Duchess of Sussex v Associated Newspapers Ltd (Rev 2)

At the pre-trial stage, confidentiality may properly prevail over open justice where disclosure of information supplied in litigation would make little contribution to public understanding of the legal process and would risk undermining the administration of justice. The court must conduct a fact-specific balancing exercise, giving intense focus to the circumstances of the case. Protection is not determined once and for all: interim orders must be kept under review as the evidence and procedural context develop. A schedule or appendix related to a statement of case may fall outside automatic non-party inspection under CPR 5.4C, even where it is filed with that statement. CPR 18.2 may restrict collateral use of information provided in proceedings where that restriction is necessary.

The claimant brought proceedings concerning the publication of extracts from a private letter. In responding to a Part 18 request, she identified five friends who had anonymously provided information for a People magazine article, placing their names in a Confidential Schedule. The defendant published material derived from the response and threatened to identify the friends. The application concerned whether the schedule was automatically accessible under CPR 5.4C and whether use of the information should be restricted under CPR 18.2. The proceedings had previously been subject to a strike-out decision: [2020] EWHC 1058 (Ch), which was not appealed.

1. The application was granted. The identities of the five friends were to remain protected pending trial or further order, and all parties were to refer to them as Friends A to E.
2. A schedule or appendix related to further information may be treated as a document separate from the body of the statement of case. It is therefore outside the automatic non-party inspection rule in CPR 5.4C(1), subject to the court’s power to control abuse of the process. The Confidential Schedule was not open to public inspection without permission.
3. The information retained the necessary quality of confidence. It had been supplied in circumstances importing an obligation of confidence, the claimant had clearly designated it as confidential, none of the friends had been publicly identified, and the defendant threatened disclosure.
4. The governing test was whether anonymity was necessary in the interests of the administration of justice. That required a fact-specific balancing exercise, with intense focus on the particular circumstances. The value of disclosure for open justice was limited because identification of the friends would add little to public understanding of the legal process. By contrast, confidentiality upheld promises made to the sources and reduced the risk of publicity deterring or pressuring potential witnesses before trial.
5. The court distinguished the transparency considerations applicable at a public trial from those applicable to pre-trial documents and case management. The orders were interim and had to remain under review, including at the Pre-Trial Review, because the balance could change if a friend became a witness or gave evidence at trial.

The judgment describes an earlier strike-out decision in the same proceedings: [2020] EWHC 1058 (Ch). That decision was not appealed. The present application was determined at first instance by the High Court.