ABC v Shulmans LLP

The principle of open justice is a fundamental starting point. A court may derogate from it only where specific countervailing rights or interests justify doing so on the facts. The public’s level of interest in a party’s identity is not a relevant preliminary threshold.

A contractual confidentiality obligation, including one protecting a settlement agreement, does not by itself justify anonymity or wide reporting and document-access restrictions. Any protection must be tailored to the information at risk and used as narrowly as possible. A professional negligence claim against solicitors does not ordinarily warrant privacy orders merely because privileged material may be disclosed; exceptional circumstances are required.

The claimant brought a proposed professional negligence claim against his former solicitors concerning advice given in earlier Employment Tribunal, Companies Act and High Court proceedings. Those proceedings had been compromised by a confidential settlement deed. The claimant applied for anonymity, redactions, restrictions on non-party access to court documents and reporting restrictions, relying principally on Articles 8 and 10 of the ECHR, confidentiality in the deed, medical information and possible disclosure of legally privileged material.

The central issue was whether those matters justified derogation from open justice at this stage of the proceedings.

1. Application dismissed. The court allowed only limited, temporary redactions concerning medical history pending completion of the statements of case and the first CMC.
2. The principle of open justice is a fundamental aspect of the judicial system and the rule of law. It enables public scrutiny of judicial decision-making and public understanding of the issues and evidence. Following Dring (on behalf of the Asbestos Victims Support Group) v Cape Intermediate Holdings Ltd [2019] UKSC 38, any departure requires a fact-specific balancing exercise addressing the purpose of open justice, the value of the information to that purpose, and the risk of harm to the judicial process or legitimate interests. The court rejected the suggestion that the exercise begins by asking whether the public has a sufficient interest in the identity of a party.
3. The confidentiality clause in the settlement deed did not, merely because it existed, create a sufficient basis for the proposed derogation. The claimant sought to use the deed in litigation while also seeking secrecy for his own benefit, and the clause permitted disclosure pursuant to a court order. The relief sought would principally anonymise names, rather than protect the confidential information itself. Any protection for confidential material must be justified by the circumstances and narrowly tailored. The alleged interference with Article 8 rights was also hypothetical rather than established.
4. ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329 and Raab v Associated Newspapers Ltd [2011] EWHC 3375 did not assist. They concerned different factual and procedural settings: protection against publication by the press, and the timing of a defence involving confidential information. The policy favouring settlements did not provide an independent basis for anonymity.
5. The possibility of limited waiver of legal professional privilege in a claim against solicitors did not justify the wide relief sought. Eurasian Natural Resources Corp v Dechert LLP [2016] EWCA Civ 375 involved exceptional potential prejudice to privilege against self-incrimination in an ongoing criminal investigation. No comparable feature was shown here.