DE v AB

Open justice is the fundamental starting point. A private appellate hearing is exceptional and requires strict necessity to achieve justice. The applicant bears the burden of proving that necessity with clear and cogent evidence, and any derogation must be kept to the minimum. The court should consider targeted protections, such as anonymisation, withholding particular information and reporting orders, before excluding the public and press. A final injunction against the parties does not ordinarily bind third parties or prevent publication of matters discussed in open court. In this case, a public hearing with continuing publicity protections under the Contempt of Court Act 1982 was a proportionate alternative to sitting in private.

The mother sought permission to appeal decisions of Bodey J dismissing her appeal against orders made by Senior District Judge Waller concerning financial provision for the parties’ child under Schedule 1 of the Children Act 1989 and an injunction restricting disclosure of information from the proceedings.

The father applied for the permission hearing to be held in private, alternatively for the parties’ names to remain undisclosed. He relied on an alleged threat by the mother to publicise information protected by the injunction. The central issue was whether the permission hearing should be private or could proceed in public subject to reporting and publicity restrictions.

1. Disposition. Ryder LJ refused the mother’s application to adjourn the preliminary issue. The permission hearing was held in public, subject to anonymisation and immediate and continuing orders restricting publication. Permission to appeal was refused.
2. Open justice. The starting point was that hearings, judgments and orders are public. A lower court having sat in private did not mean that the Court of Appeal should do so. Under section 1 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968, the appellate court had to give its decision in public unless good and sufficient grounds justified privacy. Any derogation required strict necessity, clear and cogent evidence, and the minimum degree of privacy. The decision was an obligation after application of the relevant test, rather than an unfettered discretion.
3. Balancing exercise. The court had to balance the public interest in open justice and reporting against the Convention rights of the parties, the interests of the child, the integrity of the judicial process and the risk of harm caused by disclosure. The assessment was fact-specific and proportionate. The court considered the purpose and value of disclosure and the risks to an effective judicial process and the legitimate interests of others.
4. Targeted protection. Excluding the public and press was not the only means of protecting information. The court could withhold particular information, anonymise the parties and child, or make an order controlling publication. A public hearing could therefore continue while confidential or prohibited information was protected. The existing injunction bound the parties but did not ordinarily bind third parties. The Spycatcher principle was directed to preserving the status quo pending trial and did not continue after a final trial and judgment. It could not prevent publication of matters discussed in open court.
5. Statutory and procedural powers. Section 12(1) a of the Administration of Justice Act 1960 did not apply to a public hearing, so matters discussed openly were prima facie reportable unless the court made an order. Section 97(2) of the Children Act 1989 did not apply in the Court of Appeal. Reporting restrictions could instead arise under the inherent jurisdiction or section 39 of the Children and Young Persons Act 1933, if applicable.
6. Application. The court accepted that disclosure during the permission hearing could undermine the injunction and the appellate process, and that anonymised material created a risk of jigsaw identification. It was unnecessary to determine the truth of the alleged threat. A public hearing with anonymisation, protection of information likely to identify the child, and extension of the existing injunction to the hearing was the more proportionate course.

• Court of Appeal (Civil Division): In the present judgment, the court ordered a public permission hearing with anonymisation and reporting restrictions, and refused permission to appeal: [2014] EWCA Civ 1064.
• Family Division of the High Court: Bodey J dismissed the mother’s appeal against orders made below on 20 December 2013 and 28 February 2014.
• Family proceedings below: Senior District Judge Waller made the relevant orders on 26 March 2013, including the disclosure injunction.