Ameyaw v Pricewaterhousecoopers Services Ltd

(1) The appeal is dismissed. The ET had no power to exclude or remove a Judgment from the public Register. Rule 67 requires entry of judgments subject only to Rules 50 and 94 and Rule 94 alone permits non-entry of written reasons in national security cases. (See paras [44.1]–[44.4].) (2) Rule 50 does permit orders restricting publicity, including anonymisation, but it does not permit the ET to decide that a Judgment should not be entered at all on the Register. The distinction between the national security power under Rule 94 and the general publicity power under Rule 50 is decisive (paras [44.2]–[44.4]; Rule 50 text at paras [44]). (3) Article 8 is not engaged in respect of material that was aired or became the subject of public examination at a later open hearing. Where material has been the subject of public trial discussion, there is no reasonable expectation of privacy (see discussion of Khuja v Times Newspapers Ltd and McKennitt v Ash) (paras [44]; [50]). (4) If Article 8 is engaged, the ET must carry out a fact-specific balancing exercise under Rule 50. The applicant bears the burden of clear and cogent evidence showing that harm from publication makes derogation from open justice necessary. The ET must weigh the competing interests of Articles 6 and 10 and apply proportionality (principles taken from Fallows) (paras [44]; [48]–[51]). (5) In this case the ET was entitled, as a case-management decision, to refuse to consider unsigned manuscript notes and to accept the view that the earlier judge's written reasons constituted the record for the subsequent open hearing. That refusal and the brief reasons given were proportionate to the issue (Rule 62(4)) and did not disclose error of law (paras [16]; [44]–[52]). (6) Conclusion: the ET did not misdirect itself or unlawfully fetter its discretion and was entitled to refuse anonymisation. The appeal is dismissed. Remains: costs and remittal matters not disturbed.