ABC v Shulmans LLP

The claimant, a former employee who sued his former solicitors for alleged professional negligence arising from litigation settled by a Global Settlement Deed dated 2 February 2016, applied for wide-ranging anonymisation, redaction and reporting restrictions under CPR Parts 5 and 39, section 11 of the Contempt of Court Act 1981 and Articles 8 and 10 ECHR. The defendant resisted the application.

The court treated the principle of open justice as the starting point and carried out the required balancing exercise (citing Dring). It found that the mere existence of a confidentiality clause in the settlement deed and the claimant's desire to preserve contractual confidentiality did not, of itself, justify the broad anonymisation sought. The court was also concerned that the application appeared to be motivated in part by a desire to prevent the owner of the company who was a party to the Deed from learning of the claim.

The court rejected the contention that routine disclosure of potentially privileged material in a solicitor negligence claim warrants the exceptional relief sought absent special circumstances (distinguishing ENRC). It allowed only limited interim redaction of paragraphs in the Particulars of Claim (and any Defence when served) dealing with the claimant's medical history, to be revisited at the first case management conference, and dismissed the remainder of the application.

This is a first instance commercial application for anonymisation, redaction and reporting restrictions in a professional negligence action brought by the claimant against his former solicitors. The claim alleges negligent advice in respect of litigation commenced in 2014–15 and seeks damages of just under £4 million. The prior proceedings had been compromised by a Global Settlement Deed dated 2 February 2016 which contained a confidentiality clause at clause 21.

The claimant sought an order substituting initials for the names of the claimant and other parties to the settlement deed, broad redaction of court documents, restrictions on third-party access to the court file and reporting restrictions. The stated legal bases included CPR Parts 5 and 39, section 11 of the Contempt of Court Act 1981 and Articles 8 and 10 of the European Convention on Human Rights. The evidence relied on included witness statements from the claimant and his solicitors, which expressed a concern that disclosure in the proceedings might lead to a claim by the other parties to the deed for breach of confidentiality.

The court framed the principal issues as: (i) whether Article 8 rights or other countervailing interests justified derogation from the open justice principle, (ii) whether confidentiality in the settlement deed gave rise to a right to anonymise proceedings, (iii) whether the fact that the deed settled litigation or that the proceedings may involve privileged material required exceptional protection, and (iv) whether any risk of breach of confidence was established.

The judge emphasised that open justice is the default position and that any derogation requires proper justification. The application was criticised as wide ranging and lacking precedent; the court noted an apparent shift in the applicant's stated purpose and concern that much of the true motivation was to prevent the other parties to the deed becoming aware of the litigation. The judge held that a contractual confidentiality clause does not automatically attract Article 8 protection sufficient to displace open justice where the claimant himself brings the claim, that anonymisation of names would not in any event secure the confidentiality relied upon, and that the risk of breach of the deed was speculative. The likelihood that privileged material would arise in the claim was insufficient, absent exceptional circumstances, to warrant the extensive relief sought. As a pragmatic interim measure the court authorised the redaction of passages dealing with the claimant's medical history from the Particulars of Claim (and any Defence when served) until the first case management conference. The remainder of the anonymisation and restriction application was dismissed.

The judgment comments on the rarity and exceptional nature of orders that derogate from open justice and distinguishes the circumstances of this case from authorities relied upon by the claimant.

The application for anonymisation, broad redactions and reporting restrictions is dismissed. The court allowed only limited interim redaction of paragraphs relating to the claimant's medical history from the Particulars of Claim (and any Defence when served), to be revisited at the first case management conference. Rationale: open justice is the starting point; confidentiality in the settlement deed and the prospect of privileged material do not, on these facts and absent exceptional circumstances, justify the wide-ranging secrecy sought; the application was wide-ranging, without precedent and partly motivated by a desire to prevent other deed parties learning of the claim.