Greystoke v The Financial Conduct Authority

Derogations from open justice require strict necessity. The court must closely scrutinise the proposed measures, consider whether a less restrictive measure would suffice, and cannot treat the parties’ consent as determinative. Where articles 8 and 10 of the Convention are engaged, neither has automatic priority; the competing rights must be balanced on the facts. A legal duty of confidence is a significant public interest in that assessment. Restrictions on hearings, reporting, inspection and non-party access should be confined to the confidential material and imposed only to the extent necessary and proportionate.

Mr Andrew Lawrence Greystoke brought a Part 8 claim against the Financial Conduct Authority under the General Data Protection Regulation 2018 (EU) 2016/679, alleging breach of article 15 in responding to his subject access request. The FCA applied for protective measures because witness statements referred to confidential information which the FCA was legally obliged to keep confidential.

The parties largely agreed that part of the forthcoming trial should be private and that access to specified documents should be restricted. The issues were whether reporting of the private hearing should also be prohibited and how far the restrictions should extend.

1. Open justice. The court’s inherent jurisdiction permits a hearing, or part of it, to be conducted in private. Open justice is a fundamental principle, and any derogation must be strictly necessary. The court must consider whether a less restrictive measure would suffice. Parties cannot waive the public’s right to open justice by consent.
2. Convention rights. Articles 8 and 10 may both be engaged. Neither has automatic priority. The court must weigh the individual’s article 8 rights against the press and public’s article 10 rights on the facts. Where information is subject to a duty of confidence, the public interest in observing that duty is a significant consideration.
3. Documents and witness statements. Non-parties may obtain documents through the Civil Procedure Rules 1998 or the court’s inherent jurisdiction. Access under CPR 5.4C and inspection of witness statements under CPR 32.13 are subject to necessity and proportionality. Restrictions may be imposed on part of a document rather than the whole.
4. Application. It was strictly necessary under CPR 39.2(3)(c) and (g) for the small part of the trial dealing with the confidential information to be heard in private. The same reasons made it strictly necessary to prohibit reporting of that part of the hearing. Restrictions on documents were also necessary, but were confined to the portions containing or referring to the confidential information, including the relevant part of the draft order.
5. Those restricted documents were not to be provided to, or open to inspection by, non-parties without further order. Any non-party application for access was to be made on notice and determined after an oral hearing at which the parties could be heard. Costs were in the case.