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

The principle of open justice applies with full force to interlocutory hearings. Anonymity is exceptional and may be ordered only where the applicant proves by clear and cogent evidence that it is strictly necessary for the proper administration of justice. The court has no residual discretion to grant lesser protection once that test is not met. Reputational harm, embarrassment or private welfare will rarely justify derogation. Any order must be proportionate and no wider than necessary. The burden rests on the applicant. The court may also consider whether anonymity would prejudice the fair conduct of the proceedings, impede accurate reporting, or frustrate a legitimate public interest in information emerging from the litigation.

The claimants alleged that Barclays had induced them to enter loan and hedging agreements by fraudulent misrepresentations concerning the setting of LIBOR. In related case-management proceedings, lists of Barclays employees whose emails had been reviewed or identified by regulators were produced. A group of employees and former employees applied for anonymity and restrictions on identifying them during interlocutory hearings, relying on potential prejudice, unfairness and possible regulatory or criminal consequences. The media organisations opposed the application, invoking open justice and freedom of expression. The central issue was whether the proposed blanket anonymity order was strictly necessary for the proper administration of justice.

1. Application dismissed. The employees failed to establish by clear and cogent evidence that anonymity was strictly necessary for the proper administration of justice.
2. The general rule under CPR 39.2 is that all hearings, including interlocutory hearings, are public. The principle applies equally to disclosure and evidence-related hearings. Its purposes include deterring judicial arbitrariness, maintaining public confidence, facilitating the availability of evidence and supporting accurate public scrutiny.
3. The court applied the principles stated in Scott v Scott, Attorney-General v Leveller Magazine Ltd, R v Legal Aid Board, ex parte Kaim Todner and the Practice Guidance on interim non-disclosure orders. Derogations are wholly exceptional, must be strictly necessary, and must extend no further than required. The burden lies on the person seeking the derogation.
4. There was no sufficient evidence that naming the employees would prejudice criminal investigations or trials. The point could not justify a blanket order, particularly where most of the listed employees were not alleged to have been involved in LIBOR manipulation. The analogy with the anonymisation procedure under section 393 of the Financial Services and Markets Act 2000 was inapt because regulatory investigations are not conducted in a public forum.
5. No general exception exists to protect non-parties from reputational harm. The decisions relied on concerning anonymised non-parties did not establish such an exception and were an unreliable foundation for one. Anonymity would also create practical difficulties for the claimants in preparing and presenting disclosure disputes.
6. The public interest in accurate reporting of LIBOR manipulation, including the identity of implicated employees, supported openness. The proposed order was in any event disproportionately wide. A later application concerning a particular individual could be considered on clear and cogent evidence, but the present blanket application was refused.