Willford, R (On the Application Of) v Financial Services Authority

The principle of open justice requires civil proceedings and judgments to be conducted and published openly, normally including the parties’ identities.

Anonymisation or redaction is justified only where, and to the extent, strictly necessary for the proper administration of justice. Clear and cogent evidence is required. A party who invokes the court’s assistance generally brings the dispute into the public forum, despite confidentiality in the underlying proceedings. The possibility of embarrassment or professional-reputation damage does not, without evidence of significant harm, establish the necessary justification.

The Financial Services Authority appealed against an order of Silber J quashing a Decision Notice issued under section 67 of the Financial Services and Markets Act 2000: [2012] EWHC 1417 (Admin). The High Court proceedings had been conducted privately and steps had been taken to protect the respondent’s identity.

On the appeal, the Court of Appeal declined to sit in private but temporarily prohibited identification. The respondent then sought publication of the judgments in redacted and anonymised form pending any further appeal. The central issue was whether that derogation from open justice was strictly necessary in the interests of justice.

Application dismissed. The respondent’s application for the Court of Appeal’s judgments to be published in redacted and anonymised form was unanimously rejected.

1. The starting point was the constitutional principle of open justice. Proceedings should be conducted and determined in public, and judgments should ordinarily be published in full without concealing the identities of the parties. The principle is not absolute, but any derogation must be justified by justice or another countervailing public interest.
2. Anonymisation and redaction are derogations requiring clear and cogent evidence. They may be ordered only where, and to the extent, strictly necessary to secure the proper administration of justice. The court must scrutinise the proposed derogation carefully and ensure that it goes no further than necessary (paras [5]–[9]).
3. The decision of the first-instance judge on anonymity was not binding on the Court of Appeal, although it would normally receive close regard. The Court of Appeal therefore had to determine the application independently (paras [7]–[8]).
4. Once the respondent invoked the court’s assistance through judicial review, the matter entered the public forum. The private character of the Financial Services Authority’s disciplinary proceedings did not preserve confidentiality in the court proceedings. The same principle generally applies where a party invokes the court in relation to confidential arbitration proceedings (para [9]).
5. The possibility of embarrassment or damage to professional reputation was insufficient. There was no positive evidence of significant harm, and the proposed redactions were extensive and went to the heart of the judgments. The object of the proceedings was to test compliance with statutory requirements and quash the Decision Notice, rather than to protect privacy. Publication was therefore not strictly necessary to make effective relief possible (paras [8]–[10]).

Lady Justice Black and Sir Malcolm Pill agreed with Lord Justice Moore-Bick’s judgment.

• Court of Appeal (Civil Division): The court considered and dismissed the respondent’s application for anonymised and redacted publication. The supplied judgment does not state the outcome of the substantive appeal against the order below.
• High Court of Justice, Queen’s Bench Division (Administrative Court): Silber J made an order quashing the Decision Notice and took steps to prevent disclosure of the respondent’s identity: [2012] EWHC 1417 (Admin).