Slade v Abbhi

A Part 71 examination may constitute a hearing held in public where the court exercises supervisory or other judicial decision-making functions. The absence of public attendance does not make a listed hearing private. Under CPR r 31.22(2), restrictions on subsequent use of documents require a cautious and proportionate balancing of privacy, fair-hearing and open-justice rights. Detailed personal financial information may justify restricting use of documents disclosed in a Part 71 examination, even though the examination was public and the documents were referred to in court.

The claimant obtained judgment for unpaid legal fees and an order requiring the defendant to pay £430,000. Following an unsuccessful appeal, the defendant was ordered to undergo a CPR Part 71 examination as to his means and disclosed extensive personal, family and commercially confidential financial material.

The defendant applied for declarations that the examination was private, or alternatively for restrictions under CPR r 31.22(2) on the claimant’s subsequent use and disclosure of the documents. The central issues were whether the examination was a hearing held in public for the purposes of CPR r 31.22(1)(a), whether it could be treated as private, and whether restrictions on subsequent use were justified.

1. CPR r 31.22(1)(a) engaged. The examination on 8 July 2020 was a hearing. Relevant features included prior disclosure, representation of the parties, questioning of a witness and judicial supervision. The Master also had to decide issues concerning compliance with disclosure orders, resumption of the examination and potential contempt. Documents had been read to or by the court, or expressly referred to.
2. The examination was held in public. It was listed in the usual way and arrangements enabled members of the public or press to access the video hearing. Actual non-attendance did not convert a public hearing into a private one. The court limited its conclusion to the facts of the particular examination and did not decide whether all Part 71 examinations are public hearings.
3. The court refused to classify the completed hearing retrospectively as private and declined to order that the resumed examination be private. CPR Part 71 contains no provision requiring privacy, and making an order on the basis that financial confidentiality was involved would effectively render all Part 71 examinations private.
4. Applications under CPR r 31.22(2) must be approached cautiously because open justice is fundamental. The court balanced the defendant’s Article 8 rights, fair and public hearing rights under Article 6, and the public and press access rights under Article 10, applying an intense and proportionate assessment of the competing rights.
5. On the facts, the defendant’s Article 8 rights carried substantial weight. The documents contained detailed information about bank accounts, financial affairs, family members and commercial dealings. The public interest in access to that detail was comparatively weak in the context of a Part 71 examination, particularly since no member of the public or press had attended.
6. The applications under grounds (1) and (2) were dismissed. An order was made under ground (3): the claimant could use the Part 71 documents only for subsequent enforcement proceedings and could not otherwise share their existence or content with any third party.

The judgment records that the defendant’s appeal from the underlying judgment was dismissed on 6 December 2019 and the stay of the Part 71 examination was lifted. The present decision concerned the subsequent enforcement examination and the defendant’s application for confidentiality protections.