Graiseley Properties Ltd & Ors v Barclays Bank Plc & Ors (Rev 1)

The court refused a wide anonymity order sought by 106 employees and former employees of Barclays whose material had been disclosed to regulators in connection with alleged manipulation of LIBOR. The judge applied the fundamental principle of open justice (reflected in CPR 39.2 and relevant Strasbourg jurisprudence under Articles 6 and 10 ECHR) and held that any derogation from that principle must be strictly necessary and established by clear and cogent evidence. The applicants failed at the first hurdle: they did not produce specific evidence that identification would prejudice ongoing criminal investigations or otherwise make justice impossible.

The court also found that a blanket order would be disproportionate and likely to impede the claimants' ability to prepare and argue disclosure disputes, that many of those on the long list were not alleged to have been involved in LIBOR manipulation, and that some relevant names were already in the public domain. Practical difficulties and the public interest in contemporaneous reporting of an alleged systemic LIBOR problem weighed against anonymity.

Background and parties: Graiseley Properties and others sued Barclays alleging they were induced into loans and hedging transactions by false or misleading conduct in relation to LIBOR. At interlocutory stage Barclays disclosed two lists of employees (a Short List of 25 and a Long List of 207) whose emails had been reviewed by regulators. 106 individuals out of the 207 applied for anonymity at interlocutory hearings; media organisations and the claimants opposed the application.

Nature of the application: The applicants sought orders that their names and any particulars likely to lead to identification should not be published at interlocutory hearings, that they be referred to by code, and that any documents or witness statements avoid naming them.

Issues framed:

• whether the common law principle of open justice (and CPR 39.2) permits the anonymity sought;
• whether Articles 6 and/or 10 of the European Convention on Human Rights are engaged and, if so, how to balance them;
• whether the applicants discharged the burden of showing anonymity was strictly necessary and supported by clear and cogent evidence;
• whether any anonymity order would be proportionate and workable in practice, and whether it would prejudice the claimants.

Court's reasoning and findings: The court reiterated that hearings are presumptively public and that derogations are exceptional, justified only to the extent strictly necessary to secure the proper administration of justice. The applicants failed to show clear and cogent evidence that naming them would prejudice criminal investigations or otherwise render justice impracticable. The DOJ letter was general and lacked particulars; the UK regulators did not address the court seeking anonymity; and the applicants did not identify which individuals genuinely faced criminal risk.

The judge distinguished regulatory investigatory procedures (and the section 393 FSMA process) from public court proceedings and considered that any alleged unfairness of being named in court was insufficient, absent specific evidence, to displace open justice. The judge accepted submissions that a blanket anonymity order would hamper the claimants' ability to conduct disclosure and would be disproportionate, given practical difficulties, the presence of many individuals not implicated in LIBOR manipulation, the public interest in exposing systemic LIBOR issues and the fact some identities were already publicly known. The application was dismissed, subject to the possibility of narrowly focused later applications supported by clear evidence.

The interlocutory application for anonymity is dismissed. The judge held that the principle of open justice (CPR 39.2 and relevant ECHR jurisprudence) requires public hearings except where strict necessity is established by clear and cogent evidence; that burden was not discharged; and that the broad anonymity order sought would be disproportionate, impractical and likely to prejudice the claimants' case and the public interest in transparent reporting.