the requirement that any derogation (including anonymisation and redaction) be justified by cogent evidence and be strictly necessary for the proper administration of justice. Applying the guidance in Pink Floyd and the Neuberger report, the court concluded there was no positive evidence of significant harm to the respondent and that the proposed redactions were extensive and went to the heart of the judgments. Because the respondent had brought the matter into the public forum by seeking judicial relief, and because the primary object of the proceedings was to test the FSA's procedure and quash the Decision Notice to permit reconsideration, anonymisation and redaction were not strictly necessary and the application was dismissed.

Background and procedural posture:

• The FSA appealed against an order of Silber J quashing a Decision Notice given under section 67 of the Financial Services and Markets Act 2000 ([2012] EWHC 1417 (Admin)). The hearing before Silber J had been conducted in private and his judgment published in a redacted and anonymised form.
• At the Court of Appeal hearing the FSA requested the appeal be heard in private; the court declined but made an interim order prohibiting identification of the respondent until further notice. Draft judgments were provided to the parties, and the respondent applied for those judgments to be published in a redacted and anonymised form to protect his identity.

Nature of the application: The respondent sought anonymisation and redaction of the Court of Appeal's judgments to avoid disclosure of his identity arising from the public disclosure of the court proceedings, asserting that disclosure would cause irreparable damage to his professional reputation and that statutory provisions governed disclosure of FSA investigations.

Issues framed by the court:

• Whether the principle of open justice required publication of judgments in full without identifying the parties.
• Whether there were overriding countervailing considerations of public interest or justice requiring anonymisation or redaction.
• Whether anonymisation and redaction were strictly necessary to enable the court to grant effective relief or to secure the proper administration of justice.

Court's reasoning: The court emphasised that open justice is a fundamental constitutional principle, not absolute, and that derogations require clear and cogent evidence and must be strictly necessary. The court relied on the analysis in Pink Floyd and the Neuberger report that anonymisation in the Court of Appeal will be permitted only if strictly necessary. It concluded there was no positive evidence of significant harm to the respondent; the proposed redactions were extensive and would undermine the transparency required by open justice; and once the respondent invoked the court's jurisdiction he had placed the matter in the public forum. The primary object of the judicial proceedings was to test the legality of the FSA's procedure and to quash the Decision Notice so the FSA could reconsider, not to protect the respondent's privacy. On these bases the court dismissed the application for anonymisation and redaction of its judgments.

The judgment does not state the Court of Appeal's final determination of the substantive appeal against the quashing order by Silber J.

Not stated in the judgment.

Appeal from the High Court of Justice, Queen's Bench Division (Administrative Court), Silber J, [2012] EWHC 1417 (Admin) to the Court of Appeal, [2013] EWCA Civ 674. The Court of Appeal determined the application for anonymisation and redaction and refused it; the judgment does not state the final disposition of the substantive appeal.